*1 variety of sanc- with a wide trial court discretion, impose which, it can in its tions with comply fails to party
in the event of the record review orders. Our
discovery persuade us
here fails to failing
court abused its discretion sanctions.15
impose harsher fur- and REMANDED
REVERSED opin- this with proceedings consistent
ther
ion. J.,
CONNOR, participating. CARPENTER, Appellant,
Marilyn
v. HAMMOND,
Jay Governor S.
Alaska, Appellee.
No. 6728.
Supreme Court of Alaska. 22, 1983.
July
failure,
comply
court finds
(E)
party
unless the
failed to
caused
Where a
has
justified
35(a) requiring
substantially
him
under Rule
with an order
that the failure was
examination,
produce
or-
another for
such
make an award
that other circumstances
(A), (B),
paragraphs
ders as are listed in
unjust.
expenses
subdivision,
(C)
party fail-
unless the
ing
comply
generally,
Ed-
Hawes Firearms Co. v.
shows that he is unable
See
person
wards,
produce
1981);
such
for examination.
Ketchikan
(Alaska
634 P.2d
foregoing
or in
State,
In lieu of
orders
(Alaska
Storage
Co. v.
Thomas M. Asst. Atty. Wil- Condon, Gen., Juneau, son L. Atty. ap- pellee. C.J., BURKE, RABINOWITZ,
Before and CONNOR, COMPTON, MATTHEWS JJ.
OPINION RABINOWITZ, Justice.
This appeal challenge involves to the legislative reapportionment 1981 Alaska Jay Ham- plan promulgated by Governor S. 24,1981. Following on a trial July mond matter, court entered a dismissal with in favor of the prejudice Marilyn Carpenter, Governor against claims, adjustment on all to the except as lines for Districts 25 and 26. boundary two appeal, Carpenter challenges On raises First, decision. she superior court’s argues used in identifying that the methods excluding certain members the mili- tary dependents reapportion- ment base violated the protection provisions of United States reduced the impermissibly Constitution and voting strength residing of voters dis- depend- tricts where and their Second, ents she contends were excluded. Dis- the formation of House Election (Cordova-Inside Passage) trict violated Article section 6 of Alaska Constitu- requires tion which each new district students, “contiguous processing employees, college and com- fish created be formed prac- felons, aliens, pact territory containing nearly to determine the num- socio-econom- relatively integrated ticable a likely bers of non-residents to be included ic area.” potential census count and their the federal reapportionment. state The ex-
impact on only group concluded that the pert’s report I. *3 present signifi- non-residents in potential of Facts numbers, reapportionment pur- for cant Jay ap- In Governor Hammond S. poses, military personnel consisted of and pointed Reapportionment Advisory The dependents. report their contained the (the Board) Board to him in the de- assist^ that a of the mili- study recommendation reapportionment legis- cennial of the state population be conducted at seven in- tary Board, report lative districts.1 The in a state, including stallations in the Fort Rich- 10, 1981, its recom- dated June submitted Air Base in ardson and Elmendorf Force plan redistricting legisla- mended for of Wainwright Fort and Eielson Anchorage, Hammond, reviewing ture. after Governor Fairbanks, Greely Air Force Base Fort making some report and modifications Junction, Delta the Kodiak Coast Guard 24, 1982, publicly July announced on his Station, and the Adak Naval Base. acceptance of the Board’s recommendations legal to ascertain the residence order signed and reapportionment proclama- dependents, members and their tion.2 a mailed the Board decided to conduct sam- preparing report, its the Board initial- ple survey military personnel. The sur- ly had to determine an accurate vey questionnaire questions, listed seven reapportionment. base for It was first three of which read as follows: thought United States Census significant count of 1980 would include a 1. Do consider home to be in you your people number of who were not in fact other state? Alaska or some residents of Alaska. The Board hired an your 2. Do to make home in you plan expert demography in Alaskan and survey other when you Alaska or some state research to advise the Board in its assess- military? leave the ment groups thought and treatment of to you registered 3. Are to vote in the contain large numbers of non-residents. of Alaska? State The expert groups, Board’s studied various Military members who answered “Alaska” including military personnel depend- and ents, workers, oil camp camp questions, lumber to the first two or who answered Const., tral, Central, VI, 1. Alaska Senate Dis- art. 3 states: and Northwestern § Appointments governor shall be made without reapportion tricts. The shall the house of representatives immediately regard political following Board mem- the of- affiliation. reporting compensated. ficial of each decennial census of bers shall be Reapportionment the United States. be shall Const., VI, upon 2. Alaska art. 10 reads: based civilian each within reported by election district as the census. ninety days following the official re- Within Nolan, In Wade v. census, porting of each decennial the board 1966), governor this court held that the has the reap- governor plan shall submit to the authority reapportion constitutional both the redistricting provided portionment and senate, though house and the Alaska’s even receipt ninety days this article. Within after specifically grants governor constitution governor procla- plan, shall issue a power reapportion only the house. redistricting. reapportionment mation of Const., provides: art. 8§ explain accompanying An shall statement governor appoint reapportion- shall any change plan from the of the board. advisory capacity ment board to act in an redistricting reapportionment shall be ef- members, him. It shall consist of five none fective for the election of members public employees of whom or offi- legislature reporting until the official cials. At least one member appointed shall be each census. next decennial Southeastern, Southcen- “yes” question Hammond, three were counted as ernor City of Cordova was questions Alaska residents. The next three included in House Election 2 along District asked the following: with several coastal Southeast communities: many dependents composed
