Alexander v. Taylor

placed Bar and his name Association Attorneys upon Roll of the date on the files the Notification

Executive Director

herein. THE 9 DONE BY ORDER OF SU- THIS COURT IN CONFERENCE

PREME MAY,

20th DAY OF 2002.

¶ ALL CONCUR. JUSTICES

2002 OK 59 ALEXANDER,

Chad D. A. Marshall Pratt, Ballard,

Snipes, Judith Currie

Carolyn McLarty, Audrey Ewing, L. Don

O’Nesky Keating, and Frank in his offi- capacity

cial as Governor of the State of

Oklahoma, Plaintiffs-Appellees, Colby Schwartz, Edwards and

Steve

Intervenors/Plaintiffs-

Appellees, TAYLOR, capacity

Stratton his official Tempore

as President Pro of the Okla- Senate, Larry Adair, E.

homa State capacity Speaker official his Representatives

House of the State

Oklahoma, Defendants-Appellants, Allen, Milton, Greg

Richard Roosevelt Porter,

Robinson and Interve- Joel

nors/Defendants-Appellants. 97,836.

No.

Supreme Court of Oklahoma.

June 2002.

As Corrected June

1206 Allen, Milton, Greg

Richard Roosevelt Robin- son, Porter. and Joel OPINION WATT, Vice Chief Justice. AND

FACTS PROCEDURAL

BACKGROUND ¶ Plaintiffs-Appellees, as residents and Oklahoma, registered voters of State petition seeking in- filed their junctive compliance with the relief to ensure governing congressional elec- laws in the of Oklahoma as a result of tions State petition the 2000 Decennial Census. relief request was amended to the additional Leibrock, Price, Fred A. William S. “Bill” Congres- of a declaration that The Oklahoma Carel, McFall, McCaffrey, Kay Phillips, B. § Redistricting Act of 14 O.S. 5.1 sional OK, Murrah, McVay City, & Oklahoma seq., Appellees al- et is unconstitutional. Braden, Hostetler, Efrem Baker & Mark leged it was determined the 2000 Census D.C., Washington, Plaintiffs-Appellees, for Congressional districts in that the number Alexander, Snipes, Chad D. A. Marshall Ju- Oklahoma must be reduced from six to five Ballard, Pratt, Carolyn McLarty, dith Currie population because Oklahoma’s had failed to Audrey Ewing, O’Nesky. L. and Don grow many that of other states as fast as Kirk-Shores, Judy Terry, Kristye Office of the 1990 Decennial Census. The 2000 since Governor, Hunter, and Mike Office of the population census revealed that Oklahoma’s State, OK, Secretary City, Oklahoma for popula- percentage as a of the nation’s entire Plaintiff-Appellee, Keating Frank offi- his tion decreased from what it had been under capacity cial as Governor Defendants-Appellants census. Oklahoma. capacities.1 sued in their official ¶ Appellees alleged pe- in their Lester, Lester, amended Loving & Da- Andrew W. tition, 21, 2002, February filed vies, P.C., Edmond, OK, for Interve- Legislature yet adopted a Oklahoma had not nors/Plaintiffs-Appellees, Edwards and Steve plan redistricting qualifying and that Colby Schwartz. candidacy deadline for for the United States Holladay, Holladay, Don G. Chilton & De- Representatives July House of Guisti, OK, City, Oklahoma for Defendants- They alleged Legislature unless Appellants. adopted redistricting plan in time for it to Slater, OK, implemented July be City, Lee Defen- before Oklahoma for deadline, rights “the interests and of Plain- dant-Appellant, Taylor. Stratton all in the tiffs and Oklahoma voters enforce- Long, Holladay, Heidi J. Chilton & De- applicable ment of election laws will be fur- Guisti, OK, City, Oklahoma Per- Thomas J. compromised, rights ther and their under relli, Block, Defendant-Appel- Jenner & participate federal and Oklahoma law to lant, Larry E. Adair. process in a election time- OK, “Skip” Kelly, City, ly equal Ronald manner will further violat- be Intervenors/Defendants-Appellants, ed.” Keating ley, 1. Governor Frank was sued in his offi- Kenneth Monroe and Thomas E. Prince were capacity capacities cial as Governor of the State of Okla- sued in their official as Members of realigned, and homa. The were later the State Election Board and were dismissed Keating plaintiff. prejudice. became a Glo Hen- Governor without relief, trial, Following five-day, non-jury request for their As the basis of May on court filed its 2 of the United Appellees cited Art. Constitution, establishing the Governor’s Plan as the Con- as amended States Amendment, plan implement- provides, gressional redistrieting § which to be Fourteenth Representatives shall ed for the State of Oklahoma. On June part, “the House of every three-judge panel chosen sec- of the United composed of members for the the several states” States District Court Western Dis- year by people ond appor- Oklahpma shall be trict of entered order “representatives according involving pending states case same issues as among tioned the several numbers, today. federal court de- respective counting the whole those before us their state_” Defendants-Intervenors, Appel- persons in each nied the motion number of Larry Taylor, E. to de- that the court ensure enforce- Adair Stratton requested lees implement congressional redistricting plan adopt clare that the ment of the laws and County plan place implemented by in Dis- redistricting to be congressional The federal court’s qualifica- the candidate trict Court was void. in sufficient time for process go stayed proceedings to forward ac- order also further there tion and election by appeal process in Okla- until the conclusion of the cording to the schedule established petition in Appellants this Court. filed their homa law. June'7, 2002 error in this Court on and we ¶ Taylor Larry Appellants 4 Stratton ap- granted Appellants’ motion to retain this Stay Redistricting filed a Motion to E. Adair peal on June 2002. (1) pending the enact Proceedings, earlier Legislature of a new by ment the Oklahoma (2) DISCUSSION Leg redistricting plan;

