*1 Mich 388. 377 by Souris, Dissenting Opinion J. city pay $25,000, rental of an annual addition receipts. upon gross depending or more peti- not convinced On of facts am this state “engaged having been be tioner should the viewed constructing, altering, repairing, or business added); (emphasis improving others” real estate for petitioner improved realistically, real viewed and benefit involved herein for its own use estate exemption not, be therefore, entitled should from tax. the use peti- judgment summary
I would reverse the claims entered the court of tioner’s favor proceedings. for further remand this cause OF STATE LEGISLATURE—1965-1966. APPORTIONMENT BADGLEY v. OF STATE. SECRETARY Decision of Court. Legislature—Divided States—Apportionment Court. 1. effect, legislature remains Present remanding Sujjreme for divided between where legislative apportionment further action petition plan that been ordered to to review had dismissal 6). (Const 1963, art adopted previous elections § [33] [44] [42] [1-3, [4] Inequalities in giving 11. Am Jur 16 16 Am Jur 5-32, Am Am Jur 34-41, Jur rise References 2d, Appeal 2d, to a constitutional 2d, 2d, population Courts Constitutional Law Constitutional Law § 45-51] §§ and Error 18 Am Points 79. election question—Federal Jur, § 1009. §§ Elections districts or Headnotes 491. § cases. voting units et seq. L ed Apportionment 3§† 1966’j Ín re ok Memorandum.
Black, J. Mandatory Legislative — — Order Courts Commission—Contempt. *2 legislative ap- mandatory Supreme to the A order the Court of districting portionment complete to its work of may representatives apportioning the senate and house of lot, by by requiring members, the 8 selected be of enforced Court, by adopt plan Supreme an to review the for accnmulatory daily contempt each with an order fine of of at a decision until the commission arrives commissioner final (Const 1963, 4, 6). art § Apportionment.- Same—Jurisdiction—Legislative 3. plan vital Judicial to the of for enforcement legislature the the as set in the Constitution wherein forth power pro- Supreme Court is accorded the to determine which posed plan accurately complies most with the constitutional original jurisdiction review, requirements at an and its to any application, (Const 1963, 4, §6). plan elector’s art final Same—Supreme 4. Court—Jurisdiction. statutory power Supreme to The Court has inherent as well as (CLS 1961, 600.319). writ its § enforce Apportionment—Supreme States—Legislative 5. Court. legislative apportionment provision The mandate the of of Supreme secretary Court direct the Constitution that “shall perform duties, may review State or commission to their of adopted by commission, any remand shall final to such to the commission action if fails further coupled comply requirements with the this Constitution” of vesting judicial provision power, with as to and oath of requires responsible Justices action of forthwith office for 1, 11, 1). Supreme (Const 1963, 4, 6, 6, Court art art art § § § Same—Apportionment Commission—Breaking 6. Deadlock. secretary legislative apportionment the 8-member com- of to select lot mem- mission should be directed forthwith days district proceed are within SO bers who ordered apportion legislature, where the 8-member commission be allowed time
has hitherto been deadlocked and there must (Const review the taken the commission action 4, 6). art § 377 Mich Legislative — — — Commission 7. Same Courts Standards. legislative Supreme ap- in the matter The task supervision portionment and direction to the limited com- legislative apportionment performance mission to the its provisions applicable duties in standards and accordance protection equal the State Constitution and clause re- of quirement legislature both houses bicameral State apportioned (US Const, 14; population on a basis Am Mich 6). Const art §
Separate Opinion por Remand.
Dethmers, «I. States—Apportionment op Legislature—Supreme Court—Re- mand to Commission. Majority requiring legislative action appor- Court in complete according tionment commission to appli- its work requirements cable the Federal and State Constitutions shortcomings held, indicative ordered theretofore placed previous (US 14; Const, elections Am effect for 4, 6). Const art § *3 Same—Apportionment op Legislature—Courts—Equity. 9. Supreme equitable powers The Court’s inherent not do include power legislative apportion powers, the power appor- the legislature being tion the derived the Constitution and from thereby limited to review and to make determination with re- spect plan plans emanating legis- members from of apportionment (Const 1963, lative 4, §6). art Same—Apportionment op Legislature—Severance op 10. Invalid Formulae. The that certain pro- which were included in the fact formulae legislative visions apportionment Constitution have of for prechide been application invalid does other stand- found of determining any ards set in in the Constitution whether forth apportionment meets, accurately meets, or most con- of requirements (Const 1.963, 4, 6). stitutional art § Same—Apportionment op Legislature—Population—Census. 11. equal protection Constitution, clause the Federal as inter- of preted by Supreme States, Court the United does not of require apportionment legislative equal popu- districts as in of permits only lation as the census but the districts shall nearly equal population be as practicable (US Const, as is of 14; 4, 6). Am Mich Const art § Apportionment 1966] oe Legislature—Population—Bound- Same—Apportionment of aries. legislative previously apportionment adopted ordered Plan of by Supreme held, elections in Court 'for deficient excessively provision violative Constitutional it is that dis- of regular county, city, shape township tricts be and follow possible (Const 6). extent art lines to the § Apportionment Legislature Population — — — of Other 13. Same Standards. legislative apportionment whereby population Plan variance of slightly plan presently was but more than held, to effect nearly equal population practicable per- contain as within equal protection limits missible clause the Constitution of of United, Supreme States as construed Court of of and, complies accurately the United States since it most provisions other standards State Constitution observed, replace present plan (Const should be should 4, §6). art
Separate Opinion for Remand.
Kelly, J.
See headnotes 8-13. Discovery—Possibility of Abuse. right discovery It must be assumed that is involved in good proceeding legislative ap- in a to review faith portionment anticipate and the can neither possibility an abuse nor hold that warrants abuse inhibition right (GCB 1963, 303.4[3]). — n Legislature Gerrymandering (cid:127)— — 15. States Evidence. legislative . partisan gerrymandering districts should Proof of legislative permitted by Supreme reviewing plan Court in apportionment, competent since it is relevant and to enable Court to determine whether the has resulted mal- gerrymandering advantage, political by petitioner plan previously claimed review ordered *4 placed (Const 1963, 6; 1963, to be 313- art GCB § effect .413}). Separate Opinion for Remand.
O’Hara, J. 8-13,
See headnotes Mich 396. por
Separate Dismissal. Souris, J. Supreme —(cid:127) op Legislature —(cid:127) — Court 16. States Equal Protection. relative invalidity provisions State Constitution the The of of imposed upon Su- legislature the State apportionment the of reapportionment provisional responsibility preme Court of for legislative or legislative power pending enactment the State’s of reapportionment provisions in accordance constitutional for equality requirements clause as con- Federal with the the of Const, (US Supreme the United States strued the Court of 4). Id; Am Const art op Legislature—7-Member Same—Apportionment Commission 17. Law. —Constitutional legislative appor- Any judicially on sired 7-member commission provided tionment, lot 8-member commission selected from designed by Constitution, plan apportion- to select a final legislature ment without constitutional sanction held, the of (Const 1963, 4, 6). art § op Same—Apportionment Legislature—-Pinal Plan—Courts— Commission. plan legislature Supreme apportionment A which the leg- Court directed the 8-member commission on has deadlocked plan apportionment adopt islative constitutes a final though plan initially adopted same as been one a had days majority commission, becomes law 60 publication challenge by subject to an elector’s after judicial proceedings (Const 4, 6). review art § op Same—Apportionment Legislature—Commission—Courts— Mandamus—-Contempt. judicial power Supreme mandamus to order Court legislative secretary and the perform State to ministerial duties in with the connection legislative apportionment matter does not extend to com- pelling agree upon the commission to one other than adopt has directed the commission to upon bearing contempt accumulatory threat an order an daily each until commissioner commission should fine of respect arrive decision at to a apportion- final 4, 6). (Const art ment § *5 op Legislature. 1966] op Legislature—Commission Same—Apportionment 20. Plan-—Re- by Supreme view Court. legislature Any plan apportionment adopted by the the of of legislative apportionment, even commission on when ordered by Supreme Court, by Supreme the is reviewable the Court 4, petition (Const'1963, 6). the an on elector art § of Legislature—Secretary op Same—Apportionment 21. of State— Commission—Court—Mandamus. Supreme may apply An elector to the Court an order in the for compel legislative the nature mandamus to commission on of adopt apportionment Supreme which to a the Court has adopt, provision ordered the commission to in-view authoriz- of ing secretary Supreme the Court to direct State or of (Const 1963, perform 4, §6). commission to their art duties Same—Apportionment op Legislature—Partisan Gerryman- 22. dering. partisan gerrymandering
Fact districts the election of for legislators yet present State been has not declared to a re- of question by Supreme viewable Federal constitutional Court States, the United not would bar consideration such of of by Supreme by -properly alleged claims Court the State when petitioner (Const 1963, 4, 6). a art § Same—Apportionment Legislature—Partisan Gerryman- 23. of dering—Courts . may prescribe by The State constihitionally per- constitutional or legislative enactment, mitted standards of of legislature designed prohibit partisan gerrymandering, but where are no purpose, there such valid standards it is for province supply Supreme (Const Court to them 1963, 4). art Same—Apportionment Legislature—Present 24. Plan. districting apportioning legislature, Present and Supreme adopted ordered to be Court the commission legislative apportionment held, to have districts as formed compact, contiguous, regular shape and to have followed county, city, nearly township practicable boundaries as (Const 1963, art 1-6 §§ J. Same—Apportionment Legislature—Sufficiency op Peti- tion for Eeview. legislative plcm apportionment, adopted Petition review n legislative apportionment pursuant the commission on legally order held, an to be insufficient judicial inquiry made, upon could be state claim and, solely proof consists conclusion- complaint where offer of suspicion speculation supported only allegations ary allegedly by partisan achieved election results
reference through hope gerrymandering to discover facts 302.4). discovery (Const §6; process art GCB *6 Legislature—Gerrymandering—Dis- Same—Apportionment 26. of covery. seelcing Discovery properly petitioners, to to review denied legislature, sought thereby plan apportionment who to of of allegations partisan gerrymandering, peti- support where of proof their within tioners to submit an facts failed offer of of they hoped power distinguished to establish as from facts (Const 1963, 6; 1963, 302.4). 4, discover art GCB § Legislature—Due Same—Apportionment of Process—Elec- 27. tions. vacating previously adopted plan Supreme State Court Orders of legislature districting apportioning State and direct- of for ing legislative adopt apportionment another commission on any challenge by irrespective plan an not have elector held, of days process, adopted due because S been a denial of after Supreme equality had Court United States construed of legislature requiring as both to be clause houses bicameral of nearly practicable, apportioned population on a basis as as Supreme had had where State Court and commission various plans many them and election timetable then months before for required prompt action, Supreme and the and both commission adoption (Const have now its Court considered the since 4, §6). art Same—Apportionment Legislature—Correction of of Errors. 28. apportionment legislative Mathematical or mechanical errors of adopted plan previously districts in should be corrected on (Const plan pursuant petition review to electors’ of 4, 6). art § op Legislature—Constitutional Same—Apportionment Law— 29. Population—Boundaries. legislature, by apportionment Present State ordered of for by legis- Supreme adopted to be Court the commission on apportionment plans other lative should not be abandoned may provide population between districts less differential boundaries, shape, form, and or otherwise enhance concern for showing adjudication prior constitutional- absence of of ity 4). (Const was erroneous art op Legislature. 1966] op Same—Apportionment op Popula- Legislature—Equality 30. tion—County Boundaries. legislative apportionment districts, required Plan to be of of equal nearly population practicable as as would be invalid ground equality on equal expense such was too at the standards, equality approached subordinate where State if county boundary some lines must breached and some districts irregularly shaped (Const 1963, 4). art Same—Apportionment op op Popula- Legislature—Equality tion. Equality among legislative population districts, required as equality clause the United Constitution States Supreme Slates, construed the United Court neces- breaching county sitates some lines in order to have a valid (US Const, 14; Am Mich Const 4, 6). art § op Same—Apportionment Legislature—Current Plan. legislative apportionment Plan as ordered adopted legislative ap- to be deadlocked commission on portionment held, petition review, corrected electors’ requirements meet all Federal and State constitutional required to be remainder current decennium followed for *7 may provided by until such other time as valid constitu- (Const 1963, 4, 6). tional amendment art § op op Apportionment 33. Costs—Public Plan Question—Review op Legislature. proceeding apportion- No costs are plan to allowed review of legislature electors, upon by question ment petition a a of of public being importance (Const 1963, 4, 6). art involved § Separate por Dismissal.
Adams, J. States—Apportionment op Legislature—Review. 31. legislative apportionment by Plan which had been ordered the of Supreme by adopted Court to be the deadlocked commission on legislative apportionment plan by held, a reviewable the final Supreme petition provided Court on a electors as the (Const 1963, 6). Constitution art § Same—Apportionment op op Legislature—Sufficiency 35. Peti- tion—Gerrymandering—Constitutional Law. Allegations petition plan apportionment review electors’ to of legislature Supreme commission Court had ordered of Mich 396. LMav. adopt legislative apportionment to state to held,
on insufficient 4-, (Const §6). gerrymandering art legal claim of Legislature—Due op Same—Apportionment Process—Elec- 36. tions. adopted plan vacating previously Supreme Court State Orders of legislature and districting apportioning direct- of for adopt legislative apportionment to another ing commission challenge by any held, plan irrespective an elector of adopt- petitioners, process because been a denial due have days Supreme United States had con- Court ed S after requiring equality both houses clause as strued the population legislature apportioned on a basis to be bicameral Supreme nearly practicable, Court and com- where State as many plans them months had various mission had before for action, prompt required both timetable then and election Supreme have now considered and the State Court (Const 4, 6). plan adoption its art since § op Same—Apportionment Legislature—Equal 37. Protection. legislative Supreme apportionment as ordered the State Flan of legislative adopted Court to be deadloched commission on equality apportionment held, comply with Federal clause Supreme (US construed States Court United 4, 6). Const, 14; Mich art Am Const § Same—Apportionment op Legislature—Petitions—Conclu- (cid:127) sions. Conclusionary allegations petition in electors’ review legislature apportionment which State legislative adopt apportionment ordered had commission on requiring held, not statements vacation of fact (Const 1963, 4, 6). art § op Legislature—Petition por Same—Apportionment Review— Pleading. departure State standards Substantial from for legislature adopted plan finally must be shown in n purpose, compliance equality such where with Federal clause conformity standards; has less than with State necessitated full departure pleaded by and where such has not been electors in successfully petition review, their is not attached (Const 1963, 4, 6). art § *8 por op Legislature—Electors’ Same—Apportionment Petition 40. Review—Discovery. Discovery cogitations, motivations, the and machinations of of legislative apportionment, even the commission members of op Apportionment 1966] by proceeding available, irrelevant electors to be would if plan legislature, only apportionment as the plan review of of review, subject proceedings the commission are the all of of figures records, public and election open, census and official geographic political are matters precincts, and boundaries of (Const 1963, Supreme judicial takes notice which the Court 4, 6). art § por Separate Opinion Dismissal. JJ. M.