4. How District 2 is of that currently portion live you (spouse, children)? with Southeast Alaska between Dixon En- trance and Port Gravina on Prince Wil- many 5. How of these con- dependents liam Sound that is not contained in Dis- sider their home to be in Alaska tricts 3 and 4. Included within its intend to make their home Alaska boundaries are the communities of Cordo- in the future? va, Yakutat, Haines, Klukwan, Skagway, many dependents How of these Gustavus, Kake, Angoon, Bay, Thorne registered to vote in the State Klawock, Craig Hydaburg. Alaska? Following Governor Hammond’s an- All dependents who were listed as either nouncement of the new *4 considering Alaska their home intend- and plan, Marilyn Carpenter raising filed suit ing to make Alaska their home in the fu- the following objections to the redistricting ture or having registered to vote in Alas- plan: the exclusion military members ka were counted as residents apportion- for and dependents apportionment ment. question The last asked military the population base was a violation of member to indicate whether the member protection; selecting the Advisory Board military lived on or off the base. VI, Governor Hammond violated Article responses Based on the to the question- section 8 of the Alaska Constitution which naires, “non-resident population coeffi- provides reapportionment board mem- cients” were determined for each installa- appointed bers be regard politi- “without surrounding tion and affiliation”;4 off-base area. These cal identify the failure to and coefficients were used to calculate the esti- groups exclude other of non-residents in- mated “resident” and “non-resident” mili- cluding workers, fish processing and lumber tary/dependent populations at each loca- personnel and dependents and at unsur- tion. The “non-resident” population figures veyed military installations resulted in an for each area were (31,363.8) totaled and apportionment population inaccurate base deducted from the federal census count for and substantial variations from the actual (400,481) Alaska producing adjusted districts;5 an population among the and the population state (369,117.2). base Using along inclusion of Cordova in District 2 with figure population as the base coastal communities adjusted Southeast violated for reapportionment, computed Board compact districts be the ideal house population (9,228) district socio-economically integrated and areas. and (18,- the ideal senate district population Const., VI, art. 6.§ 456).3 The legislative redistricting plan was superior judg- court entered a final then drawn up based on these target fig- ment of dismissal with prejudice favor of ures. claims, Governor Hammond on all except as reapportionment plan recom- the adjustment of the lines for boundary mended by adopted the Board and by Gov- Districts 25 and which the state was populations penter’s challenge ap- 3. The ideal district were obtained to Governor Hammond’s by dividing apportionment population pointment Reapportionment base Board. (369,117.2) by (40) the number of house (20) apportioned. senate See Alas- seats to be 5.Specifically, Carpenter alleged that if nonresi- Const., II, ka art. 1.§ military personnel processing dent and fish District workers had been excluded from superior granted 4. The court defendants’ mo- of the house would have district partial summary judgment 7,259, tion represent for as to been Car- reduced to which would 1208 days.6 Carpenter standing to correct within 30 This is that lacks to raise
ordered appeal followed.7 this claim because she does not reside in or challenged near the district but resides and
II.
Anchorage.
votes in
The Governor further
argues
plaintiff
reapportionment
that a
in a
Standing?
Carpenter
Does
Have
rights
standing
suit has no
to assert
the inclusion of
Carpenter
asserts
plaintiff
in which the
voters in a district
require-
2
in District
violates the
Cordova
or vote.9
does not reside
and socio-economic
compactness
ments of
claims that her status as a
Carpenter
VI,
in Article
section 6 of the
integration
of Alaska is sufficient
registered voter
position
state constitution.8 The Governor’s
Otherwise,
judgment
supe-
percent
a 20
deviation from the ideal
ment.
over
9,228.
house district
rior court
affirmed.
Pending
determination of the issue
3.
our
Board
6. The
court ruled the
failed
advisement,
remaining
described
under
include,
residents,
justify
all
its decision to
hereof,
leg-
paragraph
governor’s
military
dependents
at the non-
members
redistricting
islative
surveyed bases:
measure,
plan
approved,
as an interim
difficulty of access
re-
Because of the
be held in House District
elections to
sites,
military
many
tightly
mote
of which are
B in
Senate District
intelligence posts, and because of the
secured
opinion
4. An
will follow our determina-
relatively
dispersal
size of
wide
small
remaining
tion of the
issue.
sites,
constitutionally
these remote
permissible
it was
para-
Justice Rabinowitz dissented
forego study
for the Governor to
graphs
2 and
court’s order.
of the
ever,
at these remote sites. How-
consistency
because
results of
Const.,
6, provides in full:
8. Alaska
art.
larger
surveys
done
installations made
*5
may
by
governor
further
redistrict
The
apply
it
these
feasible to
results to the small-
changing the size and area of election dis-
installations,
a
er
such
course of action
tricts, subject to the limitations of this arti-
would have been less restrictive than includ-
be
cle. Each new district so created shall
ing
all the
at remote sites in the
contiguous
compact territory
of
formed
containing
population as the Governor did. The non-
nearly
practicable
a relative-
population of
the
resident
smaller
sites
ly integrated
area. Each
socio-economic
should therefore have been calculated on the
population
shall contain a
at least
to
survey
basis of available
data and excluded
by dividing
quotient
the total
the
obtained
population
base.
population by forty.
civilian
Consideration
Exclusion of the non-resident
at the
given
government bounda-
be
to local
small sites resulted in increased variations
superior
Drainage
geographic
and other
features
from the ideal district size. The
court
ries.
“suggested”
adjustment
describing
that an
be made in
shall be used in
boundaries wher-
bring
possible.
Districts 25 and 26 so as to
them within
ever
permissible
the
limit for
See
variations.
10%
Patterson,
(5th
863,
Fairley
(Alaska 1974).