congressional adjournment May 2002 sirle die islature’s I. date; agreement among the unanimous or legislative enactment of a new THE HAVE JUR- OKLAHOMA COURTS redistricting plan reasonably antici THE ISSUES PRE- ISDICTION OVER adjournment pated by die to occur the sine BY THIS APPEAL SENTED objected stay. the' Appellees date. to ¶ stay, to trial court overruled the motion Appellants argue that because of Freeman, proceeded to trial. opinion the case v. Jones Court’s progeny, 564 and its 1943 OK 146 P.2d redistricting plans were submitted 5 Five hold that Oklahoma courts are we should They court. are identified as follows: jurisdiction to decide this matter.2 without Plan, Governor’s, Continuity, 1. sub- Clark, rely v. Appellants also on Smith by Appellees; mitted (D.C.S.D.Miss.2002), prob. F.Supp.2d 503 Plan, by Appellants; submitted Senate — Smith, nom., juris, Branch v. U.S sub Plan, submitted 3. Conference Committee (2002), , 153 L.Ed.2d . — by Defendants and Defendants/Interve- 1, § Art. support proposition nors; deprives Constitution of the United States #3, Plan submitted Defen- 4. House jurisdiction to consider con courts of state Defendants/Intervenors; and dants and redistricting disputes. For the gressional below, disagree Ap we with Plan reasons stated 5. Edwards-Intervenors’ laws); apportionment and Davis v. islative 2. After decision in Jones v. Freeman this court its (held: reap arising McCarty, 388 P.2d 480 from elec OK declined to act in other cases See, respect with County portionment would be modified Wagoner Board act tion laws. Election house, (held: Plunkett, respect to to senate but not OK 305 P.2d 525 state person, grant although "One jurisdiction constitutional one re Oklahoma courts lacked unsatisfied). requirement Be showing remained despite of fraudulent absentee vote” lief clear reapportion change of this Court’s failure the result cause ballots in sufficient numbers Board, McCarty, election); legislature a three state in Davis v. State Election of an Brown court, (held: relying judge on Baker v. Supreme federal district Court 1962 OK 369 P.2d 140 Board, Carr, Reynolds legislature v. State Election reapportion did so in jurisdiction de lacked 1964). (D.C.W.D F.Supp. unconstitutionality leg Okla. spite of the current clear reasons, pellants’ analysis present and hold that the courts of neither of which is here. jurisdiction First, Oklahoma have it was unclear whether the state courts hear and decide this matter. redistricting plan place could have a congressional time for elections because of here, If8 we fail to act the obvious effect necessity any pre- having plan such judge will be that the three federal district Act, approved Voting Rights under the empaneled court that has been to consider problem U.S.C. 1973c. No such exists problem created the failure of the parties agree minority here as the that no legislature agree redistricting legisla- on rights endangered would be if congressional tion will set new issue, adopted plans either of the which parties agree our stead. The that this will parties agree plan passed by are the likely be the case. We deem such an out- plan pro- Oklahoma State Senate and the unsatisfactory come based on both state law posed by Second, the Governor. the Missis- teachings and the of the United Su- States sippi court made clear that there was at least preme Court. possibility Mississippi legislature that the specific 9 No Oklahoma constitutional or might reapportion provide itself in time to statutory provision provides procedural Here, by elections. con- blueprint for how the trial court was to han- trast, legislature agree could not on a presented dle the issues to it here. Never- plan and, years two has theless, correctly we hold that the trial court die, adjourned leaving sine no legis- time for jurisdiction assumed that both it had and filing period lative action before the for con- justiciable controversy presented that a was gressional begins days. offices in a matter of Const., 2, 6,§ because of Okla. Art. which event, any In to the extent Smith v. Clark provides: interpreted proposi- can be to stand for the justice The courts of the shall tion that power state courts have no to act in open every person, be speedy and and 1, 4, redistricting disputes § because Art. remedy certain every wrong afforded for Constitution,3 the prohibits United States every injury and for person, property, acting, state courts from we decline to follow reputation; right justice or and and shall Carr, it. It is clear to us that Baker v. 369 sale, denial, delay, be administered without 186, 691, (1962) 7 L.Ed.2d 663 prejudice. Emison, and Growe v. 113 Given the unsatisfactory alternative to Okla- 1081, (1993), S.Ct. 1075 122 L.Ed.2d 388 both hearing homa courts deciding and this length section, discussed at some later in this we have reexamined jurisprudence our ad- 1, proposition stand for the § that Art. 4 dressing jurisdiction our in such matters and prevent does not either federal or state now subject hold that the trial court had resolving courts from redistricting disputes jurisdiction justiciable matter and a case or proper in a case. controversy presented. Further, was after carefully record, reviewing the we find that ¶ Freeman, 322, 11 In v. Jones 1943 OK the trial clearly court’s was not 564, 146 P.2d reapportion we declined to the contrary evidence, weight is Legislature despite the fact that correctness, presumption entitled to a and legislature the extremely mal-appor- was must, therefore, be affirmed. said, tioned. The inequality Court “The is so Clark, In10 Smith v. Appellants glaring which repels any that it presumption that on, strongly rely judge three legislation federal dis- approxima- constituted a fair trict in Mississippi enjoined court the state required by tion of what was the fundamen- courts from proceeding carrying with represents out the tal law. It an instance where congressional creation of new districts. The fair-minded men can entertain no doubt that court made clear that it doing was so for two inequality representation grave, un- § pro- 3. Article 1. 4 of prescribed the federal legislature constitution in each state there- part of; vides in material as follows: Congress may but the at time law times, places holding The regulations, and manner of except elec- make or alter such as to the Representatives, tions for places choosing Senators and shall be Senators. tures, legislature, reasonable, including unnecessary.” 1943 the Oklahoma OK ¶ 11,146 approv- routinely reapportion (quoting had refused them- P.2d at Schardien, 799, courts, Ky. selves, al, Stiglitz many including state this (1931)). Nevertheless, Court, power- they that routinely ruled S.W.2d jurisdiction Thus, it lacked anything held in that to do it. Court Jones less about some- ourselves, reapportionment “make thing had to and was done be done Baker nature....” duty that since v. Carr. The in Baker v. Carr court also contrary to our it is jurisdiction To extent recognized have that courts expressly overruled. holding today, Jones is redistricting matters under constitution, § 4 point- Art. of the federal County Election Board v. Wagoner 12 In out, ing “The cases involved the first redis- Plunkett, P.2d we 1956 OK 1, § tricting Art. 4].” of states [under jurisdiction under Okla. refused assume U.S. at 82 S.Ct. at 701. 