T. C. Smith, Kavanagh, and Souris op States-—Apportionment Legislature—Equal Protection. equal protection the United clause the Constitution The of of by Supreme States, the United States the Court as construed of legislators in houses respect to both districts which from they elected, requiring legislature are a bicameral of nearly population equal practicable, has been be found of complied by majority with in been the Justices have of Supreme by apportionment the Court ordered State the of pub- adopted the commission on 1963, 4, 6). (US 14; Const, art Am Mich Const § lished Law^Supremacy Clause—Equal Protection. 42. Constitutional Supreme interpretation the United States the The Court of of equal the United protection the clause the Constitution of clause, is, by supremacy to be a deemed virtue States 6, 14). (US Const, 2; part Am Art Constitution § op Legislature—Constitutional States—Apportionment Law. requirements" the State Constitution “constitutional test The ap- Supreme measure the State Court must legislature portionment Federal consti- includes relevant requirements, equality as construed clause tutional such as Const, 6, (US Art Supreme United States Court 6). 2; 14; Am Mich art Const § § op Law—Construction Constitution. 44. Constitutional requirements are construed Federal and State constitutional disharmony, together harmony, applied but when when 2). Const, overriding (US requirements Art are § Federal — op Legislature Supreme — — 45. States Law. Constitutional apportion- present plan Court’s declaration legislature same as is the ment unconstitutional (Const 6). declaring 1963, art constitutional § *9 377 Mich 396. Same—Apportionment op Legislature—Constitutional 46. Law. legislative present plan apportionment to failure first find of complying requirements was mvalid as not with the of precludes plans consideration other Coiistitution of of- by legislative apportion- members the commission on fered of (Const 1963, 4, 6). ment remand art § after Same—Apportionment op Legislature—Population 4.7. Basis— Deviations. plan population-based apportionment A adherence to a faithful of legislature only the State with such minor deviations of may recognizing any occur are taint factors from free plan arbitrariness discrimination must be used of of of (Const apportionment 4, 6). 1963, art § Same—Apportionment op Legislature—Mathematical Rigid- 48. ity op Formulae—Population Disparities. apportionment legislature, presented
Plans individual of legislative apportionment members commission on and so of designed permit percentage as to a maximum variation from average, up mathematical even consideration on electors’ if petition plan adopted, to review held, hitherto unconstitutional rigidity because mathematical and because of formulae gross population disparities (Const 1963, between districts art 4, 6).§ Gerrymandering—Federal 49. Same—Partisan Question. gerrymandering legislative Partisan districts has not been Supreme condemned as such as unconstitutional Court of States, having question yet the United no Federal been found presented thereby. be Same—Apportionment op Legislature—Final 50. Plan. apportionment legislature Plan heretofore found complied requirements have with constitutional and directed Supreme adopted again published Court to be petition which, on held, reviewed electors’ with mi- final corrected, nor subsequent errors should be elections followed may until reapportionment required the next decennial or as (Const 1963, §6). amendment constitutional art Costs—Apportionment op Legislature—Dismissal op Elec- tors’ Petition. No costs petition are allowed on dismissal electors’ to review legislature had legislative apportionment adopt ordered commission after majority any agree upon had failed (Const 1963, 4, 6). art § 1966] 4Ó7 oe May Mich.410 and 481-483. See 376 Submitted (Calendar 50,999.) No. Docket No. plan adopted by legislative appor- No commission on expiration days tionment after of 60 from November Secretary 2, 1965. Certificate of of State filed Jan- uary informing 4, 1966, Court that commission had *10 adopted plan. upon previous not a Canse considered jurisdiction. retaining order Petition EL William acting Searchlight, O’Brien and others for Civic asking right Inc., to in the or, alternative, intervene Original petition curiae, file brief amici denied. granted Supreme being hot March 8,1966, Court divided to immediate between mandate to commission
complete by functioning through its duties 7 mem- necessary, if lot, bers the commission chosen prompt per action, J.; and for review such Black, adoption remand matter to commission for plan, per another JJ.; Kelly, Dethmers, O’Hara, petition, per M. Kavanagh, and'dismissal of T. Application C. JJ. Adams, Souris, Smith, appeal for leave to the United States nied dismissed Court rehearing November 21, de 1966; January 9, 1967.
Dykema, Spencer, Trigg Wheat, & Goodnow Tracy, (Nathan B. and James D. of coun- Goodnow sel), plaintiffs. Kelley, Attorney
Frank J. and Robert A. General, Derengoski, Solicitor for defendant General, Secre- tary of State. Masey, (Theo-
Rothe, Marston, Sachs & O’Connell counsel), Sachs, dore for intervenor defendants. (cid:127), Stanley petitioners Beattie, E. O’Brien right amici denied or file brief Others intervene curiae.
4Ó8 377 (for issuance oe Memorandum Black Justice writ; immediate submitted to mandatory other mem- bers Court January 1966). a great problem
“"We have here onr maintaining onr with own credibility people.”1 As constitutionally ordained original pro to an ceeding ignominious close, draws the Supreme ,of Michigan has a great problem Court also main taining credibility its its own people. We order mandatory have issued to the commission on legislative apportionment, the purposeful integ of which five of rity have attested “pursuant us specific mandate which appears paragraph 8 of said 6”2 section Mich at (376 481). The time for performance has and the com expired, allowed Now, mission has refused to comply. plaus without explanation excuse, ible the Court will set in any motion one the several means of enforcement which it may and should turn.3 In blunt exigibly will short, not execute pivotal assign ment of the Constitution; paragraph *11 assign to ment the people assure that the commission its 5 “performs” paragraph duty. 4 an ultimate end Since negative captioned ahead, is proceeding directly and since the proceed- is of such public nature as render ing beyond to it settlement I compromise, have concluded that Dree Press November to which the Court an arrives stakes politically. strong [2] [4] 3 One, The 1 accumulatory Const Ambassador Const for daily at a the most 19C3, those who cannot stand the action versus inaction under said section 6 are coveted January 2 “final decision” under to terminate The fine would have to be (370 art art Goldberg; quoted by monetary daily might Mich at 8, immediately § § fine of each 6.—Reporter. 0.—Reporter. turn would bo an its value thereof is dear unto 445, 440). deadlock, paragraph effective means commissioner high sight James And in amount of order 5 written into our record (of political if Reston in until section said contempt priceless. persuading the commission method is too blood, course. the Detroit bearing another 6). The 1966] op Mandatoky Black, Memorandum Wbit. announced better now, the fact should be yet uncertainty may in the remain such relieve governmentally citizens. No concerned minds of prolonged political agony, be nature, should even fragmented Today’s divisively unnecessarily. cir legisla that the it order reviewed, cumstances ture be told is get may immediately on with legislation; critically requisite that there task its suspensory for affirma concern need no further judicial has demitted that the commission action; tive nothing it. will do about and the Court jurisdiction appeal original is dead. our This except bandying of words about All over plea around another fervent deliverance (see amendment Justice constitutional Court say 466-469). Mich should Souris, at Court dally along January, than rather so, now belatedly obliques only admit the fact dissentient protestations, spring. All denials side- next contrary delaying to the notwith- actions winded majority standing, will for want of vote the Court 2d. its order of Without November enforce part judicial That section 6 is lifeless. enforcement upon which the whole article was de- of article decennially signed pivot now and hereafter, prior day paralyzed. to the 1966 Some backbone (373 253), knew in at cutoff date we geste presently its beau to the will deliver ambagiously legislature. It will districted descend Capitol third to second floor of the from the in possiclentes beatitude, an beati the form of exalted (blessed possess). who are those galvanize into arousal” should the Court If timid “writ of promptly judicially, timely section 6 calls for shall pursuit of what Predictably, though, no amende honorable. our record an write into my place on must our conference table. The bird be set at erow will *12 quaternity I see of marks- brought first—quick too—and no down men here. Kelly. arousal” was invented Justice prerogative The “writ of 51 ABAJ at 1053. -Talbot Smith Pormer See Justice 377 Mich Mandatory by Black, Memorandum Writ. through every
Woven
so
word
far
in re
written
appeal
original jurisdiction
to our
is a little
matter known
the truth
that must be served.
It is that our order of November
can
2d
be enforced
provided
Court,
the Court
to
has
will
say upon authority
enforce
To
it.
section 6 that
o.f.
Supreme
Michigan,
Court of
“in the exercise
—
—
original jurisdiction,” may
no “shall”
direct
perform
(that
the commission to
its duties
we have
482),
say
imply
done; 376Mich at 481,
and then to
deny
that the Court cannot enforce
writ,
to
its
is
statutorily provided.6
what is inherent as well as
Significant too is the fact
no
that
member of this
willing
up,
is
Court
to stand
on the
record,
aver
ment either that section 6 is invalid or that
people,
section, have tvritten into their
gov
Constitution a
ernment can
no
mandate
branch
the State
only exception
The
is Justice
enforce.
(see
461-469;
Mich at
. apart judicial delinquency. I stand from such The to Court fails attend the Constitution with that reso- people Michigan, lution which, has been Monday since due the first of 1966. Its failure is again sure to rise and Court, haunt the in 1971, when the decennial census recorded and the newly appointed duties of a commission and of the play called are into anew under section 6. way only The to avoid such recurrence an intervening amendment of the Constitution. But duty may even that avenue of from retreat not be authority necessary any justice.” trol over all inferior “See. action it (CLS 1961, issue deems expedient The any writs, Supreme proper courts and tribunals. § 600.219 effectuate its to facilitate Court has a directives, [Stat Ann 1962 and mandates determinations, general proper Rev superintending administration § 27A.219]). Court has judges take con- *13 1966] In re 411 op Mandatory by Black, J., Memorandum for Writ. 10-year party open. question of control When legislative at of the branch is stake the critical wording proposed, of a clause to be constitutional fury drafting the interneeive of the committee or likely is more than to result another committees political participants with all on the deadlock, floor. by up ifAnd some chance the drafters come should they might agree with what for considera- to submit enough approve electorate, tion of the will electors realizing experi- as all will from it, these telltale way of 1965-1966that there no ences will he to insure they what are ashed to indorsef enforcement of To conclude: provisions judicially 1. The 6 section are en person, no court, tribunal, foreible. There is government may pass branch the to which buch. this politically Something healed more than paragraph power upon cast is this Court the final conjoined section 6, section is with the first section of 6 article and the oath each seated uplifted Justice with has subscribed hand.7 There prefaced duty, the honor is It that verb “shall.” very at is aimed navel of the Court paragraph final of section 6. spawned criticism Current of section 6, of second deadlock of the commission, is at the aimed
wrong target. The fault lies not with the section judicial but with the branch. Section 6 awas well thought procedural probably out solution of what is problems organization the most difficult of all legislative of assemblies. far So as I can only constitutionally provided discover,8 it is the senate. and 7 of the amendment Missouri. deal 8 The See Const approved nearest Excepting apportionment Sections 2 last to section 6 constitutional art Friday interchangeable of the house of § article 3 deal with (January 2; of the Missouri amendment Const 14, 1966) by representatives. reference procedure art apportionment § to the 1.—Reporter. the electors of so far effected Sections 5 “senate,” article Mich Mandatory Black, Writ. Memorandum districting extant for means explicitly judicial legislature directed under a State again, supervision. is ever case where But required, mandate of constitutional enforcement assigned agency stronger no than the the mandate human is ever element enforcement. its why, occasion, that That is on sad the weak link. men laid schemes o’mice and “The best *14 Gang a-gley, aft grief pain, nought and An’ lea’e but us joy.”9 promis’d For by partic- inaction, releases Court, 3. As the duty forever, from some citizens ular commission one) (the being surely will themselves find writer wry giving a to the four Democratic divinators salute prescience that foursome commission. The of the wondrously four uncommon. How is has shown days waning confident, in have those could been so of the that five members December, of Michigan what the five not enforce of would Court ordered the early do, Novem-
commission back districts,” provisions of sec- “senatorial the relevant “senat-ors” and tions 5 and following portions of duplicate in full substance said and 3: sections required apportionment statement “After statement [final map, representatives of the house of approved is filed members commission] according until a be elected to such districts shall if provided, exeept that the state- reapportionment as herein made appointment ment within 6 months the time fixed for filed of repre- commission, discharged house of of it shall stand and the of apportioned be the commissioners the State sentatives shall supreme eourt, majority sign apportion- its a of shall and file whom secretary days map ment date members such with the of within of the discharge apportionment of the commission. Thereafter according representatives reapportionment be the house of shall elected pro- as until a is made herein districts ** * vided. supreme are “In the event the commissioners the State eourt representatives, charged apportionment house with the of the they of State within 15 secretary map shall file their with the days discharge of the of the commission.” court supreme what do com- Now will the Missouri should the six arrive at a deadlock? Follow our inaction missioners that court now, precedent? Come Brothers. Burns, Mouse,” “To Robert a stanza 1966] ok Mandatory Black, Writ. Memorandum power power; only a to occult attributed her, can gentlemen, standing given mortals. These to few quo painful through every hour the status firm for predictably 60-day period, saved have of that legislature, probably presently eur- for all districted polit- spiritual (not rently Their foreseeable time. high course) order. should be of rewards ical mandatory forthwith, re issue writ should Our proceed secretary quiring that the jury say promptly10 from box borrowed insert, uniformly eight nearby white court, circuit folded bearing respectively slips paper of the the names eight commission; that then close of the he members county up are wont shake it clerks the box upon jury that he with dis selection; then, to do slips gaze, creetly out averted draw seven that he after other; and announce one after the each withdrawal the appearing with name on the slip. drawn separate simultaneously
A issued writ should that the first members of the commis- direct seven slips, by the seven *15 sion, identified withdrawn thus apportion “proceed to the senate shall and house district and representatives” of within an allotted days, say provide 30, of and should number prompt of of the action the seven commis- review petition present upon proceeding in the filed sioners any pursuance paragraph elector; of all in of 8 paragraph 2 of 6 and of our order said section said 2d. November despair, need or flee the should