9.
v.
penter has
fol-
conclusion we stressed the
reaching this
inclusion
exclusion and
Cordova
tary
alleged the
lowing
plaintiffs
factors:
issues.
pro-
specific
two
constitutional
violation of
Article
apart
from
Additionally,
visions;
disputed
transaction
11,
has stand
Carpenter
section we hold
on the
significant
impact
have a
would
plan
challenge
to
ing
no one
and that there was
treasury;
state
pertaining
this court’s decisions
under
to liti-
plaintiffs
than
position
in a better
State,
P.2d
In Moore v.
553
standing.
complaint.
Id. at 635.
gate
(Alaska 1976),
part:
we said in
23-24
case,
alleges
Carpenter
In the instant
this court indi
previous
As
decisions of
specific
constitu-
that District
violates
cate,
standing
has been
concept
disputed
limitation and that
tional
Alaska, favoring
interpreted broadly
(the drawing of election district
transaction
judicial forums.
accessibility
increased
im-
significant
have a
lines) arguably will
1297, 1303
Boucher,
In
511 P.2d
Coghill v.
over
dispute
Here the
pact on the state.13
(Alaska 1973), we noted that “[i]n
briefed, argued at
fully
District 2 has been
departed
this court has
past
...
no one in a
appeal,
trial and on
and there is
standing
of the
interpretation
restrictive
Carpenter
litigate
position
better
than
requirement.”
view, Carpenter also
these issues.
In our
obtain
party
standing
Whether a
has
standing
criteria of Lewis.
meets
controversy de-
judicial resolution of a
suffi-
pends
party
on whether the
has a
III.
of the
personal
cient
stake in the outcome
Depend-
Military
Members
Exclusion
controversy.
In our recent decision
ents
Court,
Wagstaff
Family Divi-
Superior
v.
sion,
(Alaska 1975),
argues that
the Board’s deci-
Carpenter
535 P.2d
non-resi-
survey
only
in terms of
sion to
and exclude
we described
military members14 is unconstitutional
“injury-in-fact,”
explained
its
dent
arbitrary
since it resulted in the
exclusion
purpose
adversity
is to assure the
which
judicial
military
apportionment
proceedings.
is fundamental
Hammond,
base,
(Footnote omitted.)
citing Egan v.
1972).
(Alaska
The Governor asserts
Lewis,
(Alaska
v.
1211 concluded that even N.J.Super. 504, if civilian transients 308 A.2d 26 (App.Div. present, 1973): they were probably were not coun- by
ted as residents the federal Fi- census. person that fact in military ser- nally, we found that the involuntary nature vice reside at his military reserva- pursuant tion to order assignment assignment, member’s to rather military than as result of his free and voluntary state is distinguishable from a vol- civilian’s choice, him at differentiates not all from untary presence. Carpenter Id. acknowl- business, person other whose employ- Groh edges argues but that its reasoning is compel ment pursuits or other his resi- inapplicable here. or given dence at near community Carpenter distinguishes Groh on the regular irregular involve transfer from ground that in case there awere sub- place place. (Footnote omitted.)16 stantial number of civilian transients that, argues Finally, Carpenter even as- agrees state. The state that the 1980 cen- suming legal compulsion justi- doctrine sus contained substantial numbers of civil- fied military differential treatment for per- ian non-residents but claims that the Board sonnel, it was unreasonable apply it ignored them properly following for the military dependents. According to Car- reasons: the federal census reallocated penter, dependents none of these are tourists and temporary business visitors to present compulsion under legal and there- residence; their true there practical was no fore they should have been treated as civil- way survey and reliable fish processing Although ians. present- this issue was not camp and lumber employees; the federal ed in (only military personnel Groh were census substantially lumber undercounted excluded), this court stated that “[depen- workers; and fish deduction of some non- assumed, dents be military persons may proportion resident of these groups would part, for the have most the same residen- inaccuracies; produce serious camp and oil tial person- characteristics as uniformed by workers were allocated the census to nel upon dependent.”17 whom are they true their residences.15 The state concludes Groh, 869-70, 526 at we P.2d referred only military personnel that dependents Hammond, Egan fact that in v. 502 present were in sufficient con- numbers and 1972), P.2d 856 we held invalid the impact centrations to apportionment. reappor- constitutional Next, Carpenter argues that the distinc- upon tionment be based civilian tion between military and tran- civilian reported by within each election district as sience is no longer census, valid. ground She cites Marks v. military on the Township Hanover, Committee of New personnel 124 as a be class should not arbitrari- dispute deciding 15. The state contends that no was relied on Board regarding raised workers, trial personnel surveyed. Although inclusion of oil should be aliens, students, or and that the trial service members were accorded different treat military person- centered on the treatment ment, they given opportunity were an to estab nel/dependents processing and fish workers. Hopkins, lish See Stifel their residence. Cir.1973) (6th (prisoner preclud F.2d not Carpenter legal compul- contends that establishing pres ed from domicile because his significantly rule sion has been weakened jurisdiction originally ence in the was com justify recent cases and should used to pelled); Registrars Dane v. Board Con military personnel. the selective exclusion of cord, al., et N.E.2d 1358 Mass. (Second) (1971) Restatement of Conflicts 17§ (1978) (prisoners presumption entitled to rebut states: involuntary presence reason of their person acquire A does not a domicile of domicile); they retained their former place presence phys- choice his ain under *8 McKenna, 45, Pa.Super. v. 282 422 McKenna legal compulsion. ical or (1980) (no presumption A.2d 668 irrebuttable Carpenter cites, however, The cases which all prisoner domicile). that retains former presumptions. deal with irrebuttable No irre- presumption buttable of was im- non-residence 863, Egan, v. P.2d 874 17. Groh 526 posed military legal on the in this case. The 1974). compulsion merely rule was one which factor 1212 who have military personnel We further noted that base even
ly eliminated. unconstitutional, holding periods such elimination for substantial lived in Alaska we exclusion of some precluding were not time, exer- long people so as those providing it was conduct- military personnel to remain residents and option cised their impact ed to limit of transients domiciliaries of other states. legislative districting. non-residents on Groh, upheld Reapportionment we reason to believe that mili- every There is Board’s to exclude tran- military decision to be Alaska personnel who desire tary population the apportionment sients from register will residents and domiciliaries base. We found the Board’s decision rea- prime is a registration vote because voter following grounds: sonable on the of intention to become a resident index (1) it was reasonable for the Board to reason, For like we think domiciliary. conclude that civilian transients are not to become those who do not want present significant April in numbers in intention Alaskans demonstrate obtained; when the census data was to vote. refusing register (2) present, even if transients were they were not included in the Alaska our decision in Groh v. Based on although census population, military all exclusion of non Egan, we hold that included; in Alaska were stationed so dependents resident members and military (3) special military nature of tran- base did apportionment population from the sience creates a reasonable basis to distin- and that equal protection,19 violate