2, the result of an Art 6 to correct Const that had turned on fraudulent absen- election ¶ 15 no doubt that There is now both provided laws the election tee ballots because jurisdiction have state federal courts procedure. The dissents Plunk- a recount reapportionment both legislative craft ett, legisla- that no however, position took when, congressional redistricting plans (cid:127) away take could construed to tion here, legislature has failed to act. In 2, § duty 6 “to under Art. correct court’s Emison, Growe regardless of the wrongs when occur L.Ed.2d they may arise.” area of life which legislatures both state and state stressed dissents and agree with the Plunkett We apportion appropriate “agents courts are majority expressly the Plunkett overrule explain ment.” court went on to opinion on this score. primarily one responsibility for the decided, many 13 At time Jones was said, states when too) (and courts, state courts took primacy designing of the State reapportionment congres- and position that [Congressional] compels districts federal strictly redistricting legislative sional were in drafting court to action [to defer state matters,” power “political beyond the of the through the redistricting where plan] correct, regardless courts to or revise branch, judicial begun has its or by legisla- problems created constitutional highly political task itself. Carr, In Baker v. ture’s failure to act. [Emphasis original, as in bracketed mate- 691, (1962), 186, 7 L.Ed.2d U.S. 82 S.Ct. added for 507 U.S. at 35 clarification.] rial changed court all this and made clear 33,113 and 1080. and S.Ct. at 1081 strictly reapportionment legisla- not a teaching of Emison and There, judge enterprise. a three federal tive right is that have a to have Baker citizens in Tennessee had held that it district court apportioned legislature properly and their subject jurisdiction lacked matter and that no congressional properly their drawn justiciable claim had been stated an action seeing that this responsibility and the reapportionment brought require states, right is rests with enforced had legislature, which failed Tennessee a legisla failure of the federal courts. The reapportion 1901. The itself since United act is of the state’s citi ture to a violation Supreme reversed the three States Court 1, § Art. rights under zens’ constitutional judge court’s dismissal held that district 14th to the U.S. and the Amendment Consti plaintiffs, on all who had sued behalf of subject to tution. Such a failure is redress voters, a cause Tennessee stated of action only by act and by the state if it court will protection equal on based the denial if it not. the federal court will judge the three district law directed to hear and decide the case. changes brought profound 17 Given the Baker, Emison, in the law retrospect, 14 In the reason the court felt about cases, longer no afford change this can necessary profoundly the law other Court it to so luxury declining act in matters such Many legisla- in Baker v. clear. state Carr is action, today as the one ground ty deprives before us on the to this whose absence exclusively subject that such decisions are jurisdiction. vested Court matter We 1, legislature. It is now clear that disagree. Appellees Art. dismissed the State § 2 and the 14th Amendment to the federal Appellants Election Board. filed a motion to provide right constitution to citizens of this proceedings dismiss in favor of the in federal court, state to seek redress from the Oklahoma passed re-joining after the deadline legislature courts when the fails to create party, raising State Election Board as a congressional new districts consistent indispensable party its argument for the first requirements constitutional and that if this Appellants time. allege cannot now as error grant sought, Court does not the relief they helped a situation to create. See Aron Aronson, courts will do it for us. For 74, these son v. 1970 OK 468 P.2d 493. reasons, expressly Moreover, we overrule Jones Free- the record reveals the Board is man, Wagoner County Election implement Board v. willing whatever lawful redis Plunkett, Board, Brown v. State Election tricting plan given implementation. to for McCarty, Davis v. other Appellants of our prejudiced cannot show opinions they might extent that Thus, party. the Board’s absence aas we proposition construed to stand for the reject Appellants’ contention that the ab the courts of Oklahoma should decline to act party sence aas of the State Election Board legislature when the entity another state deprived subject the trial court of matter fails to jurisdiction. draw districts that are 1, requirements consistent with the of Art. ¶ 20 We hold that the trial court had sub- § 2 and the 14th Amendment to the constitu- ject jurisdiction matter pre- over the issues tion of the United States. justiciable sented to it and that a controversy ¶ Appellants Gralike, cite Cook v. presented, which the court had the obli- 510, 1029, 121 S.Ct. L.Ed.2d gation to resolve under Okla. Const. Art. (2001), Limits, (quoting U.S. Term Inc. v. court, therefore, § 6. The trial committed no Thornton, 514 U.S. 115 S.Ct. holding. error in so (1995)); Gore, L.Ed.2d 881 Bush v. 531 U.S. (2000); 121 S.Ct. 148 L.Ed.2d 388 II. Holm, Smiley 52 S.Ct. STANDARD OF REVIEW (1932); 76 L.Ed. 795 and Davis v. Hilde brant, 60 L.Ed. ¶ 21 We stated the standard of re in support of their claim that the applies equitable view that actions in Mer subject jurisdiction trial court lacked matter Commission, rill v. Oklahoma Tax 1992 OK opinions here. None of these apply here. ¶ 7, 634, 53 831 P.2d 640-41: Term U.S. Limits involved the constitutional Because when the trial ... court was ity of purported state enactments that sitting equity, in the standard review of limit the terms of Congress United States applicable ruling to the is whether it is men and Senators and Bush v. Gore arose clearly contrary weight the evi- of hotly from the contested Florida election re dence. in chancery While appel- case an count of the in presidential ballots the 2000 evidence, late court weigh the it will Smiley election. and Hildebrant were decid neither disturb the trial findings court’s 1916, ined 1932 respectively, long before nor its decree unless the chancellor’s deci- either Baker v. Carr or Emison. We see pass sion fails to muster under this well- nothing opinions in of sup these that known standard of review. Absent the ports Appellants’ contention that state courts breach, appellate standard’s court must are constitutionally prohibited granting indulge presumption in the that the decree relief for mal-formed is correct. when their legislatures state have failed to do [Emphasis original, as in the omit- footnotes so. Graham, In ted.] Robison v. 1990 OK 93 ¶ ¶ Appellant 30, 19 610, also contends that the 799 P.2d 618 we vacated Court of indispensable State Election par- Appeals Board is opinion and reinstated the trial