No one hills any result of an order issue. Whatever the such that result action, would such 7-man pursuant para- subject to test to said constitutional though proce- graph And such mandated 8. even again might, being critical, the time element dure [10] After due publication and certainly in a public place. 377 Mich Mandatory J., for Black, Writ. Memorandum intact elec the Austin-Kleiner leave say would be able to 1966, Court tions this paragraph said manfully duty performed it had are “in only “Drest” we it. imposed upon 8 has said of even be authority,”11 might a little brief our finest hour. day us some that such was SUPPLEMENT (February 1, 1966):
In the since journal things happening great in this (February section was first invoked 4, Mich find that our 1964; 418) paragraph we out. It is fitting 8 time-account is running until all of put away not he closed and journal the other the Court have doffed hats members he received no though sup Justice Souris. Even last, port November 2d our Brother has succeeded the aim of that motion to veritably achieving further “adjourn proceedings this matter until 1966, or February 15, until the further order of this (376 Mich at a motion he has followed 469); Court” a motion to today by dismiss constitutional It is now that proceeding. perfectly clear, February arrived, with open has no preparatory judicial action in the meantime,12 that the Court and the tempt, public service, malpractice, Justices have ment for January 17, proceeding, affeeting for a throw this it Michigan, has since been scrawled or communicated to other members of the Court. The at commission “was deadlocked and unable to concern. But this whole sordid business. “what 11Shakespeare, On *16 first, 482). entry See January variety to do” about the commission’s and then paragraph of a “further In constitutional Michigan legislature.” advised 1966 and now nary accordance with that engaged busily upon tort, zoning, Measure for dismiss it later.” There is the a written or “2" only exception as it does Court, mandatory of our order of November proceeding right Court met for the today’s motion—by Measure, workmen’s spoken the agree upon January 4, His order and like matters of less is the very paragraph intransigeance. word about this act report business of future compensation, foregoing 2, this cause.” out seene concluded purpose that the commission Justice Souris—to explanatory for the Court. secretary writing memorandum of Since then the government time-emergent contract, con- considering apportion- (376 “Adjourn pressing opinions key prayer op 415 1966] Mandatory Black, J., for Writ. Memorandum left 4 months within commission have but scant finality, complete, with what section calls which to 6 enough, expect- delays being for. That isn’t further adjourn, said motion to able. Justice Souris’ even though at the flowered into subtile time, has denied The Austin-Kleiner subtle—effectiveness. —not plan, Court made effective the 1964 only, plan” legislative a “final within elections never for the 6, assured full effectiveness said section is legislative 1966 elections. many negation of advertent times,
Courts accomplish procrastination, affirma- or inadvertent though It is so here. Even there should tive results. be change majority heart, an immediate require- predictably impossible fulfill all of the prior paragraph 8 to the June deadline. ments of (March 1966): 8, foregoing has that the memorandum roused
Now into written-for-the- the Court other members respective views their record contribution of things The first is stand forth. decisions, two previously departing stead from his Justice Souris, 6 unconstitutional fast section declaration (372 Mich Mich 376 461-469; 257-262; at 373 joined 458-469), members of this three other at has para eight-man under selection, in the final allegedly graph unconstitutional sec of that same plan. (Austin-Kleiner) the Democratic tion (Justices four united is that the now The second stand M. Souris, T. Adams) Kavanagh, Smith, proc original paragraph of this for final dismissal eeding.13
Mo described ing “Shackled as we to confess A less a similar timid and less (235 ease. that even are with denouement SW Here are judges in our partisan bias and respectful his words State, ex rel 1043) judge than highest courts ; another prejudice, summary: Lashly, closely divisive v. it is are undersigned Becker, unable to humiliat- *17 416 377 LMar. Mich Mandatory Black, 3., Writ. Memorandum joinder quaternary presently is of course
This de- By deadlock here the deadlocked cisive. legislative apportionment no is more. Nonethe- being philosophic by say I am less, nature, moved pass that what has thus come to is better than more judicial stalling. It amounts at to a least “decision” by impasse. paragraph original proceeding
Ever since this May was submitted last “decision” the Court dallied a has over just having anyone, about a near or dis- Capitol’s tant connection moccasin tel- egraph, predicted. Turning away could have from paragraph duty per- its see that the commission duty; adopting plan” its that forms “final districting apportionment; and the Court itself— proceeded appor- “to stalemate—has district and representatives,” tion the and senate house thus effecting plan.” its own “final expressly My
From all I abstain. reasons Michigan appear report in the 376th at 440-451.14 polities. emergencies, great small, they and In divorce law and have cry, heard the Macedonian and have not been disobedient to the call. “What avails a if it can constitution be stricken down mere and, many believe, partisan in politics? inference the interests of only good Such a conclusion should be announced when and substantial given apjpeal reasons can be therefor that will to the common sense understanding people. sophistry and theories of our Mere and attenuated purpose reproach.” will not nor serve save us from go far, goodness, mercy, charity, credulity being I cannot that and Michigan; before, dominant whereas servient in Missouri. As “it again Michigan loftily must be said Court of (376 separated partisan politics.” 448.) from Mich at What now, distinguished writings past Justices write of from and indorsements writings, they sincerely They thought believe. have this all out pure what Justice Cardozo described as the “realm of reason.” The (Nature Process, 168) p contexture of the Judicial : “I grandeur conception not doubt the do whieh them lifts [judges] beyond pure reason, sweep into realm of above and less, perturbing deflecting any- forces. if None the there thing reality my analysis process, they judicial do not heights; help stand aloof on these and distant shall chill wo by acting speaking they if \he cause of truth do.” constitutionally duty exclusive (a) “I hold it is the legislative apportionment apportion commission on to district 1966] oe Mandatory by Black, Writ. Memorandum proceeding. paragraph If it were, This is not my only) (this reference is for vote future then support with Justice be cast would Dethmers my unreserving support of 5. When No. immediately was recorded last that follow words 483), (376 every Mich meant 21st bit November support. words, written Justice of that (376 457) at : Adams *18 overriding “Though are the Federal standards why followed, no reason the stand- must see
and ards and be provisions in own our State Constitution applied possible if it to do so. not also be should is regard the failure of 80-20 formula as I do having destroyed these standards. commission always possible, apply if at all them, should remem- said; bering that United States “ constitutional that, standard, as a basic ‘Wehold requires equal protection clause that the seats legislature of a must in both houses bicameral State Reynolds apportioned population a v. on basis.’ be Sims, 568.” 377US plan the Austin-Kleiner and said
When No. arrayed together paragraph for 7 choice 5 are accurately (“which plan complies most with the requirements”), is no constitutional there contest. express admission of Austin-Kleiner Justice 433) (post p defect; at serious discloses Souris by judicial fiat. Plan would cure defect the Justice preserves what sections hand, on the other 5, No. 1963, call 3 of article of the Constitution (article equality consistently clause with our own for duty cannot, (b) that representatives; that house of senate and otherwise, by this Court over paragraph 8 or taken under said appear in said violating section plain directions whieh without legislative apportionment 4; (e) the commission article that 6 of has not as duty (d) yet performed for the entire remainder its respon- peremptory period, our present decennial follows”; sibility paragraph 8 instruct said under Mich at 444). (376 377 Mandatory by Black, Memorandum Writ. 1) equality § well as the clause of the Fourteenth Amendment. plans constitutionally
True, neither of the two perfect. paragraph No has to be when a ensuing choice is in order. The reason is that next paragraph ready stands correct, “review” if upon, any plan” adopts called “final the commission pursuant paragraph 5 of section 6. said Did not delegates, people, put paragraph and in turn the paragraph very 7, in said section after purpose? final (for commission). J. remand to the On Dethmers, justices May joined 26, 1964, and Adams Smith approving Justices and me in O’Hara, Kelly, appor- the Hanna-Huhtala-LaPorte-Brucker complying accurately tionment as most with article Michigan Ap- 4 of the Constitution of In re portionment 372Mich 418,480, Legislature—1964, disapproval 482. This involved of the Austin- plan, Kleiner then also before this Court, for lack compliance. of such accurate Pursuant thereto an day directing order of this Court issued that same *19 adoption plan by ap- of the Hanna-Huhtala portionment commission. Thereafter, Reynolds spoke Court of the United in States v. (54 506), Sims, 377 L 1362, US S Ct ed 2d requiring apportionment of both houses State legislatures population to be on a basis with districts nearly equal population practicable. as as is majority There followed two of a orders of this vacating May on 17, June the first companion 26th order, and the second, order, directing appor- the commission to reconsider the light tionment matter in the of the decision in Reynolds. Apportionment Legis- In re State upon Mich the com- Next, lature—1964, 1966] In re Apportionment op by Dethmers, 3., Remand. mission, reporting inability get its continued majority agreement plan on a and its members submitting plans, including again the Austin-Kleiner plan, four members of this Court June 22, 1964, opinion finding filed an that that selfsame Austin- nearly plan complied Kleiner most with the Federal requirement Reynolds. constitutional announced in Legislature—1964, opinion concerning In that it is said plan (pp 254): Austin-Kleiner “By such districts both senate and representatives composed territory house of are containing population equal as the 1960 Federal permits. Subject controlling decennial census to this objective substantially equal population, and to the estent it would not be subordinated, districts compact, contiguous, such regular are formed as and shape, county, city, and do follow township practicable.” nearly boundaries as signed opinion This four Justices—T. M. Justice, Chief Justices Kavanagh, Black, Smith, adopt and Adams. It directed the commission placed the Austin-Kleiner and that it be effect for the 1964 elections. Justices O’Hara apparently basing concurred in the result, Souris solely grounds. their concurrences on Federal ostensibly All of the above occurred under the provisions paragraph of the seventh article Michigan § Constitution of 1963,- reported having inability agree an and individual groups having members members submitted plans different to the Court. The last order noted complied of this Court was the commission plan adopted and thus was the Austin-Kleiner published. filing petition
There followed the in this eighth paragraph case under electors, *20 [j\íar. Mich l>y Bemand. Detiisiers, by seeking this Court of review 6, article section plan. adopted Austin-Kleiner the majority Court, of this 2, 1965, November On proceed commission to the cause, ordered in this plans it to to enable with consideration anew requirements according apportion of the Federal retained and Constitutions 481.) previous- (376 majority jurisdiction. ly (June A 1964) having held that Austin-Kleiner equality population complies nearly with the most requirement Constitution, this Court’s Federal indicative majority 2, 1965, is of November action shortcomings plan’s insofar considered of compliance requirements State Constitu- with concerned. tion is
Query to the commission this return whether well, proceeding placing back considered as paragraph paragraph At all 8 status. 7 or in events, agreement majority again failed reach report, upon Austin- their back comes and, by upon urged the Democratic the Court Kleiner house and senate a so-called commissioners No. 5 Republican Whether, commissioners. juris- express retention of or inherent either under 1965, direction of in the November diction in the commission, this is still anew to the matter paragraph agreement, posture with no commission matter of a calling majority for determina- thus submitted mem- of which tion this Court accurately complies most the commission bers with requirements, now ma- or has constitutional paragraph in which this Court 8 stature into tured performance the commis- of duties shall direct adopted plan secretary State, review sion if the to the commission remand shall requirements comply this Con- “fails re- practical the same. We stitution”, result may, plan. we Then Austin-Kleiner view *21 1966] or J., by for Remand. Opinion Dethmers, paragraph whether the Austin- 7, determine under Kleiner or plan any submitted
No. 5 or other accurately most com- of the commission members plies, paragraph under determine whether or, as comply adopted if and, so, fails to Austin-Kleiner for further action. In the commission remand doing to permissible, latter, it would be in- methinks whisper requisite, at to least the Court deed some other No. 5 or tones, not too inaudible accurately more a commissioner com- submitted practical purposes, plies. then, we are For all ground. familiar interject juncture, that I
At I consider should this or last two above courses to one the other prem- powers in the sum total of our constitute the ises. I not do subscribe to the idea inherent legisla- equitable powers apportion to the Court English powers. concept in never the tive Such was powers in matter law. Our must or American provides expressly It derive from the Constitution. in powers apportionment, the manner article 4 for whom. The not of their exercise Court apportioner. designated an Neither therein do powers in the in the Constitu- vested Court elsewhere power. reject I such the idea we tion include power appor- in the matter to order have devising or choose tionment of our own from plans than or sources other the commission some officially or of its submit this one more members upon imposed us, article 4. There Court under the heretofore mentioned function task then, respect determination with review and make plans emanating of the from members com- mission. holding this of the
Some members specified in arti- .7 formula 80-20 formula cle for the % respec- apportioning House, the Senate tively, Federal as violative of the unconstitutional 377 for Remand. Dethmers, equal protec- Amendment Fourteenth
Constitution’s ap- have written that standards for clause, tion other portionment forth in article 4 are not section 6 of set provisions from the mentioned formulae severable holding therefore, cannot survive the and, invalidity. argued latter’s From it is that there no valid are, then, State constitutional standards against validity. judge which to Austin-Kleiner’s nonseverability accept. This Justice contention do Mr. opinion of November his Black, reported seq., Michigan page at et has *22 expressed agree rejecting his reasons for such claim. completely It
therewith. seems to me that it is possible for some or all of the other standards requirements § made 4, 6, article to stand and be though effective even the formulae be eliminated apportionment. from the determination of If the equal Federal Constitution’s Fourteenth Amendment protection says clause, as the United States Reynolds, requires population equality in be- nearly practicable, tween as if districts as this majority Michigan bars the intent of a voters, adopting ge- the Constitution, to cause area and ographical temper xoopu- considerations to or dilute lation standards it formulae, use does in people, follow that the because frustrated that attempt, peevishly anything formulae would refuse they reject any less that, thus, would or scorn adopted already of the other standards, them, give meaning ge- that tend some to area or ographic ap- net final, considerations total portionment pose question solution? To makes sugges- manifest the ridiculous character of such a Reynolds. tion. Those standards survive The non- severability theory ought permitted not to be to be problem barrier to determination of the before us of whether Austin-Kleiner constitu- meets 1966] op re In Dethmers, Tjy for Bemand. plan, any, requirements or which if most tional accurately does. finding, previously may if such noted,