guish
military
between
and civilian tran-
alleged
identify
Board’s
failure to
and ex
sients.18
non-residents
includ
groups
clude other
Groh,
36,
It is
and substantial variations from the actual
thus not offensive
notions of
protection
populations
among
to exclude from the
the election districts.20
portionment
18. Id. at 870.
of seats in either or both of the
legislature.
two houses of a bicameral state
579,
1391,
377
at
84
at
12 L.Ed.2d at
superior
applying
U.S.
S.Ct.
19. The
court ruled that in
an
rejecting
holding
equal protection analysis
537. In
the lower court’s
to the exclusion of
prove any “governmen-
alleged
apportionment
state had failed to
nonresidents from the
base,
necessity” justifying
scrutiny
tal
the deviations in the
the strict
test was the
districting plan,
Supreme
proper
A
Court stated:
standard of review.
classification
above, however,
proper
directly
right
As we
which
restricts the
to vote must
noted
Blumstein,
scrutiny.
equal protection
in
meet strict
Dunn v.
405
test is not framed
terms
330,
995,
(1972).
necessity”
“governmental
U.S.
92 S.Ct.
1213
We think it clear that a state has a legiti-
strength.21 We therefore
hold that
the
(Board)
mate interest
in
state
limiting
apportionment
legitimate
its
had a
interest
in
limiting its apportionment
base to
base to bona
bona fide residents. The
fide
Supreme
residents,
further,
and
the
em-
means
Court of the United
has
States
stated that
ployed by the Board to cull out the non-resi-
the states may exclude non-residents
from
dents was constitutionally permissible.22
the apportionment base. Burns v. Richard-
son,
73, 92,
1286,
384 U.S.
86
1296-
S.Ct.
IV.
1297,
376,
16 L.Ed.2d
390-91 (1966). As
Inclusion
noted
of Cordova in District 2
previously,
Egan
in Groh v.
we held
that military non-residents
constitu-
Carpenter
asserts that
the inclusion of
tionally be
popu-
excluded from the state’s
Cordova in District 2 violates Article
bar,
lation base.
In the case at
superior
Constitution,
section 6 of the Alaska
which
state,
court found that
attempting
provides:
exclude non-resident military from the ap-
governor
may further
redistrict
base,
portionment
demonstrated a compel-
changing the size and area of election
ling
interest,
state
namely,
the prevention
districts, subject to the limitations of this
the dilution of
its
voting
residents’
article.
Each new district
so created
findings
legal analysis employed
analysis
yet
of fact and
applied
and that their
has
to be
superior
portions
court in those
of the
a
case. The state also relies
decisions which relate to these cases. The rele-
upon
(Second)
12,
Restatement
of Conflicts §§
portions
superior
judg-
vant
of the
court’s final
(d),
(1971).
17 comment
18 and 19
The state
appendix
opin-
ment are set out in the
ion.
to this
distinguish
also advances five facts which
Newburger
Ramey.
instant case from
They
First,
military
are as follows.
class
Reynolds
Sims,
533, 555,
21. See
v.
377 U.S.
84
Second,
legal compulsion.
came here under
1362, 1378,
506, 523-24, reh’g
S.Ct.
