Voinovich v. Ferguson

• Decision Date: 14 February 1992
• Docket Number: No. 91-1882,91-1882
• Citation: 63 Ohio St.3d 198,586 N.E.2d 1020
• Parties: VOINOVICH et al. v. FERGUSON et al.
• Court: Ohio Supreme Court

Page 198

63 Ohio St.3d 198

586 N.E.2d 1020

VOINOVICH et al. v. FERGUSON et al.

No. 91-1882.

Supreme Court of Ohio.

Submitted Feb. 10, 1992.

Decided Feb. 14, 1992.

On September 19, 1991, plaintiffs, Governor George V. Voinovich, Senate President Stanley J. Aronoff, and Secretary of State Robert A. Taft II, brought this action for declaratory judgment and injunction against defendants Auditor of State Thomas E. Ferguson, State Representative Barney Quilter, Attorney General Lee Fisher, State Senator Charles E. Henry, and State Senator Grace L. Drake, and against a class of John Doe defendants. Plaintiffs constitute a majority of the five public officials responsible for apportionment under Article XI of the Ohio Constitution. Defendants Ferguson and Quilter are the other two public officials responsible for apportionment under Article XI. Defendant Henry is the Senator of Senate District 32 of Ohio. Defendant Drake is the Senator of Senate District 22 of Ohio, which adjoins Senate District 32.

Defendants Ferguson and Quilter removed the case to federal district court, but the federal district court held that it lacked jurisdiction over the action under Article III of the United States Constitution and remanded the case to this court.

On November 6, 1991, plaintiffs moved to amend their complaint. The amended complaint omitted the cause of action for an injunction. On November 20, we granted the motion to amend; granted plaintiffs' motion to certify the record of the case from the federal district court; and ordered the parties to file evidence and responses to the amended complaint on or before November 25, 1991 and to file briefs on or before November 27. 62 Ohio St.3d 1209, 581 N.E.2d 560. Also on November 20, defendants Ferguson and Quilter filed a notice of withdrawal of their answer and counterclaim and first and second amended answers and counterclaims filed in federal district court.

On November 25, 1991, defendants Henry and Drake filed answers and counterclaims, defendant Fisher filed a motion to dismiss and motion for oral argument, and defendants Ferguson and Quilter filed a motion to dismiss. Plaintiffs and defendants Ferguson and Quilter also filed evidence. Also on November 25, two judges of the Sixth Circuit Court of Appeals entered an order staying the remand of the case, effectively blocking further action in this court. However, on December 12, the Sixth Circuit Court of Appeals, en banc, vacated the order of November 25.

On December 16, 1991, we ordered responses to defendants' motions to dismiss to be filed on or before December 18, ordered defendants to file any additional evidence on or before that date, and ordered the parties to file any miscellaneous motions on or before that date and to file briefs on or before December 23. 62 Ohio St.3d 1480, 581 N.E.2d 1387.

On December 20, 1991, defendant Drake filed her brief. On December 23, all other parties filed their briefs, except Henry, who filed his the next day; defendants Ferguson and Quilter requested oral argument and applied for a stay of proceedings, or alternatively, to extend the briefing schedule; and defendant Fisher renewed his request for oral argument. On December 27, plaintiffs moved to strike defendant Fisher's brief and request for oral argument, and moved to strike defendants Ferguson's and Quilter's evidence.

On January 13, 1992, this court overruled the motions to dismiss of Fisher and of Ferguson and Quilter; ordered defendants Fisher, Ferguson, and Quilter to file answers, and permitted them to file counterclaims, on or before January 27, 1992, and ordered the parties to brief, on or before January 27, whether counterclaims could survive dismissal of the plaintiffs' claim. 62 Ohio St.3d 1224, 584 N.E.2d 737.

On January 27, 1992, the parties filed briefs on the counterclaim issue, and defendants Fisher and Ferguson and Quilter filed answers without counterclaims. However, in their answers these defendants again raised the issues of jurisdiction, whether a justiciable controversy exists, and whether plaintiffs have standing to bring the action, first raised in their motions to dismiss. The case is thus submitted and the cause is before the court.

Benesch, Friedlander, Coplan & Aronoff, N. Victor Goodman, James F. DeLeone, Orla E. Collier III and Mark D. Tucker, Columbus, for plaintiffs.

Faruki, Gilliam & Ireland, Armistead W. Gilliam, Jr., Ann Wightman and Laura A. Sanom, Dayton, for defendants Thomas E. Ferguson and Barney Quilter.