1211 Miller, (S.D.Ga.1995), F.Supp. v. 922 1556 equitable in an action be- court’s Johnson, supra. v. ruling against not sub nom Abrams “the was trial court’s cause affd (1) Thus, pre- criteria are: among Included these of the evidence.” weight the clear districts, serving existing cores or commu- judgment here is of court’s unless trial (2) interest; providing geographical- of weight of the nities clearly contrary to the evidence (3) districts; ly compact minimizing presumption splitting that indulge must we (4) subdivisions; political maintaining For the reasons of his- correct. trial (5) lines; placement opinion, hold torical of district fair- in III of this we stated Part voters; avoiding judgment was con- ness contests not that trial court’s running for weight of the evidence and between incumbents reeleetion. trary to the clear presumption that it was entitled to the major dispute Appel 24 A between rightly decided. Appellees lants and is the treatment of in major proposed plans, cumbents the two III. the Senate Plan and the Governor’s Plan. Appellees avoiding contests contend be THE TRIAL THE RECORD SUPPORTS objective legitimate is a tween incumbents CHOOSING COURT’S JUDGMENT redistricting process, citing Karcher v. PLAN THE OVER GOVERNOR’S 725, 2653, Daggett, 462 103 S.Ct. U.S. THE PLAN SENATE (1983); Winter, L.Ed.2d 133 Jordan Legislature has the While (N.D.Miss.1984). F.Supp. 807 It was held congres the State’s power duty to draw Karcher, 740,103 2653, at S.Ct. U.S. plan, the court’s role redistricting sional avoiding policy contests be process determining limited to wheth among legiti was included tween incumbents statutory de er there are constitutional objectives, proper showing mate which “on Seamon, Upham fects. justify population could minor deviations.” 725(1982). All S.Ct. 71 L.Ed.2d Weiser, also White v. U.S. See case stipulated in the instant that all have that district “The fact boundaries satisfy the constitutional plans the submitted way may have drawn mini been requirement person, one vote” under of “one pres contests between mizes number Constitution, § see Abrams v. Art. in and of itself ent incumbents does Johnson, [Citations omitted.] invidiousness.” establish (1997), and that there are no L.Ed.2d 285 however, Appellants, cite hold- cases statutory un regard violations issues protection ing that of incumbents should be Act, Rights Voting Section 2 der other criteria have been subordinated after Therefore, this Court must U.S.C. See, e.g., Wyche v. considered. Madison judg the district court’s determine whether (5th Jury, 769 F.2d Parish Police of the “Governor’s ment its selection Cir.1985). They contend error was com- also Plan,” Plan,” “Continuity also is a called starting point mitted the trial court’s because policies of plan that continues legislative criteria was consideration expressed previous redistricting in its Appellees respond protection incumbents. Weiser, plans. See v.White supported by is not the that contention (1973). S.Ct. 37 L.Ed.2d judgment in the record. The statement ¶ rule, the court, Appellants issue is reference general as a which take A23 including, applied, “what legislative policies principles guided by to be should looking principles, underlying existing plan. starting are called neutral policy therefore, of state in not expression last clear is the 1991 Plan. point analysis, Johnson, previ- only plan but in results current 521 U.S. at See Abrams v. added,] Weiser, [Emphasis This 1925; ous elections.” S.Ct. White imply that the court’s Widely recognized “neutral statement does 93 S.Ct. 2348. major focus results because was election redistricting be considered. criteria” Legis- the 1991 included 103 also consideration Daggett, Karcher v. See (1983); redistricting crite- lative Plan the neutral and 77 L.Ed.2d Johnson Moreover, presented ria. evidence was tawatomie and Seminole Counties District the trial court that the 1991 Plan drew dis- 5 have common economic interests and are representatives tricts in which contiguous. incumbent proposed plans All of the create paired against were not each other. Com- majority two popula- districts with the of the Plan, pare Repre- areas, this to the Senate districts, which tion from rural and three paired against Rep. sentative Istook is Lucas predominantly are which and ur- suburban Rep. alleged and Watkins in District ban. attempt Rep. through polit- remove Istook voters, 28 As to fairness to evidence was gerrymandering.