12 L.Ed.2d
here the class stated that Alaska is not their
denied,
870,
379 U.S.
85 S.Ct.
pact not socio-economi- and that Cordova is the provisions under and is constitutional coastal integrated with the Southeast cally VI, of Alaska’s constitu- Article section 6 in the district. communities tion. 863, 866-67 526 P.2d Groh mandates that Our state constitution general stan 1974), established the as as nearly prac- districts “contain election applied by to be this court dard of review integrated a socio-econom- relatively ticable VI, Article exercising jurisdiction under Const., art., VI, 6. Alaska The ic area.” § section ll.23 initial centers on the con- parties’ dispute may that we deem It cannot be said what integration re- the socio-economic tent of any particular to be an unwise choice decision, the quirement. superior its provision reapportionment plan of a stated: court among several reasonable and constitu- concept embodies a number of in- “error” alternatives constitutes tional components, including econom- terrelated jurisdiction invoke would which base, governmental ethnic composition, ic the courts. boundaries, size, community transporta- plan promulgated We view a under links, and life- tion and communication gover- constitutional authorization process re- style. in the reapportion legislature nor to components; balancing a of these quires regulation we a light same as would predominant be while may one deemed authority adopted delegation under may another be subordinated.... legislature administrative to an does re- integration not Socio-economic promul- formulate agency policy regular social and economic quire gate stated that regulations. We have occur be- interactions transactions such first to regulations we shall review district, of a al- tween the communities has not exceeded agency insure that such are indicia of though occurrences it, power delegated to and second integration. socio-economic rea- whether is regulation determine analysis incor- Carpenter contends course, not Of arbitrary. sonable and require regular it fails interac- rect since authority to additionally, we always of a district. the communities tion between of the action constitutionality review the court’s “simi- superior asserts She taken, court we have that a but stated insufficiently empha- interest” larity of test judgment substitute its interaction. the need for intra-district that of the sizes regulation of a sagacity redistricting wis- The state characterizes agency, administrative appeal, cause Const., provides 23. in the court. On art. supreme upon part: court be shall reviewed the law and the facts. Application compel error correction thirty redistricting must be filed within Love, Acker v. Carpenter Colo. cites Original days following proclamation. banc). (1972) (en hereby jurisdiction vested in these matters balancing process argues try; commu- and that Cordova is a member of the nities with common economic po- bases and Conference, Southeast a lobbying organiza- litical interests may joined, despite tion representing Southeast Alaska commu- lack of socio-economic interaction. nities. *11 863, (Alas- Groh Carpenter does not dispute these find- 1974),
ka we looked to the ings; rather, Constitutional she argument reiterates her Convention minutes for a definition of the there is insufficient evidence of any term “socio-economic area”: social or economic interaction between the residents of Cordova and the other commu-
Where people together live and work to- nities. Carpenter concedes their similarity gether and earn their living together, of interest but contends that the economic that, where people do they logi- should be and social in activity Cordova is completely cally grouped that way. separate from that of the Passage Inside communities. The state in turn concedes It cannot be defined with mathematical that Cordova physically and economically precision, term, but it is a definite and is segregated from the other communities in susceptible of a definite interpretation. District regard, 2. In this Carpenter argues What it means is an economic unit inhab- that Cordova is closely integrated more ited by people. words, In other the stress with the Prince William Sound communities is placed idea, on the canton a group of due to geographic their and social interac- people living .unit, within a geographic tions.25 socio-economic,following possible, if simi- lar pursuits. has, economic It as I say, no Although the question is an ex definition, mathematically precise but it tremely close one and our standard of re has a meaning. definite deferential, view is we conclude that inclu sion of Cordova House Election District 2 Minutes, 526 P.2d at quoting Constitu- VI, violates the tional in Article sec Convention 1873. This descrip- tion 6 of Alaska’s constitution that supports tion Carpenter’s view that election “[e]ach new district so created shall be formed of districts were intended to be composed of contiguous compact territory contain economically and socially interactive people ing as nearly practicable a relatively in a common geographic region. integrated socio-economic area.” Alaska In upholding the inclusion of Cordova in Const., added). art. 6 (emphasis District superior court made the fol- record simply sig devoid of evidence of lowing findings: the main economic nificant social and economic interaction be base of Cordova and Passage the Inside tween remaining Cordova and the commu communities is fishing; that fishermen in nities comprising House Election District 2. Cordova ánd the Southeast share con- many cerns port such as development, qual- water The superior judgment court’s is AF- ity, development, fisheries fish processing FIRMED in in part Part REVERSED quality and safety, management; and forest superior as to the approval court’s that all the communities in District ex- inclusion of Election Dis- Cordova House cept Haines Skagway, are waterlocked trict 2. The matter is remanded to the ports with no overland superior connections to other pro- court to conduct such further communities; principal that Cordova and ceedings and enter such further orders the Southeast communities share an inter- opinion accordance with this as are deemed est in development of the timber indus- necessary implement opinion. sports competition 25. The court found various social and scholastic and occasional addition, recreational gatherings. connections between Cordova and social there was evi- tournaments, Including bowling Valdez inter- * enumerators and pay f.low for census
Appendix poor qualifications persons employed John Kruse study A conducted Dr. A. as enumerators would reduce chances of the Institute of and Economic Social enumerators would take the initia- that the University of Alaska Research of tive to overcome these difficulties. (ISER) only groups concluded that who, in a Fish workers box processing popu- in the potential present non-residents them, special provided gave census form significant lation in numbers were process- than the fish a home address other Dr. Kruse personnel dependents. and their address, that other ing unit were counted at conducted of this study recommended a part be it in or another another state state, in the group (7) at seven installations given military Alaska. The census forms and Elmendorf namely Fort Richardson (except and other civilians servicemembers Anchorage, Wainwright AFB in Fort *12 workers) camp lumber and oil lacked base Fairbanks, Greely Fort at Eielson AFB in box; persons such a those were counted at Junction, Kodiak Coast Guard Delta were places they physically those where lo- Station, Naval Base. and the Adak cated. fish Although study process- the initial of acceptable It would have been an num- ing employees significant indicated technique to make demographic research the Aleutians and bers of non-residents in