As he majority of this Court on June called, respect complied was that it Austin-Kleiner nearly with the most Federal Constitution’s Four- requirement population. teenth Amendment None said as to complied that it was the which most accurately Michigan § 6, with article 4, Constitution requirements of 1963 continue exist aside from the as While, formulae. above the four- noted, justice opinion of June comment did that the Austin-Kleiner formed districts as “com- contiguous, pact, regular shape, and do follow county, city, township nearly as boundaries practicable”, it is to observed that this statement prefaced expression is which reveals that it premised plan’s on the is controlling objective consideration that attaining that districts “containing population equal as the 1960Federal permits.” any decennial census Thus, comfort for suggestion finding the opinion that made complies
that Austin-Kleiner most accu- rately Michigan with the Constitution is based premise the false the Federal Constitution *23 Reynolds require apportionment into districts equal containing population per- census Reynolds go mits. provides does not extremes, such but only nearly that districts shall be as of practicable. equal population as is So read and enough majority understood, it is clear no that or portion of this held Court has that Austin-Kleiner complies accurately most of article the Mich- igan previously also Constitution. As noted, on May majority 1964, a of this still Court, mem- of this bers held that Court, Austin-Kleiner was not plan complied. Nothing which so has since been by any any them, written or other Justice this Mich 396. Dethmers, Opinion by for Remand. that Austin-Kleiner Court, demonstrate did, after accurately comply. most all, Instead, is written plan, adopted Austin-Kleiner, that the on order of presumption Court, must hear the this tionality, of constitu- petitioners proceeding that in this bear the establishing unconstitutionality burden of the plan, adopted they Austin-Kleiner have not pleaded it and, borne prove fact, have even facts to proceedings it, and hence the should be dis- by petitioners. for missed such failures This com- pletely the nature of proceeding misconceives this duty upon and the function and laid this Court Michigan adoption article Constitution. If plan by of a the commission, either of itself or under gives plan Court, order the benefit of presumption proof such and a burden of rests on petitioners, purpose pro- there would be scant viding, paragraph upon petition as does for8, review any elector and for Court determination of comply. purpose whether the fails to The manifestly is to secure in com- pliance provide with the Constitution, not to for a adversary proceeding. match of wits and skills in an duty discharged of the Court is not nor satisfied adequacy peti- a mere determination of the pleadings, sufficiency proofs tioners’ nor of their (which it is said are insufficient, the face of a majority of this Court’s constant denial of their petition discovery help develop proofs), such contraiy, duty but, on the of this finding compliance make as to constitutional and, respect, if found that fails to remand quality, it. The test is not the character, and skill petitioners and their efforts, but, rather, question itself. That is the for our answer and should meet with no avoidance on the basis technicalities otherwise. Austin-Kleiner Does *24 1966] oe for Remand. Dethmers, requirements surviving permissible, meet article 4? expressed majority Court,
The word opinions, observed, was that above official in Austin-Kleiner comply. has since
did so What contrary? Nothing or discovered to the been shown The called to our attention. to that effect has been in this to this Court and statements submitted briefs proponents who are those commissioners matter display surprising such knowl- of Austin-Kleiner figures they allege edge in and avid interest Republican represent the relative number of and representatives who will Democratic senators legislature, on to the State the basis of be elected in vote for State treasurer under the cast plans, considerably as to weaken their ve- different hement thereto plan
protestations
having given
regard
no
devising
Austin-Kleiner. A look at
majority
To what a
does as much.
of this Court
point,
give
on the
once announced
continue to
ad-
excessively
herence. Austin-Kleiner is
violative of
requirements
permissible, surviving
article
respects
opinions
§ in the
heretofore mentioned in
this Court,
of members of
such as that of this writer
appearing
comparing
at
senate respect to amended *25 Dethmers, J., Bemand. by Opinion greater compliance No. disclose 36,* senate district § surviving 4, It of article 6: is with the standards accurately complies plan with most those which requirements. constitutional pointed by the who are It is out commissioners proponents presents that it dis- the Austin-Kleiner nearly equal population plans of than do more tricts No. Attention again must directed the fact be Reynolds require does not absolute numerical that possible, equality, rather, nor would this be but, “as equal population practicable.” nearly as is How permissible? In No. 5 much variance the house is largest populationwise 73,866, district numbers largest 5 the In No. 68,246. senate smallest compares the smallest This with 216,118, 199,528. largest 207,094, follows: senate, Austin-Kleiner as largest smallest 205,064; 72,200, smallest house, population plan, differences, either 69,118. These largest with the districts, and between smallest halfway hardly running between, are rest about political power and influence laws kind of stuff from equal protection deprivation of the are permissive Obviously, no exact formula made. variance Reynolds expected. object in can The be prevent to have been to control and the others seems slight here differences as dis- minorities. Such regard. significance in that The are not of cussed Reynolds nearly population provision equality as practicable” to call for use of seems “as majority Michigan If the common sense. adoption voting in 1963 of a Constitution electors meager they checks and bal- that desired decided of area and inherent in some consideration ances legislative geographic factors in Reynolds requires powers, total do not believe district intervonors, [*] 36No amendment and were thereafter proposed changes in adopted petitioners senate the Bepublican commissioners. herein, No 5 relating as suggested by to senate Í966j op 42? by Dethmers, for Remand. expressed disregard of the electors as of those wishes merely itself for the sake Constitution slight population avoiding be- such differences plans as contained No.' 5. Com- tween districts object sought the United States mon sense require. do so attained, be plans my No. as view, house and senate In accurately comply permis- with the amended, most surviving requirements standards and sible, Michigan § article Constitution permissible object in their are mind, districts equal nearly practicable population for the Reynolds. sought purposes subserved *26 declaring Austin- An order should enter remanding plan and it to unconstitutional Kleiner for further action consistent here- the commission with. (for commission). am to the I J. remand Kelly, agreement complete accord with and Justice opinion. thought to add to the write Dethmers’ properly of their as a “constant denial
he described disagree oppose petition discovery,” and and following with the three conclusions Justice Adams allegations (1) “petitioners’ insufficient are that (2) “peti- legal gerrymandering”; claim of state discovery that have failed to demonstrate tioners would (3) appropriate “the case”; cogitations, and machinations of motivations, not be commissioners, discoverable, if would even he conclusion relevant,” and Justice Souris’ allegations legally regard petitioners’ “not does judicial inquiry upon which a claim state sufficient can be made.” Michigan peti- distinguished
Thirty-four citizens August our to rescind 22, 1964, tioned this Court June and plan approval Austin-Kleiner 22, 1964, prove that: to this Court them to allow 377 Mich for Bemánd. by Kelly, actually par- Kleiner and others who “Austin and ticipated drawing plan the Austin-Kleiner data obtained and utilized extensive and records past voting precinct, city, township, results in each county, including specifically the results of the election, which data and State treasurer records compiled support were and tabulated and with the party of the Democratic and the Union, International purpose utilizing UAW. ords such data and rec- Kleiner and their Austin, aides, was creation apportionment plan of an most favorable to the party Democratic and its candidates. “Different variations districts equal population were drawn from time to time preparing plan, the course of the Austin-Kleiner by application each which was tested of such data past voting records, and such was succes- sively attempts revised and redrawn in to maximize voting party strength, Democratic toor minimize Republican party voting strength. plan, adoption, “The draftsmen after its openly objectives achieving boasted of their success their openly they also stated intended negotiating as ‘a document’ and had expected adopted get original to be able to in its form. plan accomplishes gerrymandering by “The such apportioning any regard the districts without
political subdivision or natural or historical bound- *27 ary districts by constructing unnaturally-shaped lines, and join separated geographically order party, of of voters or the concentrations one other up split or to certain of such concentrations.” they forth in detail what Petitioners set claimed malapportionment to be intentional “The acts of gerrymandering political advantage.” for general, attorney secretary for defendant of attorneys intervening and the for State, defendants, opposed proof vigorously taking have that would 1966] In re 429- op for Remand. Kelly, falsity petitioners’ gerry- the truth establish mandering charge. request present proof by
Petitioners’ this dis- proceedings covery was denied this on January with 14,1965, Justices Dethmers Kelly dissenting to the denial. importance proof
Petitioners stressed the of this a motion for and the reconsideration, order January February 5, on 14,1965, amended read: petitioners’ if to what “Whether, extent, so proof granted proof offer should taken, be may argu- be will be after briefed and decided oral completed ment has been and considered.” emphasize importance Petitioners of this Court recognizing improper claim of their motives and plan, actions those who created the Austin-Kleiner by commencing heading their brief under the “state- ment of facts,” as follows: “By way introduction to facts, this statement of unique proceeding nature of this must be em-
phasized. Despite proceedings the fact that disputed questions raise this fact, Court has not presentation proofs by peti- allowed the offered support allegations. tioners in of their fact There except pleadings. is no proceeding Therefore, record resembles one which a motion sum- mary judgment in favor of the defendants had been granted, and now the most favorable view must be petitioners’ allegations taken of of fact and offer proof. allegations Thus, relevant, where those proof support of fact and the offer of thereof will, purposes regarded actually of this brief, as if proved.” assignment Under this Court’s rotation cases, assigned opinion, I was to write the first which filed my September Associate Justices 22, 1965, *28 Mich by Kelly, J., for Kemand. reported 420,and concurred Justice in 376 Dethmers. why opinion I find no I known could In made this deny why we should merit to defendants’ reasons petitioners’ (cid:127) request to defendants’ and referred (p 437): as follows to avoid the issue efforts petitioners’ spite contentions, “In defendants general only presented this denial. have Court the of defendant and have the brief We searched any intervening defendants vain briefs of petitioners’ specific claim, as the such denial they voting changed planners’ rechanged as use of results boundary in their lines of districts the to the create districts most favorable endeavor to party and its candidates.” Democratic stating petitioners’ request, (p 439): granted deposi- providing that “An issued order will be super- will taken under the direction and tions vision of county presiding judge of circuit Ingham; depositions that said will be taken completion possible on to with- soon and continued hearing delay; depositions copies report of the of such out of the will be filed with clerk on Supreme placed before members Court reach that this can final deter- Court, so unduly impede not mination sufficient time to coming 1966 elections.” support my recom- Unable to obtain sufficient discovery, filed I, 27, 1965, on October mendation my opinion (pp an which I said addendum 440): right duty disagree “I that we have study- dispose discovery question but after realizing
ing opinions served that of the five myself, than date other who have as of this Justices, thought expressed opinions, written three have try reappor- anew to the commissioners should 1966] In re op Opinion by Kelly, J., for Remand. *29 join
lion the 1966 I election, have concluded to understanding expressed with with them the that the immediately commission shall convene and con- shall days clude its work within 90 and that retain we jurisdiction including of all matters now us, before discovery.” the matter of change After the four commissioners refused to 1964 alter was returned to 1966, denied Austin-Kleiner the and the matter January Court, this this on Court Kelly dissenting, Justices Dethmers petitioners’ request. discovery This has not taken a Court favorable view of petitioners’ allegations proof, of fact and offer of proof spite nor have we allowed of this Court’s policy allowing discovery. liberal principles past have acted to "We contra our illustrious our predecessor, as enunciated Justice speaking Wiest, who, for a unanimous Court, stated: right [discovery must assume that “We the taking proof depositions] accorded [by Michigan good citizens] rule is invoked anticipate faith, and we cannot an abuse nor hold possibility of abuse warrants inhibition right.”* rely Supreme Defendants United States Reynolds (84 Sims, Court decision of S v. US 506), giving right 12 L Ct ed 2d them Michigan disregard nothing Constitution, but justify in that United States’ decision would gerrymandering petitioners they prove state can if by allowed Court. opinion Justice states his last that (1) Souris allegations partisan gerrymander-
“Petitioners’ ing in the alternate Austin-Kleiner are unten- (2) able under either Federal or United States “The law”; Supreme Court has from refrained * Fleming (1933), 262Mich v. Nestle Remand. Kelly, presents gerrymandering holding a review- that such question”; (3) “I constitutional Federal
able by petitioners’ argument persuaded am present questions, such Federal nor such do claims regard conclusory allegations petitioners I have adequate legally breaking made our warrant such Answering ground.” new Federal Justice Souris, (376 opinion pages my previous refer Mich at 428): objection (2): [defendants’] Peti “Answer to that if we tioners answer the claim of defendants grant petitioners’ request would running attention we would be out calling States United (1962), fact that Baker v. until Carr *30 (82 629), 369 US L ed 2d claims 671, 186 S Ct 7 legislatures regarding apportionment were of State reading plan justiciable a all; not at that from fair only can conclude that a recent cases7one intentionally operates representation party laws nullify to the fair and effective particular political one of members of protection equal is a much denial as disparate population; grossly districts supreme court, York 15,1965, the New that on March county, NY Petition, in In 45 York re Orans’ New (257 839), by affirmed NY2d 2d 15 Misc 616 NYS2d (258 854), that 206 NE2d held 339 NYS2d gerrymandering a violation of State’s constitutes very provisions, which were similar constitutional argument Michigan’s; that of defendant to ‘The intervening law no there is defendants although suggests against gerrymandering may gerrymandering immoral, unfair, or or a be sharp practice, law which by there is no case nevertheless since says illegal, condoned it should be Michigan people State this Court. higher of law.’ standard to are entitled pass necessary analyze to or for us “It not presence judgment absence of Federal or on the say, gerrymandering. Suffice in re decisions 433 1966] In re op Remand. Kelly, that even decision intimates that is elo Federal there this Court grant petition should not cannot it advisable.” if deem we
Fortson
Wright
"7
Reynolds
v. Rockefeller
v.