ical parties’ experts received from the Gaddie Copeland and agree competitive who proposed 26 None of legislative plans healthy districts are essential perfect. represen- to a The task before this Court is to districts,” democracy. “Competitive tative determine whether the trial court chose a according Copeland, plan constitutional, “responsive,” are which is complies with is, they ability allow for the statutory requirements voters to Voting of the Act, express changed opinions. Rights pref- When voter adheres to the change, likely erences it is policy repre- more their previous plan. of the State under the change. sentation will Despite Copeland plans proposed, the fact five Gaddie and agree also that the Senate Plan is the have narrowed the focus to most con- (1) Plan, responsive plan, competitive sideration with two of: seats. Governor’s also Plan, In Plan, the Governor’s Continuity termed the there are four safe proposed by Ap- Republican pellees, Plan, only competitive seats and one proposed Senate seat, which is the Appellants. currently district Democrat, elects a according to Gaddie. ¶27 presented Evidence was that each Copeland opined that one seat in the Gover- plan single has a district that deviates from just nor’s Plan barely competitive, and if 690,131 by only the ideal of person, one Republican seat, an incumbent runs for this population thus maintains equality. Addi- it will result in a 1 Republican congres- 4 to tionally, presented evidence was that both above, delegation. however, sional As stated plans counties, split only four less than Plan, under the 1991 the 2000 results favored plan, including other the 1991 Plan. The Republicans 5 to 1. split county fourth in the Plan Senate arises proposed plans merit, 29 Both have purpose for the sole moving people both have faults. When all factors are con- from one district to another to achieve the sidered, supports the record the trial court’s requirement federal constitutional equal decision to choose the Governor’s Plan as population among the districts. Oklahoma nearly more continuing legislative poli- County is divided into at least two districts cies of the 1991 Plan than the Senate Plan. plans. under both splits Senate Plan Thus, the trial court committed no error in municipalities; splits Plan Governor’s doing so. Although Appellants urge us to municipalities. Tulsa is included under one substitute the Senate Plan for the Governor’s congressional district under the Governor’s Plan, the standard of applicable review Plan, here but the separates Senate Plan North prohibits such a result. As the trial court’s Tulsa from the City. rest of the May- Tulsa’s clearly contrary is not or LaFortune testified it is not in Tulsa’s weight evidence, it is entitled to a split separate interest it into districts. presumption of correctness and must be af- Mayor Kirk Humphreys of City firmed. testified in favor of the Governor’s Plan be-