unreliable census deductions from such an Bay, Bristol Dr. Kruse recommended no count; even if the numbers deducted were survey group be conducted of this because data, based on research the result reliable of anticipated difficulty conducting of the would contain all the subtraction survey, such a and because substantial the census count. inaccuracies of census bureau undercount of this work undercount, likely Because of the census expected force was due to several factors: proportion deduction of some non-resident a. preparation by lack of the census bu- population of the census would work a dou- reau created the likelihood that some fish have re- ble elimination: there would been units, processing mobile, of which many are persons base population moved from the units, floating by would be missed census counted in the first who had never been groups enumerators or that within the units instance. missed; would be Kruse, part post-census study Dr. of a b. the census bureau was not able to verified that all the procedures, of census companies obtain from the a list employ- with the census enu- problems anticipated organize ees with which it could count workers did in- processing meration of fish against verify which it could the cover- deed occur. enumeration; age of the a list is an essen- data, census which first Group quarters unit; tial tool in locating persons all the in a after became available four months would, c. processing managers unit ac- his promulgated Governor cording knowledgeable to sources contacted of a prediction verified Dr. Kruse’s plan, Kruse, permit disrup- Dr. be reluctant to processing of fish substantial undercount operations tions of their census facilitate whereas, 2,472 re- workers were workers: enumeration; group housed in ported employed to be d. group living work shifts and Aleutian Chain and Bris- quarters on the dining arrangements complicate would only counted Bay, tol the census bureau identifying interviewing task of each unit; processing
individual at a fish might which the Governor means e. workers to language expected surveyed processing barriers were fish enumeration; of non-residents prevent complete a full and a determine the number * appendix taken from the court’s dence of some intervisitation between Cordova This ferry findings transport. of law. and Valdez via mail and of fact and conclusions air dependents
Civilians and their vote at a greater rate 5.6 times than military person- that would substantial difficulties presented dependents. nel and In the 1980 general re- reliability have undermined Alaska, election in which included the elec- lum- applied The same problems sults. States, tion of the President United workers, lumber making any survey of ber voter turnout precincts pro- civilian as a and the results unreliable. workers difficult portion approxi- of total was readily-identifiable other There were no mately military precincts 45%. In the com- groups with numbers and concentrations parable figure was 8%. influ- characteristics that would residency proportion military claiming Alas- ex- legislative apportionment, ence Alaska’s ka to be their home was calculated from cept the military. First, responses questions: you to three “Do the reappor- The Governor deducted from your consider home to be in Alaska or some base those numbers of tionment Second, other state?” you plan “Do personnel depend- military non-resident your make home in Alaska or some other larg- the seven ents who resided or near Third, state when leave the you military?” Alaska, military est installations in after you registered “Are vote in the State sample person- a scientific surveying Alaska?” Persons who answered “Alaska” It recom- nel at those seven sites. was to the first or who were questions, two mended that all of the installations voters, registered were counted as Alaska because it was determined that surveyed *13 residents, yielding average residency an mili- significant there were not numbers of factor of 25%. at in- tary personnel dependents and their stallations other than the seven selected. 2,067 approximately There were non-resi- difficulties in Because of the formidable at smaller installa- military personnel dent processing of fish making an accurate count Aleutians, in Bay,
tions on the Bristol workers, because of the and lumber and interior Alaska and in Alaska. Southeast and real- likelihood of a census undercount were largest The numbers of non-residents workers, those it was many location of in District 26 Shemya King at Salmon to exclude iden- constitutionally permissible (259), (851), Galena in District 24 Juneau personnel and military non-resident tifiable (133) (195), (137), Ketchikan and Clear Sitka popu- from the dependents (100). in District 17 including non-identifiable lation base while alter- only The groups. members of other of non-resident Had all these numbers technically problematic was to do a native military, and those at other locations not of a double possibility the real survey with de- preceding paragraph, listed in the been The Governor of non-residents. elimination base, population popu- from the ducted alternative deciding this justified was 367,050 and lation base would have become burden on greater a might placed well district size would have become the ideal activity. protected 9,176.... scheme, overpopulat- the most Under this difficulty Because of the of access to re- 9,684 district would be District 25 with ed sites, of which are military many mote (+ 5.53%); the most underpopulat- persons intelligence posts, secured and be- tightly 8,628 would be District 26 with ed district dispersal relatively cause of the wide (-5.97%); and the combined varia- persons sites, remote it was small size these from the ideal district size would be tion constitutionally permissible for the Gover- 11.50%.... military at these forego study nor to of the However, because the con- remote sites. compelled, are under Military personnel done at sistency surveys of results of the military discipline or criminal penalty apply made it feasible to larger installations military Most liability, to live Alaska. installations, these results to the smaller live on self- dependents and their personnel action would have been less such a course of contained, insular reservations. homoge- in a sense fishing, on commercial fishing commercial neous with the towns all the including than restrictive Island in southeastern the Gover- Prince of Wales population remote sites in Alaska, away, time zones population 700 miles and two nor did. The non-resident therefore have been sites should say smaller no sense correct to Cordova it is in survey of available on the basis calculated By with those communities. integrated data and excluded contrast, fishing community may a not be figures Analysis base. communi- homogeneous neighboring with a would materi- procedure shows that such a base, economic but the ty having a different Because District 26.... only affect ally integrated to be be- two can be considered sizes would from ideal district the deviation trade, social transportation, cause of applied formula was exceed once the 10% links.2 sites, and because the Governor the remote compactness Second. basis for the demonstrated no rational has YI, the Alaska Constitu- 6 of article section adjust- an Districts 25 and variations in conclusion Cor- mandates the tion also to balance the sizes of ment must be made in District 2. included dova not be bring them within the the two districts deviations constitutionally permissible each provides section Article the ideal district size. Groh election district new that such suggests The court P.2d at 882. com- contiguous formed shall be by simply made adjustment an could be nearly as containing as territory pact 55) and (population including Platinum socio- integrated relatively practicable 168) within Bay (population Goodnews area. economic District in the sense used here means MATTHEWS, Justice, “Compact” concurring. in relation to the having perimeter small I with the complete agreement am in Dictionary area Black’s Law encompassed. I majority opinion. separately write (4th 1968). compact shape ed. most concerning the make several observations *14 possible is a circle. it is not to divide Since not be includ- may conclusion that Cordova circles, Alaska into it is obvious that the ed in District 2. only compact- constitution calls for relative reappor- primary First. The error does not mean that ness. But equate tionment was to socio-econom- board is without sub- compactness requirement homo- integration ic with socio-economic stantive content. Where there are two or plan geneity. In given they more districts in a area can be integration consistently board refers compared compactness grounds with oth- requirement homogeneity.1 as one of possible encompassing er districts the same In- concepts synonymous. are no means by Jersey area.3 A New court has stated: tegration connotes interaction and connect- Although impact compact- edness, homogeneity while refers to similar- stated, precisely ness directive cannot be Webster’s Third New ity uniformity. itself can be we believe word 1085, (1965). Dictionary International 1174 given meaningful content. Webster's Thus, possible say while it is that Cordo- va, Dictionary Third New International economically dependent a town which is discussing majority group plan listen to the re- interest has no need to 1. The has two sections Note, quirements Gerrymandering: the Alaska of art. 6 of Consti- Political other views. appropriately Statutory Compactness tution. The first is titled “Com- Anti- A Standard as an pactness Contiguity;” inap- the second is Impotence, 41 dote for Judicial U.Chi.L.Rev. revealingly, propriately, but titled “Socio-Eco- 398, 400-404, (1974). 414-415 Homogeneity.” Reapportionment nomic Plan at 13-14. Gerry- Schwartzburg, Reapportionment, 3.See manders, “Compactness,” 50 and the Notion political theory homogeneity may terms (1966). Minn.L.Rev. 443^46 distinctly undesirable basis on which to draw lines, representative district for the of a stable
1219
(1966)
by
as “marked
clude Cordova would
“compact”
compact-
defines
violate the
Techni-
requirement.
concentration in a limited area.”
ness
cally,
interpret
we
Egan Hammond,
(Alas
v.
In no sense is District 2 It runs P.2d 863 In Groh v. some 700 miles from its southeasternmost 1974), jus- we that the had concluded State points. to its northwesternmost It than greater tified a deviation of arms, shaped roughly like two extended Alas- respect 10% with to two southeastern shoulder, each with a connected in the mid- only grounds ka districts on the *15 torso, by by dle not a head and but extending a alternative thereto would be ligament way narrow which threads its be- southeastern district to include Cordova. impossibility tween Districts 3 4. The and We stated: considering relatively District 2 to be to the Juneau and Wran- With reference is evident from compact merely looking areas, was con- the Board gell-Petersburg map.4 jug- problem fronted with the difficult rela- contiguous, compact, more gling the Alaska, Third. Southeastern a distinct areas of tively integrated socio-economic state, geographical region of this will sus- extending without seats in the House of Southeast Representa- tain six into an unrelated substantial distance making without an extended reach tives natural barri- separated by area immense into southcentral Alaska to include Cordo- set- Yakutat, the northwestern-most court held that stretch- ers. va. This has twice Alaska, which is ing a southeastern election district to in- tlement in Southeast Appendix. 4. See by great necessarily distance from created would be constitutional- separated
itself region, existing the other communities in the is district because ly preferred from the nearest air miles while both districts would be rated as region, center in the Southcentral Cordo- integration, in terms of socio-economic both va. There are valid considerations new district would be to the exist- for not en- historically geographically and ing compactness.7 in terms of The district gap. deavoring span to that respect with same conclusion can be drawn logical alternative method of dis- Id. at 879. Alaska. tricting southeastern than Currently there is no better reason including in 1972 or 1974 for there was Fifth. gerrymandering In a broad sense Cordova in a southeastern Alaska district units in an dividing political is an area into because, noted, southeastern previously as purpose unnatural with the of bestow- way present to its Alaska taken alone is entitled ing advantages on some and thus disadvan- Representa- six members in the House others. See taging Webster’s Third New tives. (1966). The Dictionary International compactness integration requirements and Fourth. pur- It is useful for illustrative designed prevent gerrymandering.8 were poses Compton’s assump- to refer to Justice gerrymander may very intent be tion Juneau part that some of suburban objective might prove, especially be taken from District 4 and added difficult to if political was one other than to benefit the Compton points District 2.5 Justice out However, if the party power.9 compact- this new district would not be “more integrated integration requirements ness and are ob- soeio-economically than the area served, gerrymander produced by linking opportunities Cordova with It is quite preferable southeast communities of Yakutat and are limited. therefore practical grounds con- both on and Although Haines.” I believe that this constitutional require- for to insist of those clearly wrong clusion is the reasons observation opinion, require, stated because ments rather than to as Justice majority would, intent to Compton proof gerry- Juneau and Haines have been in the same of an prerequisite finding let us as- mander as a to a of a many years,6 .house district sume that it is The new district thus constitutional violation. true. By using example imply assumption 5. I do not mean to 7. This conclusion is based on the adjustment necessarily goals compactness that such an would re- and socio-eco- constitutional, logical, apportionment. integration equal footing flect a or nomic on an stand matter, our constitution. At least as a textual Egan Indeed noted in Groh v. the close we priority, compactness seems to for the ties between Juneau and Haines: constitution commands first each district Board, however, presented a rational ba- then, contiguous compact in select- severing Skagway sis for not and Haines ing among possible contiguous compact district, ... There are [Juneau] districts, containing nearly practica- as those Juneau, transportation close ties between relatively integrated ble a socio-economic area daily Skagway by air Haines and scheduled Further, preferred. compactness are to be service; flights frequent ferry a Juneau- nearly modified “as highway Haines has been connection practicable” “relatively” require- while the planned. quite distinct The district integration ment of socio-economic is. region by of the Southeast virtue of rest development the nature of its and the fact Proceedings 8. 3 of the Alaska Constitutional por- entirely composed of it is almost (Jan. 1956). Convention 1846 mainland, tions of the rather than the islands *16 archipelago; historically three Note, Gerrymandering: Political A Statu- 9. See closely always communities been tory Compactness an Antedote for Standard as linked, serving with Juneau as an economic Impotence, Judicial 41 U.Chi.L.Rev. at 406-411 Skagway. hub for Haines and (1974). P.2d
APPENDIX
*17
COMPTON, Justice, joined
BURKE,
by
grated
“prohibits
socio-economic areas
ger-
Justice, dissenting
Chief
in part.
rymandering
[Tjhe
....