Lee I. Fisher, Atty. Gen., Columbus, Kathleen McDonald O'Malley, Cleveland and Theresa Rittinger Schaefer, Columbus, for defendant Lee Fisher.

Lewis & Spencer and Scott W. Spencer, Columbus, for defendant Charles E. Henry.

Buckingham, Doolittle & Burroughs and Richard G. Reichel, Massillon, for defendant Grace Drake.

PER CURIAM.

Plaintiffs and defendants and counterclaimants Henry and Drake raise the issue of the constitutionality of Senate District 32. It is agreed that the district does not meet the population requirements of Section 4 of Article XI, Ohio Constitution, as its population is only 308,942 persons, 93.99 percent of a senate ratio of representation (328,700 persons). Section 4 prohibits creation of a district containing less than 95 per cent of a ratio.

Plaintiffs, defendants in the counterclaims, contend, however, that leaving Senate District 32 underpopulated was unavoidable because irreconcilable conflicts with Sections 9 and 11 of Article XI, Ohio Constitution, prevented adding population from adjacent territory. Section 9 provides that where the population of a county is at least 90 percent of a house ratio of representation, "reasonable effort shall be made to create a house of representatives district consisting of the whole county." Section 11 provides in part that "[c]ounties having less than one senate ratio of representation, but at least one house of representatives ratio of representation shall be part of only one senate district."

We hold that Sections 4, 9, and 11 of Article XI are coequal. When such provisions are irreconcilable, those public officials designated to apportion the state by Section 1 of Article XI have the duty to choose the proper course, and this court will not order them to correct one constitutional violation by committing another.

The court finds against the counterclaimants on their claim that the plan is unconstitutional and, accordingly, we find the plan to be constitutional.

Judgment accordingly.

MOYER, C.J., HOLMES, DOUGLAS and MILLIGAN, JJ., concur.

SWEENEY, HERBERT R. BROWN and RESNICK, JJ., dissent.

JOHN R. MILLIGAN, Jr., J., of the Fifth Appellate District, sitting for WRIGHT, J.

MOYER, Chief Justice, concurring.

I concur with the per curiam decision and write separately to state my opinion.

Having previously expressed my decision with respect to the issues of standing and justiciability of the issues before us, I find no need to restate them here. See 62 Ohio St.3d 1224, 584 N.E.2d 737.

The complaint filed by plaintiffs Voinovich, Aronoff and Taft presented a conflict between Sections 4, 8, and 11 of Article XI of the Ohio Constitution as they relate to Senate District 32 in the apportionment plan. It also sought a general declaration that the plan complied with all other articles of the Ohio Constitution and sections of Article XI, the Fourteenth and Fifteenth Amendments to the United States Constitution, the Voting Rights Act of 1965, and other applicable federal and state laws. However, that boilerplate language did not indicate the existence of any case or conflict or justiciable issue.

When defendants, Auditor of State and Representative Quilter, caused the case to be removed to federal district court, they filed answers and counterclaims in the federal district court case. After the federal district court remanded the case to this court for the reasons that it did not have subject matter jurisdiction, that there was no controversy under Article XI of the Ohio Constitution, and that plaintiffs lacked standing to bring the action, defendants withdrew their answers and counterclaims that had been filed in the federal district court. No counterclaims have been filed in this court by those defendants.

The second amended answer and counterclaim filed by defendants in the federal district court on October 8, 1991, alleged that the majority apportionment plan violated Sections 3 and 7 of Article XI. The third paragraph of the counterclaim alleged, inter alia: "In drawing the boundaries of the legislative districts, Plaintiffs violated Article XI, § 7 of the Ohio Constitution, which provides that district boundaries established by the preceding apportionment shall be adopted to the extent reasonably consistent with the requirements of Section 3 * * *." That paragraph is followed by seven paragraphs stating specific examples of alleged violations of Sections 3 and 7 of Article XI. The counterclaim placed in issue the application of Sections 3 and 7 of Article XI and alleged that the majority plan violated those sections.

On November 6, 1991, plaintiffs moved in this court to amend their complaint. The amended complaint was filed on November 20 and contained new allegations referring to the sections of Article XI that were raised in defendants' counterclaim and that were not placed in controversy in plaintiffs' original complaint. It is clear from a reading of the plaintiffs' first amended complaint that the allegations with respect to Sections 3, 7, and 10 are in effect a response, indeed a defense, to defendants' second amended counterclaim filed in the federal district court. On November 20, 1991, the same day plaintiffs filed their amended complaint in this court, defendants Ferguson and Quilter filed a notice of withdrawal of their answer and counterclaim and first and second amended answers and counterclaims filed in the federal district court.

I previously supported the judgment of this...