cause it retains core historical districts and CONCLUSION put does not largely metro areas in rural ¶ Beverly districts. Hodges, Oklahoma jurisdiction Coun- 30 The trial court had to hear ty Commissioner, testified that the Gover- and rule on the issues in this case under nor’s Plan unites City 2, Oklahoma § under a Okla. Const. Art. opin- 6. Our earlier single leader in supports ions, District 5. She also Freeman, 322, such as Jones v. 1943 OK Plan, the Oklahoma, Governor’s in 564; that Pot- 146 Wagoner County P.2d Election

1213 Plunkett, 329, judicial in appropriate State’s branch circum- 305 P.2d 1956 OK v. Board Board, stances, primary responsibility appor- for 1962 the 525; v. State Election Brown 140; McCarty, 36, congressional v. 1964 tionment of their federal and P.2d Davis OK 369 Emison, 480; opinions legislative 5, any other state districts. Growe v. P.2d and OK 388 1075, conclusions, 25, expressly 122 are 507 U.S. 113 S.Ct. L.Ed.2d 388 reaching the same pan- (1993)(three-judge that held the federal district court extent overruled timely required to hear cases el to defer to state court’s courts must decline Oklahoma congres congression- of efforts to and grant remedies for violations redraw districts). 1, § Art. 2 redistricting disputes under al The at Oklahoma Constitution sional 7, 7(a) provides in pertinent part 14th to the United Article the Amendment [of This result is necessi Courts the State of “[t]he States Constitution. District Carr, original jur- 82 by Oklahoma] Baker v. shall have unlimited tated justiciable of Fur- and Growe Emi isdiction all matters-” 7 L.Ed.2d ther, son, Article 113 S.Ct. Oklahoma Constitution at (1993). reposes appellate juris- § 4 in this Court L.Ed.2d to diction the decisions of our District review ¶ absence the State Election The simple fact is Courts. The Okla- not party deprive a to suit did as this Board appropriate homa state courts and jurisdiction subject matter the trial court subject juris- have concurrent matter failed raise it until was too Appellants to as controversy presently diction over the before a re-join party board as to late to election therefore, .wrong, It for this us. would be event, undisputed any In it is the suit. favorably Appellants’ to on re- Court rule in Board act accordance the Election will (made quest page four of at their June the orders this Court. with case) response this that we brief ¶ judgment trial is entitled court’s merely judgment vacate the lower court’s presumption of unless it is a correctness entered this matter “allow the three- contrary weight “clearly the evi- judge [panel Federal District Court the] Tax Merrill Oklahoma Commis- dence.” District of Western sion, P.2d 640-41. 1992 OK 53 plan adopt for use this new ample there was record reflects that year’s might be elections.” Such course support the trial court’s decision evidence follow, Court but it the easier one for this Plan over Sen- to choose Governor’s would be the course charted Unit- is, The trial there- ate Plan. court’s Constitution, the ed States Constitution fore, affirmed. Oklahoma, or the laws of the State of State Nation. AFFIRMED. (2000) provides § 2c 2 Title 2 U.S.C. HARGRAVE, C.J., (joins HODGES follows:

LAVENDER, J.), (by separate LAVENDER KAUGER, SUMMERS, writing), Ninety-first each entitled In State WINCHESTER, BOUDREAU, JJ. —concur. Congress Congress subsequent or in Representa- than thereafter to more one OPALA, (by separate writing) J. —concurs pursu- apportionment made tive under an part. part, dissents 2a(a) of this provisions ant to of section LAVENDER, J., concurring specially: title, be established law there shall equal the number Supreme Court has number of districts 1 The United States is so Representatives to which such State now us that issues of the sort before decided entitled, Representatives shall justiciable See Baker v. are of a nature. established, so Carr, only elected from districts L.Ed.2d Repre- no to elect more than one (1962)(involvingreapportionment of district State (except that a which is Assembly). The sentative Unit- of Tennessee General Representative than one Supreme unequivo- also entitled to more Court has ed States previous elections has in all and which cally determined that the United States Con- States, Representatives Large elected its including stitution leaves Representatives Large elect its action. impediment Its absence is not an Ninety-first Congress). granting I today’s ap- relief. dissent from proval drawing of the district court’s of OHa- I import As understand the above congressional homa’s districts. This case is congressional federal statute the five House jurisdiction about neither testing nor the con- Representative Members from OHahoma orthodoxy legislation. stitutional Here the by that will upcoming be elected virtue of the parties camouflage legislative by nonfeasance cycle supposed election are to be elected manipulating judiciary filling politi- into a by from districts “established law”. As ev- judicially-created cal vacuum with a district- eryone aware, the current districts that ing plan. The judicia- law does not allow the place years have been for about ten can no ry commission, roving filling be such longer be used. This is so because OHa- political voids. party Because no in this losing Representative homa is go- are—we lawsuit congressional established ing from six to presently five—and there are anyone must be drawn six districts rather than five. —much judiciary less this court —and the should ¶ I recognize, my as I am colleagues sure upon not intrude areas where there are no also, on this legisla- Court do that it was the cognizable injuries redressed, to be I recoil tive gov- and executive branches of our State any holding dignifies dispute which had, respective ernment within their by raising it to a redressible claim. passage approval roles of a valid law, primary responsibility the initial and I