Committee feels
gerrymandering
definitely prevented
that
Although I concur for the most part with
by these restrictive limits.”2
In the ab-
I
opinion,
court’s
dissent from the con-
sence of evidence that the Board manipulat-
clusion reached in Part IV that
the inclu-
ed the District to create improper political
sion of
Cordova
District 2 violates the
advantages,
showing
there is no
that
requirement
that each new district be “as
Board
frustrated
intent of the Constitu-
nearly
practicable
relatively integrated
Const,
framers,
socio-economic area.”
tion’s
showing
therefore no
art.
IV,
6.
court fails to
acknowledge
§
the Board exceeded its constitutional
flexibility
guide-
these constitutional
authority.
addition,
lines.
the court’s conclusion
the acknowledged
Given
closeness of the
explain
does not
what Cordova’s fate is to
question,
667 P.2d at
(Majority Opinion,
be, now that
it has been extracted from 1215),
for this court to
inappropriate
it is
District 2.
Since
difficult choice of
judgment
substitute
its
for
placing it there was made
aby reapportion- Board. The court’s role is not “to decide
ment board that considered likely alterna-
preferable
what is
between alternative ra-
tives, this court should defer
judg-
to its
863,
plans.”
tional
Groh v.
ment on such a
question
close
and affirm
1974). Rather,
if the choice
the superior
holding.
court’s
made
Board was reasonable and
A “relatively integrated socio-economic
limits,
within constitutional
this court
area” is not
the same
integrated
as an
expertise.
should
to the Board’s
defer
Id.
socio-economic area. The Board is not re-
The inclusion of Cordova in District 2 is
quired
perfectly
to find
integrated areas on
within constitutional limits because election
districts;
which to base its election
it is
only
districts need
be “as nearly
practica-
permitted
language
constitutional
relatively integrated
ble”
socio-economic ar-
consider the
integration
relative economic
Const,
IV,
eas. Alaska
art.
Like
of various areas and to fashion the election
integration,
standard of relative
the practi-
districts according
judgment.
to its
One of
cability standard allows the Board to be
Carpenter’s
own exhibits
states
drawing
Together,
flexible in
its lines.
“[fjfrom the
perspective,
economic
Cordova
give
these standards
wide
Board
discre-
is closer to
and Tokyo
Seattle
than it is to
tion in creating election districts.
Valdez.” If the alternative
Tokyo,
then
it seems relatively reasonable to include
addition,
I believe that the practicabili-
Cordova with the
fishing
other waterlo'cked
ty
applies
standard
than how prac-
more
communities in District 2 that share similar
degree
ticable a certain
of socio-economic
interests.
integration
be.
The Board must also
consider the practicability
integrated
dis-
Furthermore, while the
re-
constitutional
standpoint
tricts from the
of other con-
quirements
for
were de-
straints on election districts. The Board is
signed to prevent rotten boroughs,1 Carpen-
required by
ter
both the Alaska Constitution
argue
did not
the Board included
Sims,
reasons,
Reynolds
Cordova in District 2
the mandate of
political
presented
1362,
and she
no evidence of
U.S.
84 S.Ct.
divide the state into equipopulous districts regard
without to relative economic inte-
gration, it also cannot create a district
based on with- solely socio-economic criteria considering
out the effect such a district
will have on the num- bers within districts. McKIBBEN, Adolph Vetter, Harley creating The effect of one district with a Vetter, Roudolph population unequal to that of the other Appellants/Cross-Appellees, districts is to off reappor- throw the entire tionment scheme. By removing Cordova from District just court does that. COMPANY, LTD., Mo MOHAWK OIL The shortfall District will Company, Tri hawk Oil & Gas Ltd. and presumably up by borrowing be made from Inc., Mining, Appellees/Cross- Con present testimony District 4. The at Appellants. suggested might trial this be accom- Nos. 6674 and 6675. plished of Ju- by separating the north end neau or the Douglas island of rest Court of Alaska. Supreme Juneau, adding 29, 1983. July that area to District 2.
The district created “solution” is socio-economically integrated
not more produced by linking
than the area Cordova
with southeast communities of Yakutat economy
and Haines. The of Juneau relies government, fishing logging.
Board considered this alternative to rejected
present District it. The
Board also considered relative socio-eco- integration
nomic of District and decided indisputably physi-
that while Cordova was Valdez,
cally closer to “from a socio-eco- in com- standpoint,
nomic Cordova has less with the predominantly
mon commercial-
ized and industrialized economies of Seward fishing
and Valdez than with the communi- Passage.”3
ties of the Inside judgment on these Board’s matters
should not be taken As the stan- lightly.
dard of review in Groh v. P.2d
866, suggests, this court should not feel free the same choose between alternatives already the Board has considered like
merely because it does not the Board’s accept I therefore
conclusions. would (1981). Board, Legislature, Reapportionment Reapportion- 13-14 State 3. The Redistricting ment and Plan for the