Dorsey
v.
Sims
(1965),
(1964),
(1964),
379 US
376 US
As de- upon during cision this has been called to make my years regret- aas I Court Justice, fully petitioners conclude that denied this Court has proof right the important to introduce that would all- rendering proper decision. commission). J. With (for remand O’Hara, my “recorded reluctance” cast vote to order the legislative apportionment adopt publish the Austin-Kleiner alternate “for legislative In the 1964 election.” re Apportionment 373 Mich Legislature-1964, State any opportunity pass an I have had at time upon validity permissible of that standards. now. I constitutional do concur so *31 opinion. with Mr. in Justice Dethmers his petition). (for J. dismissal three On of Souris, expressed prior my I have view that not occasions only apportioning the 80-20 formula for the senate apportioning house, and the formula for .1% appear both of which in article 4 of our Constitution equality 1963, of violate the of Fourteenth clause Amendment of the United States Constitution, as 434 377 Mich Opinion by Souris, J., for Dismissal. of this
majority Court held June of 1964, but also that, except as set forth in the margin,1 none of the first six sections of article said 4 legally survived ruling constitutional In invalidity. See re Apportionment Legislature—1964, State 372 Mich In 418, 461-469; re Legisla State 247, 373 Mich 257-262; Appor ture—1964, tionment State 376 410, Legislature—1965, been, 458-469. It has remains, my view that the of the cited invalidity 4 provisions of article imposed this Court upon provisional for responsibility re apportionment legislative of the State’s power pend enactment of ing legislative or constitutional provi sions for periodic reapportionment in accordance requirements of the Federal equality clause as construed Supreme Court v. Reynolds Sims 377 533 12 L (1964), (84 US S Ct ed 2d 506).2
It
my view in
June
1964 that
this Court
then should
adopted
have
the alternate Austin-
Kleiner
re-
provisional
its own
legislative
elec-
for the 1964
plan to
effective
tions, “leaving
reapportioned
so
legislature
from
for
ernor.
[1]
“See. 2. The senate shall consist of 38 members
a senate and a house of
“Sec. 1. The
four-year
single
[*]
* *
member districts
terms concurrent with the term of office
legislative power
representatives.
at
the same election as
State of
Michigan
to be elected
is vested
governor
gov-
tory
elected for
on a
on the
S Ct
v. Mann
Roman
of
2d
WMCA, Inc.,
decreed
Governor
“See.
the State
In
632) ;
basis
addition to
v.
same
provisional
constitutional
(1964),
Sincock
(1964),
Maryland
12 L
two-year
The house of
population.”
date,
v.
Colorado
Lomenzo,
ed 2d
377 US
377 US
(1964),
Reynolds
reapportionment
terms from
Committee
568)
whieh the
reapportionment
representatives
(1964),
Secretary
vote this power legislative reapportion secretary days State, within 60 thereafter. on-January by report petition filed to this that the commission the Court has advised 4, 1966, again reappor- agree for such on a unable prays entry a further Court of tionment Mich for Dismissal. Souris, join in did not While I Court’s Novem- order. *33 my judgment plan adopted order, because ber judicially provi- our of 1964 was in June decreed reapportionment yet sional because time legislative initiation of a remained for amendment constitutional permanent periodic providing a for valid reapportionment plan, nor did the Chief Justice judgment and Mr. Justice the because in their Smith, petition persuade petitioners failed to them that any provided eighth were entitled to paragraph relief 6 in the they section of article 4, I, to- gether colleagues, with our nonetheless share the responsibility determining what course these proceedings now take. suggested
It been has that the Court’s November predicated upon finding order was that the alter- plan adopted by nate Austin-Kleiner the commission pursuant June, to Court’s 1964 order is not subject provided by par- “final” one to the review agraph of8 section 6 of article 4 and that no “final plan” yet adopted has as been for want of a concur- majority rence aof of the members of the commis- argued, sion. Therefore, it is what the Court’s majority language did in November in was, ** * paragraph 8, to “direct the commission to perform specified [its] paragraph duties”, 5 to be apportion “to district and the senate and house of representatives provisions according to the of this opinion Constitution.” See Mr. Justice Black’s at 376 446, and his current memorandum. having again perform
The to failed hypertechnically such duties thus I construed, would supposed only have that the Court’s constitutional granted powers recourse within the limited paragraph section 6 of article be, would under thereof, to receive from the commissioners whatever proposed plans they care to submit and now to plan complies accurately “determine which most op 1966] by Souris, J., for Dismissal. n with requirements” and direct the constitutional adopted commission. Thereafter, it be upon application supposed further, have would paragraph any pursuant the Court, elector, theory being considered, would consistent per- obliged again to direct the commission to be form its again beginning thus duties, circuitous paragraph paragraph para- passage 7 to from paragraph graph But 5 of section 6. instead theory logical, though pursuing this to its irra- suggested constitutionally that our tional, it is end, interpreted, be duties, even as thus abort- mandated sponte public by entry our order for a sua ed evenly drawing to reduce the divided bi- lots eight partisan an commission of members extra- *34 of seven. commission See Mich constitutional 376 opinion. current Justice Black’s What constitutionally regarded “the exclu- once was as legislative apportion- duty sive of the commission on (see ment” 376 Mich a commission con- 410, 444), prescribed by sisting eight of as members selected continuingly my colleagues regard a valid what as provision of would become article constitutional duty judicially a the seven sired commission final any lacking constitutional sanction whatever. interpretive theory In reads into addition, provisions that there. For are not the Constitution example, accepting argument purposes Justice significance Mich assertion (376 410, 446) Black’s paragraph not refer a in the fact that does to plan authorizing to direct the “final” Court proposed plans adopt one sub commission by a the commissioners after mitted to the Court paragraph 63of deadlock, not sec- commission must shall shall become law 60 as provided by “Each final keep a public law within 30 record of all the days after days publication. proceedings from districting plan date of the of its secretary shall commission and adoption published of State by Souris, for Dismissal. plan (as only
tion 6 be to mean a “final” read that defined ever become law? Justice shall Black) any judicial if submit that there be virtue con- sistency it unless, must be so read we are course, supplement language free to the constitutional adopted provide by any well, “nonfinal” that, upon the commission order the Court shall until also days publication, only become law 60 the paragraph after but Supreme pursuant further action takes any language
8. The absence of in sec- providing suggests tion 6 so to me that intended to draw distinction Justice Black adopted by majority draws between a a of the pursuant prescribed its duties paragraph Supreme 5 and a selected among proposed Court from those the commis- sioners and ordered Court to be adopted by pursuant provi- the commission to the paragraph sions of interpretation Such an section of article 4
needlessly complicates simple language written into requires interpreta- our Constitution, even scrapped present tion of the section be in our continuing voluntary circumstance of failure con- majority upon currence of a of the commissioners plan, interpretation overlooks rational of the section which the minutes Constitutional Con- vention disclose was the intention of the draftsmen themselves.
As I read section and did Constitutional *35 delegates proposed Convention who drafted it, as will be demonstrated, infra, there is no such dis- adopted tinction between a by majority in the first instance a adopted of the commission a upon the commission order of this Court follow- ing a commission deadlock. In each case, the responsible publication shall be for the plan.” and distribution of each paragraph Const art § 1966] re In oe Souris, for Dismissal. plan;
adopted “final” it becomes law 60 a becomes subject days publication; it becomes to an after brought challenge proceedings under elector’s judicial paragraph thereof; review 8 of 6 for section comply upon finding with the that fails to it and, requirements may it re Constitution, for In further action. to the commission manded provides paragraph a that in such addition, Supreme proceeding direct the the Court “shall perform secretary to commission of State the paragraph provision in a inserted duties”, their constitutionally judgment, provide spec my a to procedure judicial in the nature of writ of ified performance enforcing duties mandamus conceivably secretary or the commission of State perform. adamantly might to For refuse otherwise example, secretary might fail or to refuse plan adopted by publish the com distribute a paragraph para pursuant 5 or to either mission Supreme graph event the Court would 7, which Similarly, the commission or him to do if direct so. respond any failed or refused to of members to its secretary convene, to of State’s call it or them so. It stretches would direct to do Court beyond power judicial its mandamus outer suggested suggest, been has boundaries opinion, can that Justice Black’s latest agree upon of “an threat order the commission daily accumulatory contempt bearing an order of until fine each commissioner commission paragraph (of arrives at a ‘final under decision’ 6).” said section Black in con- urges the commissioners Justice the Court find
tempt 2, 1965, order, spite of the fact the Court's November specifically provided: such order commission, continuing “2. In event of another deadlock secretary through 60-day period, expiration of such entry of report promptly petition this Court with time, may, mandatory at choose such further order as the Court *36 Mich 396. 377 Opinion for Dismissal. Souris, by import of This is the clear the constitutional lan-
guage
addition,
the
and,
debates
the constitu-
beyond
delegates
dispute
tional convention
disclose
they
language
that this is what
read the
to mean.
very point
the
Indeed,
was considered and the con-
any plan
vention was
that
which the
assured
Court
adopted
plan adopted by
ordered
would be a
by
commission and,
such,
be reviewable
the Court.
on March 30, 1962,
Consider this discussion
of a
proposed amendment to section 6
article
4:
ment, on
and the second line will be cured
in committee was
this
amendment, which
and reviewable
mission, not
end with a mandamusable
But we want the
shall be
“Now, the committee
“Mr.
Supreme
up
point.
W.
adopted. Perhaps
F. Hanna:
ISo
basis that
by
Court shall determine the
urge
decree
carefully
adoption
the Court. I believe the
preserves
the first
*
[*]
[*]
proposal
defeat
considered to
to be made
the Court,
this is a
body
what we were
line is
of the Nord amend-
is careful to
play
the committee
suable
so
by
accomplish
necessary,
on words.
language
the com-
body,
very
you
say
determined to do; that this Court would not decree
apportionment plan,
but the Court would direct
adopt, leaving
would
position
in a
to review the
not of
their own decree, but to
an
review action taken
Soap Co.,
a commission Convention 1961, Constitutional Official Court.” p Eecord, *37 rejected Delegate The amend- convention Nord’s ment. April again during the debates of arose issue 1962: my Judge President, Dehnke, “Mr. Mr. Norris: question In of the fact that one of the was: view apportionment an review which to make reasons for available commission is present had not been thus specific
far in a fashion, is it the mandamusable apportionment provision intent of this under the language proposal provide contained in the upon qualified petition a review the of the plan apportionment adopted by electorate of the apportionment the commission? speaks language I think the “Mr. Dehnke: upon may review, The Court Dr. Norris. itself, plan adopted by petition, the commis a final such sion amending if it fails and make orders comply requirements of the Constitution. if it with may safely Court, that we assume I think any will them in conform amendments, make makes requirements ity of the Constitution—the to the specifications, in other words.5 question, My President, Mr. “Mr. Norris: second regard Judge that situation Dehnke, is among disagreement prevails when there IDo of the commission. members language in view of that here, understand then the contingency, suggestive various that the of this: the convention was except amending 2800. The former Convention Constitution”. As of requirements to the commission for sueh April instead plan if 2 Constitutional 25, 1962, Official of this language substantially it fails to providing Record, pp the draft of seetion Constitution,” further action comply Convention finally adopted, the same as that 3103, 3104, 3238, 3275. the Court with the it read “shall if it fails to boing requirements of this see Constitutional “shall Official finally adopted, considered remand such make orders eomply with Record, p 377 by Soukis, J., for Dismissal. apportionment commission then of tbe sub-
members appraisal respective plans mit their to the Court for nearly of the most accordance with the constitutional standards and the Court then issues an order?