promulgating a accomplishing congres- law redistricting. sional I recognize also that no THE ANATOMY OF LITIGATION such passed by law was both houses of our Legislature ¶2 approved by the Gov- difficulty of determining “plain- during ernor recently legisla- concluded tiffs” and “defendants” in this “lawsuit” tive recognition session. Such way is in no give pause should the court in assuming that denigrate intended to co-equal legislative cognizable claim original exists. In the or executive govern- branches of OHahoma’s petition, January dated plaintiffs ment, merely point but out that without Snipes Alexander and sued Governor Frank juncture court intervention at this no valid Keating, members of the OHahoma State congressional redistricting prior will occur Board, (the Election Taylor Stratton Presi- because, the upcoming cycle election prac- Tempore dent Pro of the OHahoma State tically, there is no Senate) reasonable chance that the Larry (Speaker E. Adair of the legislative and executive branches will have Representatives), OHahoma House of all in opportunity again revisit the issue in respective their capacities. Plaintiffs, official timely Although manner. I do not relish registered as voters par- with an interest in having to process be involved in the of con- ticipating in the 2002 elections for members gressional redistricting, I simply do not be- of Congress OHahoma, from the State of luxury lieve I have the merely passing this sought “injunctive relief to ensure that matter off on some other court. In that the State of OHahoma has a constitutional redis- District subject jurisdiction Court had matter tricting plan place comply in time to justiciable of a controversy this Court has filing deadline for elections duty responsibility to review the They OHahoma.” based their claim on lower court’s was entered. Constitution, Article 2 of the U.S. by § amended 2 of the Fourteenth Amend-

¶4 I am authorized to state that Justice ment. For II, reasons I will discuss in Part Hodges joins expressed the views herein. petition should have been dismissed for OPALA, J., failure to dissenting part. state a claim for which relief granted. ¶ 1 I concur in opinion the court’s insofar as it holds that the subject district court had Among other various interventions and jurisdiction matter and that the State Elec- realignments in this tion Board is not an party essential to the Election Board officials were dismissed as Repub- immediately defendants, Keating, a obsolete and invalid. This Governor and lican, plain- a capable electing rep- from a defendant to leaves five switched Tay- resentatives, tiff, separating from defendants congressional himself but no with dis- Adair, shifts Democrats. These subject lor and both judiciary’s tricts. The function is to align clearly place presumably to more took plans in districting that are effect to constitu- against political interests one the dominant testing tional under the Marshall Doctrine of another, any manage to mistake lest court Here, judicial nothing there review. is to partisan anything more than this case for test but vacuum! I remain uncon- bickering. districts, congressional vinced that without resulting at-large

the situation —election likely congressional unpa- each seat —while II involved, latable to all here unconstitution- A TO STATE COGNIZABLE FAILURE any grounds. plaintiffs-appel- onal Neither AND REDRESSIBLE INJURY defendants-appellants lees nor bothered to CLAIM why at-large mention for all election five illegal. be seats would I, § argue 2 of that Art. the Plaintiffs Constitution, §by 2 of as amended the jobmy attempt 6 It no to to is more craft Amendment, necessitates Fourteenth cognizable remedy claim than it is to a non- my roughly fifty years action in this case. In injury. the argu- existent But for sake of law, fairly in the I have become familiar legal attempt ment I education will juris- and the the United States Constitution imagine possible injury what this case was I prudence interpreting it. am unable to First, recognize meant I to redress. that 2 n command I, § jump from Art. make 2a(c)(5) § USCS states “Until State is apportioned “representatives shall be provided by in redistricted the manner among according to the several states their any apportionment, law after ... if thereof numbers, counting respective the whole num- Repre- there a decrease in the number in state ...” and the persons ber of each sentatives and number districts such to the claim that Fourteenth Amendment State, number of exceeds such decreased (or other) any court must draw such this Representatives, they shall elected from they not exist. And districts when do Perhaps parties large.” at if the State clearly do not exist. (and thought gave any no evi- this statute of 2000 cen- 5 Once results decennial exists) they thought any dence of such felt repre- particularly, number sus— § repealed by statute that 2 USCS 2c this are entitled sentatives to which Oklahomans implication.2 from six to five—were to elect decreased ¶ Perhaps encouraged known, Congressional made the Oklahoma by panel reading three-judge §§ Redistricting Act of 14 O.S.2000 5.1 possibly overlapping stat- necessarily which read these seq., et became functus officio1— (46 Representatives” per- apportionment literally means "a task 1. Functus officio 2a(a)], 26), applied things It is which have there [2 formed." USCS Stat. amended office, function, discharged or "fulfilled law of dis- be established a number shall purpose, accomplished the therefore of [are] Representatives equal to number of tricts authority.” or Black’s Law Dic- no further force entitled, Repre- is so which such State Edition, (1979), p. tionary, Special Deluxe Fifth only elected sentatives shall be Com'rs, Macy County 606. See Board of established, more than so no district to elect OK at n. P.2d (except Representative that a State which one Representative than one is entitled more concurrence, 2. As Lavender notes Justice previous elections elected which has in all that, § USCS 2c states Large may Rep- Representatives elect its its at Ninety-first in the Con- In each entitled Ninety-first Large Con- resentatives gress subsequent Congress thereafter gress). Representative under an than one more 2a(c)(5) § 2c passed was was while provi- apportionment pursuant made passed Both are still in force. in 1967. (a) 22 of the Act subsection of section sions of provide "An Act to of June entitled Kirkpatrick,3 First, Shayer way dispositions. summary the lower court utes this exactly Shayer pre- must what issues were summarily affirmed establish Su light prior of in sented all the facts Court,4 swipe preme vague and this is the Second, case-. must if court determine interpreting has to nearest the Court come necessarily Supreme Court decided those approval Its two statutes. inconclusive summarily disposed it issues when insufficient law man evidence enlightening concurring opinion, case.9 In an into rather dates a division than an Justice Brennan wrote that state and federal at-large election. judges hoping glean to a information from ¶8 reasons such a Several bolster belief. summary affirmation must determine First, repeals by implication are not favored.5 arguably “not even ... the affirmation Second, Shayer petition was not a for certio- upon ground. some ... [rests] alternative appeal rari, an from Federal but a District interpreted The judgment should not be as panel, obligated Court which the Court to questions deciding the constitutional unless Third, way. decide the matter in some sum- disposition no other construction of the mary multiple of affirmations cases with is- eminently plausible plausible.”10 It is may frequently sues hold little and hold noth- Shayer the Court’s affirmance of could have Mandel v. ing precedential In of value.6 grounds. rested on number of other I that, Bradley7 Court held “because a Shayer v. therefore decline to follow the summary affirmance is an affirmance of the Kirkpatrick opinion’s construction of the fed- judgment of only, rationale the affir- eral at statutes issue. gleaned solely may mance not be from the Rather, provisions 10 I 2 read the opinion below.”8 leg- they prohibit USCS 2c hold that ¶ 9 Mandel created a two-step test islature deliberately designing a redis- apply determining quantum courts to tricting plan at-large rep- which would elect precedential weight, resentatives, any, if of the Court’s but find them silent about (W.D.Mo.1982). F.Supp. summary 3. 922 dispositions, 541 status to has been sus- pended. [See In re Rules the U.S. Court 966, Kirkpatrick, 4. 456 U.S. 102 S.Ct. Schatzle Circuit, 36, Appeals the Tenth 955 F.2d 2228, (1982). Summary 72 L.Ed.2d 841 affir- (10th Cir.1992) (giving background historical dispositions simply mances this are such as sans supporting adopt court's decision rule that explicitly-reasoned decision-making process; precedential weight unpublished denies they merely affirm the of a lower court opinions except under doctrines of law of the ’ explanation. without estoppel, judicata).] collateral and res every The Federal Circuit allows citation to See, e.g., Interpretive Corp. 5. Universal Shuttle disposition except of the court those unani- Comm., Washington Metropolitan Area Tratisit designated mously nonprecedential. FED. 186, 193, 358, 354, 21 L.Ed.2d permitting summary CIR. R. 47.8. Rules dis- (1968) States, (citing 334 342, Wood v. United 16 Pet. positions . remaining 363, circuits are silent (1842); 10 L.Ed. 987 FTC v. A.P.W. precedential (other Co., pre- about the value Paper than S.Ct. effect) (1946)). dispositions. clusive of such 1ST 90 L.Ed. CIR. 27.1; 47.6; 34(a); R. 4TH CIR. R. 5TH CIR. R. precedential summary 6. dispositions value of 6TH R. 19. CIR. According is often difficult to determine. to one Dragich, Martha J. Will the Federal Courts scholar, regard appel- as of to federal Appeal if Perish Publish? Or does the De- affirmations, summary late clining Opinions Explain Justify use The Federal Circuit has stressed that a sum- Threat?, Judicial Decisions Pose a Greater mary disposition should viewed aas Am. U.L.Rev. 763 at n.21. adoption blanket ing of the district court’s reason- "any ground upon because it be based 7. 432 S.Ct. 53 L.Ed.2d 199 appropriate to tire case.” Quad Envtl. Tech. curiam). (per Dist., Corp. Sanitary v. Union 946 F.2d (Fed.Cir.1991). In the District of Colum- 8. Id. at S.Ct. 2238. bia, Third, Second, Seventh, Eighth,-and Ninth Circuits, summary dispositions prece- are not 175-80, 9. See Id. at 0.23; 11(c); dential. D.C. CIR. R. 2D CIR. R. 5.6; 53(b)(2)(iii); 3D CIR. R. I.O.P. 7TH CIR. 47B, I; (Brennan, J., 8TH CIR. R. APP. CIR. 10. Id. 9TH R. 36-3. S.Ct. 2238 concur- 36.3, precedential ring) added). denying (emphasis Tenth Circuit Rule expressly preme has never overruled affirmatively to create dis- Court forcing court doctrine, courts continue legislative nonfeasance re- tricts when apply parties’ Despite are bound to if.15 regime of plainly constitutional sults prove injury, failure constitutional con- judicial policy and at-large elections. Public clearly stitutional issues are alive well reading. Since independence counsel such this case. to imme- the 2000 census was the effect of congressional dis- diately the 1991 invalidate rulings 12 When a court reviews the at-large precipitate elections