“Mr. The Court then what? Dehnhe: “Mr. Norris: Issues an order. “Mr. Dehnhe: The Court which of determines plans complies accurately require- most with the
ments of the Constitution and returns it commission for the order to be made commis- according language proposal. sion, to the
“Mr. Norris: It comes back then to the commis- sion? subject
“Mr. Dehnhe: Yes. The commission is comply to mandamus action the Court if it fails to * * * with the order of the Court. “Mr. W. F. Hanna: Mr. Dr. Norris, President and *38 amplify Judge I’d like to further Dehnke’s answer you. to made it We in this manner that and directed so deliber- ately, gave opinion after the Court its appealable the commission, the order became back proper. to the Court if an elector felt that it was not If leave it we to the Court to in order, then, effect, appeal there is no but to the Federal courts. We the wanted commission enter to the order that so appealable by it become did back to the Court this elector.” 2 Constitutional Convention 1961, Official pp 2802, 2803. Record, passage just quoted,
It should noted that the in affirming plan addition to that a which the Court adopt orders the commission a “final” to is paragraph reviewable the Court under 8 of sec- explains meaning language tion also the of that paragraph provides upon proper in 8 which application of an elector the direct the Court “shall perform secretary of to commission or the Judge clear, the their duties”. As Dehnke makes delegates which the com- a in .conceivedof situation 1966] In re op Souris, for Dismissal. obey might an order the Court refuse to
mission plan. adopt directing a certain it to upon application of an the elector, event, In that nature of writ an order in the issue would Court of perform directing to the commission mandamus adopt duty, namely, ordered the to its Court. apportionment plan which that an conclusion, adopt final is a the commission orders
the Court plan paragraph 8 of section is under reviewable imperative logically 6. The context of section amply demonstrates such record convention express implements intent of dele conclusion reading only suggested Finally, gates. other unnecessary language involves one 6’s section practical illogical which have dis difficulties duty In such circumstances our is above. cussed written, it Constitution, follow the is clear: as and as delegates expressly it to be followed, intended logic every of common sense dictate alternate that the Austin demands. This means adopted plan, commission June Kleiner a final Court, order of this under pursuant paragraph reviewable Court 6 of article of the Constitution.6 section reference to political parties in accordance with review is thusly: vention review remand it to with the 2 Constitutional compel In the address “The “1. Nothing “Upon In the Preface to the Address to the Establishment significant the any plan adopted by requirements provided the startling legislative apportionment: performance Official the commission for further action application Convention *39 itself, decisions on this requirements reapportion Record, of a is the event of revealed section 6 of duties the Constitution.” pp any 3371, the periodically Official by is disagreement highly imposed elector the Constitution. these diseussed, equally Record, p controversial People, the explanations in this section and house representing Supreme as is if of the commission.” Constitutional Con- it fails to commission and pertinent here, subject are— senate seats stated, because the Court comply major may may 377 Souris,
Opinion by J., for Dismissal. I proceeding While continué to believe that this regarded invoking general should he one our equitable provide power by judicial decree an provisional legislative reapportionment plan other year adoption statutory or for the 1966 until of valid providing periodic constitutional enactments legislative reapportionment (376 469), Mich 410, unfortunately colleagues my my none of shares view. plan yet Nor do I share the view that no “final” has adopted and, been therefore, that this Court cannot purview paragraph any plan review, within the plan, by until such “final” as defined Justice Black, adopted by if only is, ever, the commission. The practical perceive alternative I I is that which have adopted opinion inviting this the interest of accord—considering- decretal section of article 4 continuing validity constitutional and constru ing provisions put I its as have. Thus, have aside, expressed at awhile, least for views I have persuasive repeatedly, hut without success. There only the remains, me, the review of alternate plan7 required Austin-Kleiner of this Court now paragraph 8 construed. section thus Justice with the con- whom Chief Justice Smith, proceedings November, curred last considered these require proceeded do so. then such review and clear, comport language explanations constitutional with the itself and tlie supra. meaning developed, language as it been has paragraph petitioners’ 7 In 3 of “Amended Petition for Review of Plan”, jurisdiction is invoked quotation signifi paragraph 8 of section with one clause direct cantly deleted therefrom: application days “Upon any later than 60 elector filed not Court, plan, publication final after of the exercise' * * * original may any plan adopted jurisdiction, review final commission, and shall remand such to the commission for comply requirements if of this further Constitution.” action it fails significantly petitioners themselves, of The clause deleted secretary of State or commission to course “shall direct perforin their duties.” *40 1966] In re op 445 J., for Dismissal. Souris, join 376 Mich 470. I now in the views the expressed. Chief Justice and then Justice Smith agree following Specifically, I with the italicized finding's then made them: allegations partisan gerry 1. Petitioners’ mandering in the alternate Austin-Kleiner are untenable under Justice Smith either Federal State law. As although presented
observed, with opportunities Supreme so, to do the United States holding gerry Court has from refrained such mandering presents a reviewable Federal constitu question. tional Indeed, the latest case in which presented Supreme such claim Court, was to the squarely, opinion, Supreme affirmed, Court but without judgment
the district court’s in which such rejected. WMCA, claim Inc., v. See Lomenzo (1965), (86 2). 382 4 US S Ct 15 L ed 2d suggest I do not "While that this Court would be considering barred from such until the claims United affirmatively States declares them present justiciable questions, per Federal am not by petitioners’ argument suaded that such claims present questions, regard such Federal nor Ido conclusory allegations petitioners legally have made adequate ground. breaking to warrant such our new Federal concerning right
No such doubt exists prescribe, by State ally apportionment constitutional or constitution- permitted legislative enactment, standards prohibit designed gerry- such mandering. Reynolds supra, Sims, See v. 377 US difficulty petitioners’ But the (1) law claim is threefold: Some have us found (376 470) Mich 410,458, that none of standards such contained in 4 of article the Constitution of 1963 was severable from the invalid house senate Reporter. Affirming WMCA, Inc., v. Lomenzo (SD NY), F Supp 916.— Sonáis, for Dismissal. Opinion they, like lienee, and, formulae constitu valid State Absent were invalid.
wise, preclude designed legislative standards tional or apportionment scheme a rational distortion *41 gerrymandering, in partisan wrote Justice Smith as province to Court Whether not the November, is (2) 4 such article standards. write into provision, required by the valid not constitutional or Chief and Justice and Justices Adams Smith, Black, 251), ago (373 year Mich and last June held, I plan, agree alternate now, that the Austin-Kleiner adopted by by to the the Court be then ordered compact, contigu districts commission, formed “as “county, regular shape” and and followed ous, prac township nearly city, boundaries are Mich ticable.” very Those the See petitioners alleged in this State standards9 by partisan purposes proceeding were violated plan. (3) if Even we the alternate Austin-Kleiner partisan pleaded allegations assume that well gerrymandering justiciable would raise a issue equality own under our State Constitution’s clauses (article 2), regard petitioners’ § §1, 1 I do upon allegations legally to a claim sufficient state judicial inquiry I can made. As view the which complaint proof”, “offer and their icetitioners’ they conclusory solely allegations consist sus speculation only picion supported by reference according them, which, to election results were by by partisan gerrymandering achieved plan. petitioners alternate Austin-Kleiner While support they permitted assert could their claims if invalid. ment formula which which multiple county representative boundary adhere to I find no deals with not breaehed. lines be county oontinuingly lines all members of allocation of found in the valid areas requirement representatives by Court application of only provision last paragraph agree article constitutionally 4 that that districts house within of section 3 apportion- county 1966] oe Souris, for Dismissal. they discovery, process engage failed have in a proof their within an offer of facts
to submit power distinguished from facts to establish as hope they discover. June, 2. Our orders of 247, 248, (373 concepts process. no violated due While
249), existing practical proc- election facts of the then required prompt action this Court ess timetable and following long awaited the commission of the United States decisions jReynolds accompanying Sims, cases, v. its something agree that it is less with Justice Smith argument process plant a due than candor days elapsed only between five assertion Reynolds this Court v. Sims and the decision ordering approval of the alternate plan. Justice Smith in November Austin-Kleiner accurately stated the facts that the commission had many Reynolds it for months before v. Sims before reapportionment
plans
upon
equal
based
districts of
hearings
population,
lasting two full
that extended
explored
days
population criteria
before this Court
represen-
reapportionment purposes,
a
for
and
to
that the commission
tation
made
this Court
plans
population
in 24
other
based
could furnish
if desired. 376 Mich
hours
added.
60 more
Now,
One additional fact must be
produce
days
granted
have been
the commission
plans,
population
according additional
such
majority
a
of this
in November
criteria
Court said
yet
agreement
no
ascertainable,
were now
thereon was
and
by majority
reached
a
of the commis-
popu-
plans assertedly favoring
other
sion. While
plans
one
such
has
lation criteria were drawn and
been offered
of
Court,
for consideration
this
about
opinion,
say
in
more to
later
this
which shall have
days
point
now,
the
after 60 more
of deliber-
process
petitioners’
due
commission,
ation
448
Opinion by Souris, for Dismissal. argument longer no has even a colorable basis its assertion. plan complies
3. The alternate Austin-Kleiner requirements equality with the the Federal clause of requirements as those have been construed Reynolds United States Court in v. Sims arguendo, and, assume, that the 1963 Consti if ive compactness, contiguity, tution’s standards regularity city, and of shape conformity county,10 and township boundaries survived the con infirmity reapportionment stitutional form ulae, the with those State standards, conformed as well. During proceedings course these before parties brought Court, hereto to the atten tion of the Court the fact that an error in exists house districts No. 87 and No. 88 of the alternate Austin-Kleiner as ordered this Court to be adopted by the June of 1964. The variously error, described as mathematical error error, as mechanical can and, be corrected my judgment, margin. be, should as indicated in the 11 9, 446, supra. p See footnote 87, consisting county, House district of all of Shiawassee county DeWitt, townships from Clinton Watertown, Bath, Victor, Olive, Duplain. 71,564. Population: description changed except house district need not be population, its statement of the district’s which should be increased 71,851. made, population disparities With this correction the alternate Austin-Kleiner set forth the Chief Justice’s opinion Legislature—1964, in In re 252, 253, at are correct. descriptions they appear of house districts and 88 as [The 1964, p 616, revised, PA would then read as folloivs: County; 87. All County townships Shiawassee from Clinton *43 Bath, DeWitt, Olivo, Victor, Duplain, and Watertown. County township Prom Eaton city of Oneida and the Ledge; County townships Bengal, Grand from Bingham, Clinton Dallas, Eagle, Essex, Greenbush, Lebanon, Ovid, Riley, Westphalia, and city Johns; County; and the County St. all of Gratiot from Midland townships Edenville, Genova, Greendale, Jasper, Lee, Porter, city and Warren and the Coleman.—Reporter.] 1966] In re oe Opinion by Souris, for Dismissal. members this Court,
Six Chief Justice and I, Justices and Adams and Black, Smith, O’Hara expressly June of held that the alternate plan complied requirements Austin-Kleiner with the equality of the Federal clause. Mich 250, See 373 257. The and Chief Justice and Justices plan’s and Adams also found that the Smith, Black, compact, contiguous, regular districts were shape and county, city, township followed and nearly practicable, subject, as boundaries course, controlling Federal to the constitutional objective population equality. of substantial See join finding, 373 Mich 251. I now them in this noting finding I do that a relative one requires judgment which on how far one can or go population subordinating equality should requirements of the Federal Constitution to other reapportioning legislative considerations power my judgment, of a State. It is itas was the Chief Justice’s and Justices Smith’s, Black’s, Adams’, that the alternate Austin-Kleiner did population equality not so debase in favor of district shape boundary form and adherence lines that it violated constitutional limits. anyone suggest
Nor does it does. What is said, plans instead, is that other now devised reduce even plan’s dispari- the alternate Austin-Kleiner minor point vanishing by minimizing ties almost to1 shape concern for district and form and adherence boundary (for example, to plan lines senate and house Searchlight
No. 7, the so-called Civic
rejected by
the commission considered and
a vote
1)
per
by enhancing
contra,
of 7
and,
concern for
shape,
boundaries,
form,
the alternate Austin-
plan’s
population disparities
Kleiner
minor
need be
multiplied less than
twice
the house and multi-
*44
plied eightfold (proposed only in the senate senate plan and house No. 5)! plans proponents new
What these two plan overlook is that alternate Austin-Kleiner already adjudicated comply with Federal has been any and, constitutional standards if standards State compliance survive, to be substantial with them justify as well. To this Court’s abandonment of a reapportionment districting plan adopted upon pursuant order this Court’s to which the State’s present legislature require been elected, has would persuasion prior adjudication that our of constitu- tionality persuaded erroneous. have not been that it was. challenge against
The thrust of the the alternate plan accomplishes greater Austin-Kleiner that it is equality equality than the Federal Constitution’s requires expense surviving clause at the possible nobody standards. It claim, requirements equality population does, that the and all of the State standards claimed to survive can equality approached, met. boundary If some lines must be breached and some districts must be irregularly shaped. The alternate Austin-Kleiner plan approaches haps population equality, per- absolute any reapportionment plan
more than so other Necessarily, States, United to date. some boundary lines were breached, 18 out the State’s 83 counties’ lines the senate and 32 in the house. preeminence equality However, requirements, of the Federal clause legal pre-
in our scheme of values, any finding cludes this Court of constitutional infirmity in the alternate Austin-Kleiner ground equality equally that it renders too at expense of subordinate State standards. only
The other offered this Court for its consideration is the so-called senate and house 1966] oe Sotrais, for Dismissal. boundary county plan, lines in that Even 5.12
No. proposed districts senate are breached proposed. cost, terms the house districts reducing population, equality the number of suggested boundary county is, breached lines Population minimal. less than somewhat above, disparities almost doubled over in the house are *45 plan while under the alternate Austin-Kleiner those in the Senate magnified eight disparities are those fold. compare help may this what
It be of some proceeding it in- not involve with what does does determining whether volve. It proposed not involve our does senate pass plan would and house No. 5 were if it alone offered constitutional muster districting plan replace apportionment de- an and constitutionally invalid. Neither does to be clared it making proposed our a choice between involve plan 5 and the alternate senate and house No. replacement existing plan of an Austin-Kleiner districting plan be declared to constitutionally making Nor does it involve invalid. plan re- a valid a choice between markable achieves proposed plan equality population greater to a extent which overriding much subordinates requirements Federal constitutional alleged requirements. equality in favor proceeding above, I have this in- Instead, as stated only our review of the alternate Austin- volves allegations in the face of it fails Kleiner to requirements comply and such constitutional allegations I found to be without merit. have my foregoing considered,
All of the announce my colleagues join affirming again, readiness paragraph upon time review under 8 of this section posed to this Court rejected by Senate and House a 7 by any 1 vote of the commissioners. No. of the commission the so-ealled Civic has Searchlight been plan, pro- Mich J., for Dismissal.
Opinion by Souris, legis- alternate Austin-Kleiner 6, that the apportionment, corrected, herein meets all lative requirements constitutional Federal and State legis- decreeing that it shall he followed held in the fall of scheduled to be lative elections reappor- next until the decennial 1966and thereafter provided 6 of article 4 section tionment said provided by may valid untií other time as be such amendment. constitutional attain it now, we should Whatever result crystal that constitutional to all who will to see clear imperative. further demonstra- amendment is No necessary neither a tion of the fact that commis- legislative apportionment, the members sion on major political parties designated which are of the nor in the exercise State, Court, of this imposed upon unwisely responsibilities article people voting majority function as the can upon adoption of 1963 errone- the Constitution ously possible. change is believed Constitutional *46 becoming imperative rapidly and time of the is repetition is if our current difficulties essence be avoided hereafter. to accomplish three
The order of this Court should things, my alternate Austin- First, in view: plan adopted, cor- Kleiner heretofore should as be above. Second, rected as indicated footnote 11 plan, the alternate so corrected, Austin-Kleiner as comply with Federal be held to all and State should requirements therefore, and, constitutional should be decreed to be followed elections and reapportionment thereafter next until the decennial may required by or as othei’wise be constitutional petition amendment. herein Third, should be question public without a dismissed, but costs, importance being involved. Apportionment
Í966] oe petition). agree (for with dismissal Adams, J. (1) alternate Austin- that: Justice Souris adopted 1964 a final in June of is Kleiner paragraph 6 of article of section under reviewable allega- (2) petitioners’ Constitution; the 1963 4 of legal gerry- claim are insufficient state tions below); petitioners (3) mandering (see have been (4) process; the alternate Austin- due afforded requirements plan complies the Fed- Kleiner petitioners (5) equality have failed to clause; eral plead it be found that the facts from which could in such violation alternate Austin-Kleiner is Michigan require as to Constitution vacated. regard allegations (5) that certain above, With compact “are neither nor conven- senate districts rectangular shape possible”, not “are as as ient”, city not follow or that certain house districts “do township applicable”, or “are not boundaries where shape nearly square possible” are conclu- of fact. It not too difficult sions, statements is compact, shape square, rectangular single jigsaw Michigan’s two district. The arises from peninsulas 3,000 with their of shoreline some miles of which must be created 110 house out districts to over- (1) and 38 senate districts that conform riding (2) legitimate Federal standards, standards. State 60-day recent remand to possible that it to come demonstrates plans,
up apparently with numerous all have merit. Because of nature of Federal some there never standards, however, constitutional conformity full As noted with State standards. Inin re *47 Legislature—1964, Mich 250, 373 253: [Mat. 3'll Dismissal. Adams, and of manifest neces degree, “All to some plans city township or county, recross cross sity, lines.”* adopted, been finally once a has
Consequently, been, for has as the alternate Austin-Kleiner must be be attacked there successfully its validity standards. from State substantial plead departure here. That has been done not that dis- failed to Petitioners have demonstrate All of to this case. covery appropriate would apportionment proceedings The of the figures are records. official open, public precincts, political election census, United States of which boundaries, are matters and geographic motivations, The judicial takes notice. this Court commissioners, and machinations of the cogitations Only if would not be relevant. discoverable, even subject to review. plan is petition). dismissal This a (for J. Smith, proceedings begun continuation of apportionment adoption Michigan occasioned by 1, 1964). January of 1963 (effective Constitution law, containing new new fundamental This formulae, adopted legislative apportionment v. Sims Reynolds (1964), the decision in before L The 506). ed decision (84 1362, 12 Ct 2d US S it did after had Reynolds, coming proceedings Michigan Constitution, under commenced been Inasmuch upon processes. effect our profound had Reynolds effectively struck Michigan from the provisions, significant Constitution an only reflects long, proceeding continuous * disparity population Plan a house existing had Austin-Kleiner 3,082 largest and breached 32 and smallest districts between county population had Michigan lines. Its senate dis- out of 2,027 eounty parity 18 of the lines. breached disparity 16,590, population No. 5 resulted a senate Plan eounty lines, population disparity breaching 3 and a house while breaching eounty 5,620, while lines. *48 1966] op Legislature. Apportionment In re J. Smith, for Dismissal.
Opinion by
legislative
part
attempt
apportionment
the commission
on the
Michigan
follow
and this Court to
adjust
provisions, hut, also, such
constitutional
Reynolds
impact
provisions
of the
Case. See
to the
Apportionment
State
In re
Legislature—1964,
Apportionment
In
418, also,
re
State
372 Mich
and,
Mich
In re
also,
Legislature—1964,
Apportionment
373Mich
State
Legislature—1964,
Apportionment
State
Likewise,
see
here joined. However, Justice in which Chief proceeding to a and due terminal to a historic regions distressing of this in some inclination (373 away the vitals the 6-2 decision to cut 250) establishing present apportionment, a move unwittingly might to divert have been made which the matter to another moved to record we are forum, may for all who facts and comments additional some follow. 5-3, with the writer November, a vote of
Last remanded dissent, this Court 1 of Justices “pro- to the the cause deliberations as will with such work and anew ceed apportion district and the commission to enable according representatives and house of senate applicable requirements as well as now ascertainable Michigan Constitution Federal (Em- page 376 Mich at Constitution.” supplied.) phasis “ascertainable as well
Comment: What these
majority
not
applicable requirements”
did
are
Mic.hi 396.
for Dismissal.
by Smith,
OiJinion
say.
however, tried
cure this
Justice
Black,
opinion,
deficiency by as will be noted below.
solo
Those of who dissented from the order did
us
so
only
majority
the order of the
because
did not
appear to be
consonant
some of the views
expressed by majority
their individ-
Justices
opinions preceding
ual
the order, but also “for the
requires
majority’s
reason that the
order
the com-
*49
reapportionment
a
mission to devise
legislative power in accordance with
not
standards
any
opinions
signed
defined in
1
the 4
majority
the aforesaid
of five Justices of the Court.”
Although
any
there is no record of
official com-
apportionment
munication between the
between
this Court
November 2d and November
gleaned
20, 1965, Justice Black
from
which
sources
appor-
reveal,
he
not
that some
did
members of the
expressed,
early
tionment commission had
deliberations,
in their
part
a failure
on the
of the Court
majority
provide expected 'guidelines’
“to
”. He,
opinion
therefore, issued solo
directed at the com-
appears
mission
November
which
at
In it,
As to such any say 457): (p rate, “At it seems clear that a political gerrymandering, may forbid and I op 1966] Dismissal. Smith, Constitu- Michigan the provisions interpret compactness, shape, cetera, et regard with tion purpose. Though for that precisely being be fol- are and must overriding Federal standards reason the standards why provi- see no lowed, should also in our own State Constitution sions I do not if it do so. possible regard is applied formula having destroyed of the 80-20 the failure (Emphasis supplied.) the standards.” approach difficulty Comment: The this First, appor readily apparent. guidelines house and senate contained tionment scheme for Constitution 1963 Michigan article far “compact complex requirements more ness, than the et cetera.” the senate shape, Keystone of as contained in section said article ivas formula weight provision gave the so-called to 80-20 80% con to land area. population Everyone 20% v. by Reynolds Sims, cedes was outlawed We Based supra. carry analysis upon further. computation the 80-20 was a which resulted formula having the State as whole For apportionment counties purposes, “factors.” *50 then required were to be based upon classified or whether not a particular county had less than or apportionment more than 13 apportion factors ment 4, 2,§ See article Constitu Michigan factors. Then, tion to this constitutional according of formula, equal “the method proportions [was of applied to the apportionment be] a After factors.” seats, provision upon allocation senate based of determinations, such then re then did the only “compactness, cetera”, et quirements shape, of use Justice Adams’ The phrase, play. come into counties quoted provided section as “Such follows: shall be districts arranged into senatorial thereafter that land, compact, convenient, contiguous by are having rectangular as shape possible, as but nearly possible apportionment factors, Mich for Dismissal. Smith, in 4, 2, than 10 than 16.” no event or more Article less § supra. apportion- quotation senate above the from ment point the demonstrate formula itself sufficient opinion my I tried to make last of (376 470) very Mich November that at the heart of provision. the senate was the 80-20 so-called formula provision When the 80-20 stmock was down Reynolds with it supra, Sims, then v. the ivholeformula fell unseverability interdepend- the because of of provisions. Extracting ent 80-20 factor from apportionment pulling the senate was like formula keystone building the structure crumbled. a arch: the whole from may The same said of representatives the house contained formula for of § keystone in 3 4. There, article that of of for- per moiety Although mula was the .7 that section cent clause. commands “The districts shall con- compact territory contiguous sist and convenient of equally land”, it is clear that this command per necessarily upon dependent moiety .7 cent language expresses clause. The command: “Each the section this of county population which has percent not less than one seven-tenths of of of population separate the State shall constitute a of representative county having area. Each less than percent population one seven-tenths county State shall be with another combined representative counties to area not less form percent than population seven-tenths one § the State.” Const 1963, art 4, 3. It is likewise parties per moiety conceded all .7 cent by Reynolds clause ivas also v. Sims. It is felled provi- also clear key that the manner in which this employed sion the house section formula subject ruling made it severability to the same already expressed by (376 470.) me. point We come, therefore, in narrative to the last majority November when the Court *51 decided to op 1966] for Dismissal. Opinion by Smith, commission apportionment the matter to the remand then and even It clear proceedings. for further to be an destined now that this was more clear futility. exercise in deacl- prime reason the The Comment: futile evident apportionment occurred was
loclc which in place took ivhich proceedings commission desig- constitutionally the prime cause lies with apportionment com- nated method selection the commissioners are selected missioners. Such number and political major parties equal from in the Consti- set specified geographical areas forth unspoken an is thus Responsibility party tution. but why reason The second consideration. primary stale- predictably the apportionment the part mated was due failure precision measure to state with a majority (to %vay portions what unsevered follow Michigan Constitution their logic order) that acknowledging should be while applied, SO- no per cent clause moiety the .7 provision SO governed. longer in the respect colleagues all my With due earnest shared majority, my they belief situation is that a erroneous view remand remand akin to the traditional something a loiver court the ascertainment Court to and the of facts pertinent legal discovery application Again, too much. asking This was principles. honorable eight gentlemen all due to the respect labored so commission* who develop in both diligently might agree, suggest ive upon majority lawyer kegon), Alfred certified Kleiner representative; Democratic members: [*] Republican O. LaPorte lawyer; Ralph (Grand publie former Governor of members: Rapids), Henry accountant; (Standish), Huhtala J. lawyer. Coehairman Dongvillo Coehairman Wilber Ivan Brown (Kingsford), public insurance and real estate broker. Michigan; (Scottville), Richard H. Austin William F. Hanna (Iron Mountain), M. Brueker farmer; A. Robert relations (Detroit), (Detroit), director; (Mus- labor *52 Smith, J., by for Dismissal. Opinion bore gentleman that each responsibility party the his made this by party appointment virtue his by of prac- and, analysis, in the task a very final difficult one good party What impossible. tically for by Commissioners chosen other. bad the often for pro- alone, purifying the without
political parties be non- expected are approval, voter cedure of expect so much. realist would ever political. No Constitu- provided What have been the might been accom- tie-breaker. This could have tion is a simple give a amendment which would plished by a vote case the the secretary only the commissioners deadlocked. State of reason, The and ice reason, alluding to this is because the only for is, Constitution, the secretary secretary of is, course, secretary elections State. chief officer of State, therefore, bring proceedings could to such a certain amount skill election matters. report come review of commis- We now sion after remand proceedings of the official majority. apportion- All files plans, ment commission census including maps, data, and are (electronically debates recorded) before This at our properly accomplished us. motion January 12, conference on and order I of this Court. have at length reviewed the records commission, and files of the including recorded debates, thoroughly am with the impressed competence care and which each com- extraordinary deliberations. brought missioner to the things one, Comment: Two are that quite clear: severely commissioners were handicapped by lack statement this Court as to definitive from standards, opinion what re- majority, applied; two, mained to be the broad principle representation, equal “as nearly ivhen practicable”, specific per- unaccompanied 1966] oe liy for Dismissal. Smith, antigerrymandering standards, makes missible way possibilities house in the and senate infinite may that each set witness formed; districts pro- using partisans, criteria, the same broad lohile quite unsatisfactory plans to each were duced Although partisanship was disavowed other. paPorte can- commissioners, Commissioner several honestly acknowledged following: didly “I feel proposed every side, other on the amendment honestly talking myself, feel, I had how am *53 your political And, involved. as considerations own say probably concerned, 1 that as would far is true.” reverse apportionment
The shows that the record commis- 12th, 19th, in formal sessions on November sion met 3d, 10th, 16th, 17th, 22d, 23d, December 24th, and year 31st, A num- in the of course. 29th, 30th, plans and amendments were ber but introduced the various commissioners none support majority a was muster the able to eight The started commissioners. commissioners meeting disagreeing 12th out in their November principle plans in as to how new were formu- to be Republican urged lated. The that commissioners predetermined drawn on the districts be ratio of the basis largest district; district to the smallest pointed Sincock, members to Roman v. Democratic (84 620), 12 L ed 377 US S Ct 2d any approach ap- holding that mechanical to such portionment The is unconstitutional. Democratic population commissioners insisted over- riding any plan guideline, acknowledging while political ought few subdivision to cross as bound- composition possible and also that district aries as ought compact regular shape to be as and as possible. 377 Dismissal. Smith, however,
Despite disagreement, respective partisans started, in earlier commission sessions, develop present plans which followed' the broad supra. Reynolds Sims, principle v. Both sets of partisans plans submitted which to some degree sought improve upon Austin-Kleiner existing plan alternate already effect. None, however, was able achieve the desired majority vote, an even amendment to cure mechanical designed error computation population existing house of representative districts 87 and No. No. 88. Republican members of commission then position returned their of advocating a formula with a predetermined ratio of maximum variation between the smallest and districts. largest They introduced the so-called “5 which is plan”, officially % labelled plan senate No. Michigan Michigan 5 and plan house No. 5. Both house and senate plans sub- reduce stantially county the number of lines crossed while substantially dis- increasing population parities between districts, compared with the Austin-Kleiner alternate now in effect. The Democratic members commission then coun- tered senate No. 6 and house No. *54 a which had predetermined ratio de- population viation amounting plan No Although 6 was 15%. introduced Democratic for members discussion purposes, was not the supported by votes of the Democratic labelled it membership. They unconsti- tutional, to the wide pointing population disparities They say between districts. the plan was what offered show could be merely done if with the predetermined ratio was used purpose the maintaining lines as county boundary prime of the 83 plan In senate No. none object. county breached, was the house boundary lines plan three out of 83 lines were only county breached. 1966] In re oe Smith, for Dismissal. plan Republican
Compared
No. 5, this
said
with
was
big improvement.
abe
game
parry
The
thrust and
was
Comment:
underway.
secretary
reported
the
Even after
of State had
to the Court that the
commissioners
agree upon plan,
Democratic
unable to
Com-
were
missioners
Dongvillo
the
Brown and
countered
plan
plan
Republican
with a
of their own
5%
5%
county line in the
one fewer
senate
which crossed
formula and
plan.
two fewer lines in the house
using
clearly apparent
then
It was
Comment:
partisan possibilities are numerous.
criteria,
broad
appor-
proceedings
Returning
at
to the
the
now
2d
between November
tionment commission level
and December
plan
presented a
also
there was
plan
Brucker identified as
Commissioner
an
the
No.
introduced at
instance
7, which was
Searchlight
organization
the
known as
Civic
improved
plan
upon
present
Detroit
minimizing population
varia-
further
somewhat
far
but the
breached
districts,
between
tions
existing
county
Austin-
lines than does
more
plan,
severely
dis-
alternate
scrambled
Kleiner
metropolitan
suggested
It
areas.
in the
tricts
partisan
had
motivation.
that the
also
great
The writer
reviewed with
Comment:
has
offerings
on
com-
and the deliberations
care
pre-
general
recitation
remand.
mission
along
immediately
debates
above,
sented
tapes,
clearly
most
on electronic
recorded
reflect
rewriting
apportion-
a constitutional
need
with the
and senate
ment
both house
formula
Reynolds
principle
v. Sims
one-man one-vote
the
partisan political
atmosphere
surcharged
keystone.