tricts and novo, reasoning gives of a trial de with the terms of USCS accordance judge. little or no deference to the trial 2a(c)(5), clear and there is no command objective reviewing court’s is not limited to qua requirement non divide states a sine ascertaining whether the court erred. lower congressional representatives multiple with such, only liberty, “As at but is districts, I accede into cannot court’s required, to comb the record in of the search redressible claim or legally that a view facts of the the reasonable inferences exists. facts, counterclaim applicable from those the law those

facts, proper and to be drawn inferences 1991, Ill facts.”16 In those Justice Black- eloquently mun described the of de benefit DE OF REVIEW NOVO STANDARD novo review: FOR CONSTITUTIONAL legal Independent appellate of review is- ISSUES goals sues best serves the dual of doctrinal economy judicial and of by assigning 11 court is in error coherence adminis- also preside judges trial alone court’s order. tration. District over excessive deference adopts fast-paced necessity Of equity It standard of review. trials: devote energy mini- of their resources to This standard falls short of the federal much and hearing reviewing and evidence. mum for constitutional issues. latter witnesses of Originating Similarly, logistical burdens trial require novo de review.11 Valley advocacy limit Co. the extent to which trial the 1920 case of Ohio Water v. supplement Borough,12 is able the district Avon the so-called Ben Avon counsel Ben legal requires judicial judge’s when a research with memoranda doctrine full review Thus, trial judges issue raised.13 com- and often must constitutional Some briefs. complicated legal questions without speculate that the Ben Avon doc- resolve mentators extinguished gradually [or] of ‘extended reflection exten- trine has been benefit appeals, Supreme information.’- Courts of on through numerous inconsistent sive Nonetheless, hand, structurally are suited Su- other Court decisions.14 525-26, Co., 519, 11. See Coghlin, Royalty 98 generally J. A land S.Ct Rev. John. Com 1958, 1955, (1978) (upholding an parison Law the 56 L.Ed.2d 505 of the Administrative of Catholic . States, Loy. interpretation L.A. of the Natural Gas Church and United administrative 81, ground interpretation L.Rev. 183. Act that the was on the reasonable); Joseph v. St. Stock Yards Co. United 52, States, U.S. 56 S.Ct. 64 L.Ed. 908 12. (1936) (holding (1920). courts must re L.Ed. 1033 independently from the view issues constitutional Secretary findings Agriculture); of the of Pichot See At 289. 13. id. City Skagway, F.Supp. ta (D.Alaska 1948) v. pres (stating case that when a See, Glick, Independent e.g., Judicial 14. Leslie A. law, reviewing ents an issue constitutional Rate-Making: The Review of Administrative Rise own, upon its determine the issue Doctrine, 40 of the Ben Avon Ford- Demise administrative, record); Atl. than the rather 305, 306-07, (1971). For ham L.Rev. Comm’n, 77 R.R. Co. v. Pub. Coast Line Serv. decision, see Railroad Commission inconsistent (D.S.C.1948) (stating F.Supp. that an Co., v. & Oil Rowan Nichols equity brought pursuant to independent action in (1940). 84 L.Ed. 1368 review). Congress de novo an act of deserves supra Coughlin, 11 at 687 and ac note FN 47-2-47, Glick, J.App. nn. 63-4 & Process companying supra 16.2 Prac. text. note See accompanying text. generally 313 n. 314. See South California juridical pro- process ner ‘free from taint of arbitrariness or collaborative ”19 accuracy. motes With the rec- decisional discrimination.’ been having ord constructed below and ¶ 14 if I Even convinced that purposes appeal, appel- settled for Shayer Kirkpatrick interpretation pri- are judges late able to devote their 2a(c)(5) 2(c) ap- §§ U.S.C.S. indeed mary legal ques- attention issues. As (or propriate Supreme that the Court’s nebu- appellate tions of law become the focus accept- lous affirmation of that case could be review, expected parties’ it can be that the precedential authority ed as bring the view that brief will be refined to to bear on the drawn), legal more issues information and more districts must indeed be I would comprehensive analysis provided than was disagree approv- nonetheless with the court’s Perhaps judge. for the district most im- approach al of the trial court’s and reverse portant, appeals employ courts of multi- adoption party-spon- trial court’s judge panels permit reflective dia- plan judicial abnegation political sored as a logue judgment.17 collective neutrality. certainly The record indicates that this potentially compromising The costs trial, “fast-paced” and the Ben Avon doctrine political neutrality system court of the commands us to exercise novo de review of any far outweigh gained by simply benefits exigent constitutional issues. choosing ready-made obviously par- plans. simply, tisan Put if a even IV compelling apportion mandate courts dis- exist, tricts did the court must do so in a THE CRUCIAL IMPORTANCE OF JU- manner, scrupulously neutral free ap- DICIAL NEUTRALITY IN DEALING pearance political influence. This would WITH POLITICAL ISSUES likely drawing party mean neither districts definable, suggested clearly has based on ¶ 13 act Judges authority without neutral I am certainly criteria.20 most aware public erode faith whatever still carries in Ginsburg’s teaching of Justice that “[T]he judiciary politi- the insulation of the from the judicial competence slim to draw district process cal when limit themselves to heavily weigh against judicial lines interven- choose proposals between two for redistrict- tion in apportionment decisions....”21 But ing congressional obviously seats both laden when claim courts this reluctance to intrude with partisan advantage. reapportion- process on a in order to shift the process ment has recognized by been many drawing burden political politics observers as at its most heated.18 parties them, Indeed, bring who suits before judicial redistricting'“is since inevita- task, bly exposed reputation punting costs incurred sensitive” “must accomplished political be circumspectly, and in a man- party simply are intolerable. Russell, Regina College argue 17. See may announcing Salve 20. 499 U.S. Some in advance 225, 231-232, 1217, 1221, 111 S.Ct. 113 L.Ed.2d solely that a will court limit itself to choose the (alteration (citations omitted). original) proposal may encourage 'most reasonable political interested to work towards the Redwine, generally 18. See Robert Comment: argument middle on their own. Such an would Gerry- Law: Constitutional Racial and Political go political likely on to note actors are better mandering Require Problems Differ- —Different plans judges. suited to make such are I than (1998); ent 51 Okla. Solutions L.Rev. 373 Note: agree, well but hold that such a scheme still Redistricting Federal Court Involvement in Liti- intolerably politics by expressly gation, Karlan, (2001). sullies court in 114 Harv. L.Rev. 878 Pamela S. placing political mercy at the Reapportionment itself Fire Next Time: actors. Census, After the 2000 50 Stan. L.Rev. 731- (1998). Johnson, 900, 935, 21. Miller v. 515 U.S. (1995) (Gins- 132 L.Ed.2d Finch, 19. Connor v. 97 S.Ct. J., burg, dissenting). (1977) (quoting 52 L.Ed.2d 465 Ro- Sincock, man v. (1964)). 12 L.Ed.2d 620 V 2002 OK 62 SERVICE, INC.,

HK & WELL PROPOSED DISPOSITION MY Plaintiff/Appellant, CONTROVERSY OF THIS sum, deciding I if I were this 16 In TCINA, Co., Holding INC. and Tcina and counterclaims declare claims

would Ltd., Defendants/Appellees. controversy to irredressible in this be 93,451. No. judicial testing of any law to which want orthodoxy may appropriate, constitutional Supreme Court of Oklahoma. three-judge I invite the federal and would districts) (or any drawing other court panel July important if I issue. Even to revisit this court is under convinced mandate to draw districts constitutional

Oklahoma, attempt judicia- keep in an certainly I reproach, most

ry above would party-spon- deferring to either of two

avoid unduly I plans. am critical

sored plan, nor approval of

court’s Governor’s adopt I counsel the Senate

do rather, today I rise condemn the

plan; process which these irredressi-

decisional came to be I do

ble claims decided. any court ever to be bound

invite this party-sponsored plan laden

any tendered bias, slight.22 partisan however excisable discipline the only 17 It when courts by refusing to function as

parties involved (who political increas-

safety valve for actors using judiciary as a forum for

ingly favor disputes) truly

resolving their will negotiate on their compelled to a solution

feel cleaning up has no The court business

own. mess, and I retreat political enterprise.

such argument, party At oral neither denied biased.” "slightly party-sponsored plans at least both

Case Details

Case Name: Alexander v. Taylor

Court Name: Supreme Court of Oklahoma

Date Published: Jun 27, 2002

Citation: 51 P.3d 1204

Docket Number: 97,836

Court Abbreviation: Okla.