In
process;
evidently
ufhat most
*55
Mich by Smith, J., for Dismissal.
al
with reasonable specificity,
is a
needed
formula
in
what Commissioner
Ilanna
lowing
refers
“limited
commission as
discretion”
debates
“limited
body.
This
discretion”
apportioning
accomplished
apportion
into the
by writing
could
“anti-
ment
what has been
to as
referred
formula
standards”
as well as other
gerrymandering
provi
Hotvever,
election convenience.
sions
is to be
understood
clearly
provi
no such standards
sions could be
man
substantial
derogation
one-
principle.
one-vote
See
discussion of
Reynolds
supra,
Sims,
permissible
deviation
v.
Reynolds
and the discussion
in my opinion
last
November,
members on of deadlock”, in which said mem- support bers reiterated their and blamed 5% *56 oe 1966] by Opinion Smith, J., for Dismissal. agree- failing Democratic to reach
the members plan. ment on a reply by January a Democratic
2. 1966: com- why giving the their mission members version agree, including item-by- an commission failed compromises opposi- item enumeration of offered asked that the tion members. electors’ commissioners Said petition be dismissed. January on 10, 1966, a brief filed behalf of
3. was insisting intervening al., Seholle, defendants et plan Republican commis- the 5 offered % arbitrary it sioners unconstitutional because is and formula, also insofar as uses mechanical population disparities that the are excessive. The alleged attempted brief then plan to show that the gerrymandered. was Republican January of the
4. members apportionment to the commission filed an answer previously Democratic “statement” members charge bad faith The denied the filed. statement only they pointed submitted out that not had and a they boundary crossings but that with minimum plans, sessions, had earlier also submitted principle population which came closer to the existing equality plan. It reiterat- than does present plan at three districts has least ed that the badly gerrymandered. are special January 1966, the Court met in 5. finally peti- majority denied vote conference argu- discovery request for oral tioners’ secretary up from we ordered ment; also, “proceedings and records all office State’s of the commission apportionment.” legislative day, significant vote most in the Then present Austin-Kleiner that the made motion was following unconstitutional. be declared day: quotation minutes from Court a direct Mich 396. Smith, for Dismissal. supported Justice made “Motion was O’IIaba, bold the Austin- that the Court by Justice Dethmers, offensive plan unconstitutional Kleiner T. M. Nays: Chief Justice Constitution. Kavanagh and and and Justices Black, Smith, Adams, Yeas: [Justices] Dethmers, O’Hara, Souris. Kelly. Motion not carried.” statement, In an January 14, amended commissioners the Democratic 5 was Republican-offered No charged badly gerrymandered and offered such “distorted *57 a district an “arrow- shapes” “boot-shaped” line” shaped” “angleworm district and an dividing- one of the counties. The statement made the asser- tion that the Republican were attempting members an “even partisan advantage.” gain greater
7. A January 15, 1966. brief filed on behalf was al., et petitioners the Badgley, replying- brief of intervening defendants Scholle, et al. brief This the followed basic position of Republican the com- missioners by pointing to number of apportionment cases throughout the in country which disparities not exceeding been had court-approved. Fur- 5% the brief ther, urged adoption Republican the plan sponsored No and in the alternative asked the Court one of adopt some the plans other be- it in the fore place of the existing plan petitioners first attacked instance.
8. January 19, 1966. The Republican apportion- ment commission members replied to the “amended statement” of the Democratic commissioners in which they denied that No. plan 5 was gerrymandered for partisan or that advantage their No. plan 5, the so- called plan, contained mechanical standard “5%” of population inequality.
9. January. 21, 1966. Democratic apportionment commissioners Brown and Dongvillo offered a Demo- cratic version of a plan, which they alleged 5% 1966] In re oe by Smith, , for Dismissal. plan gerrymandered Republican
that the was 5% They plan not. the Democratic was but that 5% plan, adopt their did ask the Court to but 5% simply improvement an over the said that was Republican plan. 5°/o intervening January 28,
10. 1966. The defend- reply ants filed a in which it insisted that the brief Republican plan clearly obviously was 5% partisan advantage gerrymandered sought to analysis proposition a brief demonstrate this plan. They some included said districts validity existing asked that we reaffirm legislature plan 1964. was elected in under which February rejoinder A was filed 1,1966. brief countering Badgley, petitioners al., et in behalf certain assertions made reply of inter- brief rejoinder vening reiterated brief defendants. support Republican and in the 5% Democratic offered Com- alternative the 5% Dongvillo. missioners Brown and February Republican apportionment 1, 1966. filed an answer to the and Brown and statement commissioners offering of Democratic Commissioners They pointed Dongvillo. that the Democratic out submitted to never *58 adjourn- prior 31, 1965, to its December Republican they commissioners said that ment. plan “although filing” it fails to a 5% “welcometheir it contains a it, what claims number do significant gerrymandered districts.” The statement lengthy analysis the Brown- a then contains plan, Dongvillo it is un- in which contrasted 5% plan. Republican favorably The state- 5% repeated urging that with the was concluded ment Republican plan. adopt the the Court 5% “petition February A to intervene 1, 1966. 13. appear in which amici curiae” or in alternative to 396. 377 Mich Opinion by «L, for Dismissal. Smith, parties sought certain to intervene reintroduced apportionment 7, No referred to in commis- Searchlight proceedings plan. sion as the Civic February 1, 14. a 1966. Justice Black filed public to the “memorandum”, which released was day. Among things, sug- that gestion other a contained removing com- one of the missioners from further consideration the matter drawing suggested also lots. It was agree the event the then to commissioners failed they might contempt a “final” be held in heavy necessary assessed fines. No comment or desirable. The memorandum to must be read fully evaluated. February response intervening
15. 4, 1966. A petition appear to defendants to or intervene to intervening as amici curiae filed. Said defend- objected agreed ants to intervention but to appearance parties amici curiae. February petition 16. 9, 1966. A intervene appear in the alternative by as amici curiae was denied this Court. February Republican apportionment 10,1966. pleading
commissioners filed to correct errors appearing previously pleadings. filed February Republican apportionment 21,1966. “supplementary commissioners issued claiming statement” majority that the order of the Court dated “wiped 2, November the slate clean”, that is say, existing erased the Austin-Kleiner alternate present legislature under which was elected again urged adopt 1964. The Court was Republican plan. 5 % Nothing Comment: is clearer the above re- from offerings petitioners Baclgley, vieiu al., et Republican apportionment and the commissioners, intervening on one side, Reholle, et defendants *59 1966] op Legislature. by Smith, for Dismissal. commissioners, al., other, and the Democratic on the rapport there is an amazing positions constituting respective groups “sides” in their pleadings, repleadings dicated above. All of arguments support are substantial one Republicans change, The want preferably another. keep plan. own Democrats would their 5% in present just in case the Court plan, but argument then the Democrats trigued by 5% plan. again This shoves their version a 5%of offer position appearing Court into the unenviable between sets no matter what partisans, decide legal Small won clearly overriding principles. him expressed der the late Mr. Jztstice Frankfurter Carr, Baker v. (82 S Ct US self “politi L 691, 7 part ed no ivanting 2d 663), cal thicket.”
Decision. already as to the vital indicated, onr views As by petitioners suit in this electors’ raised issues substantially November when dealt with last were majority com- the matter to the remanded the Court readopt now here and reiterate mission. We the views opinion, Mich 470. set forth in transpired addition, In events have several require some comment.
II major significance taken on the is the vote Of special plan by present conference, at a the Court primary purpose January considering for the 12, 1966, called apportionment, in the what to do about portion This the commission stalemate. wake of and is re- minutes has been cited above the Court emphasis: quoted here *60 377 Mich 4-70 by Opinion J., for Dismissal. Smith, was “Motion made Justice by supported O’Hara, Justice Court the the hold Austin- Dethmers, Kleiner unconstitutional offensive to the 1963 State Constitution. Kavanagh T.
“Nays: Chief Justice M. and Jus- tices and Souris. Black, Smith, Adams, Kelly. “Yeas: [Justices] O’Hara, Dethmers, Motion not carried.” The minutes were officially approved the Court at the 8th conference. February Now, the “Austin- Plan” Kleiner to in the referred is minutes present apportionment approved by Court in June, 1964 (373 250), under which the present legislature elected in was November, 1964. There is some suggestion in the opinion of Justice Deth- mers that the present plan has been measured this in only terms of Federal constitutional re- quirements of the equal protection clause as con- Reynolds. strued in There are two reasons why this not correct. First, in the June, 1964, decision establishing existing plan, the opinions sub- scribed to at least 5 Justices recognized the exist- plan (Austin-Kleiner ing alternate) as the plan which most accurately complied with constitutional requirements as Reynolds. The lan- construed guage opinion by Chief Justice T. M. Kava- nagh is clear:
“While it possible to develop detailed con- stitutional requirements, there can no question as to the overriding requirement—‘districts, both houses its legislature, as nearly equal popula- tion practicable.’ as The Austin-Kleiner alternate districting and apportionment, filed with this Court most nearly complies with said May 11, 1964, constitutional requirement.” (Emphasis added) Mich 1966] oe by Smith, for Dismissal. opinion by joined in this was Justice
The Chief
concurring
In a
Justices
opinion,
Adams.
Black,
Smith,
principle
accepted
Justice
O’Hara
practicable”
nearly
“equality
population
as
“pre-eminent”
said
test.
Justice
O’Hara
“only existing guideline.”
* 2.—-Reporter. Const, art US § Mich 396. Smith, for Dismissal. opinion, places In also his Justice Dethmebs stamp approval on the offered 5%
Republican apportionment Although commissioners. nothing properly else before Court without having present plan that the “fails found first requirements comply with the of this Constitu phrase as that tion,” construed, been neverthe has pass not less, we would let the moment without some plans upon percentage comment on the based as sumed mathematical formulae. think that nei We Republican ther the nor the Democratic 5% Reyn can meet the constitutional tests set forth in applied in and also Roman Sincock, olds v. 377 US 5(84 620). 69 L S Ct 2d In Roman ed Case, the un the United States equivocally disavowed the mathematical standards Republican both and Democratic versions of plan clearly implement. seek to In that case, 5% “suggested population-variance the lower court presumably smaller than to 1 ratios comport would 1-1/2 requisites.” with minimal constitutional page supra. footnote 21, Sincock, See Roman v. say: issue, toAs the Court had this to problem “In our view the does lend itself any practi- such uniform and it is formula, neither *62 rigid cable nor desirable to establish mathematical evaluating validity standards for the constitutional legislative apportionment a of State scheme under equal protection proper judi- Rather, clause. approach cial whether, ascertain is under the particular existing in circumstances the individual legislative apportionment issue, State whose there has at is plan been faithful to a adherence population-based representation, with minor such only may recognizing deviations occur in certain any factors that are free from taint of arbitrariness or discrimination.” op In re
1966] Smith, Dismissal. entirely applicable language is two This 5% plan. plans Democratic Nei- well as 15% pass muster, not alone be- can constitutional ther rigidity formulae, but, also, mathematical cause population disparities gross between because clearly districts, a matter evident from the record part opinion in in the current least, at discussed, Justice Souris. any can claim virtue with Nor either 5% respect partisan gerrymandering. have Both shaped oddly what is clear are districts which records is such from However, neither accidental nor unavoidable. are gerry question as' on the to the limits review mandering, Inc., WMCA, v. see discussion 2) my (86 Lomenzo, L ed 2d US CtS opinion, pages at We 376 Mich November specifically position therein. taken reaffirm the would
IV question whether as to been raised .has present plan under a “final” reviewable paragraph has dealt 8 of section Justice Souris comprehensively lucidly this issue his with heartily opinion accord and we are current reasoning conclusion that his and with his plan. is a final
V
portions
Finally,
in all other
Justice
we concur
already
opinion
not
mentioned
current
Souris’
opinion
his
conflict with
extent that
to the
opinion
opinion
my
of last November
or with
(376
470).
perceive only minor
differences
We
upon
approaches
primarily
differences
in our
based
.
*63
T. Souris, J., M. C. concurred Kavanagh, J. Smith, April 6,
Order having brought This matter been to this Court plaintiffs’ petition and defendants’ answers, pleadings of various commissioners, arguments respective and the briefs and counsel, having duly all due been considered the Court-and being pro-
deliberations had thereon, and this ceeding original jurisdiction within the of the being and ordered dismissed. disposition, the Court divided as to it is petition hereby be and the same It is further ordered that no costs awarded herein. justices (the
Souris, J. concur in dismissal, four Chief I) having Justice, Justices Smith, Adams, 1966] In re op Legislature. *64 plan complies
concluded that the Austin-Kleiner all requirements Federal and State constitutional petition jus- and that the should be dismissed, three (Justices tices ing hav- Dethmers, Kelly, O’Hara) concluded that the Austin-Kleiner should be declared unconstitutional and should be remanded legislative apportionment to the commission for fur- justice (Justice ther having action, and one Black) (see concluded to abstain from decision herein 416). Mich 396 at Justices Dethmers, and O’Hara Kelly, Black, opposition entry record dismissing of an order proceeding ground on the that it does not com- majority amand vote the Court.