Preisler v. Kirkpatrick ( 1975 )

PINCH, Judge

(dissenting).

I respectfully dissent. The principal opinion concludes that Districts 6 and 33 are not compact as required by the Constitution but holds that since in its view the remaining districts are within acceptable limits of compactness, the plan as a whole complies with the compactness requirement established by Art. Ill, § 5, Mo.Const.

I cannot agree with that conclusion. In my view when Art. Ill, .§ 5 says that in establishing the prescribed 34 senatorial districts, “the state shall be divided into convenient districts of contiguous territory, as compact and nearly equal in population as may be,” (emphasis supplied) it applies all three of these standards to all of the 34 districts, not just to some or most of them. For example, suppose that 33 of the districts consisted of contiguous territory but one district was made up of two segments separated by an intervening district. Can there by any doubt but that the establishment of that one non-contiguous district would constitute a violation of Art. Ill, § 5 and make the plan bad? Would we paraphrase what the principal opinion says with reference to the compactness requirement and say that the commission made a good faith effort to make districts contiguous and actually made all but one contiguous districts, and, therefore, the plan complies with that requirement of Art. Ill, § 5? I think not.

Or suppose that 33 of the districts were approximately equal in size but that the 34th district had only one-third or one-half as many people as the other 33 districts. Isn’t it clear that such a district could not be permitted to stand and that its existence would make the plan bad and require redistricting?

If the above assumptions are correct, and I believe they are, then the mandate of Art. Ill, § 5 also means that the plan must contain districts, none of which are in clear violation of the compactness requirement. There is not one word in Art. Ill, § 5 which indicates to the contrary. This does not mean that the Constitution requires perfect compactness any more than it requires exact equality of population because by the nature of things, some stair-step shapes and irregular lines will be inevitable. For example, county lines do not lend themselves to perfect compactness. It also must be subject to the fact that the courts have held that the requirement of equality in population takes precedence, and that, to the extent necessary, whatever irregularity is required to achieve population balance is permissible. There also may be some irregularity as the result of physical factors of areas involved or because of historical factors. However, subject to those qualifications, Art. Ill, § 5, in my judgment, applies to all districts and requires all of them to be as compact as may be.

Does the plan in question meet that standard? Clearly not. District 6 in the City of St. Louis runs from the northern city limit to within a few miles of the southern city limit. For two-thirds of its length, it hugs the Mississippi River. It then turns west after which it continues south on a path several miles from the river. It is 19.8 miles long and narrows at one point to only 0.4 miles in width.¹ In appearance it resembles a mountainous “S” curve, a corkscrew or a twisted shoestring. The principal opinion holds that District 6 does not meet the compactness requirement of Art. Ill, § 5. With reference to this district, appellant’s brief states: “We will not attempt to defend District 6. It would be absurd to claim that this district meets anybody’s standard of compactness.” What more need be or can be said? Nor is any reason or excuse therefor shown. As the principal opinion points out, “[T]he parties agree that the shapes of the districts are not the result of physical features of the areas involved and appear to agree that there is no evidence that any historical factors were considered.” This being true, how can a plan be permitted to stand when it contains a district like No. 6 which so patently and admittedly violates Art. Ill, § 5?

But that isn’t all. The principal opinion holds that District 38² also violates the compactness requirement of Art. Ill, § 5. Furthermore, there are other districts, attacked by respondents, which I find not “as compact * * * as may be.” By this I do not mean districts which could just be improved so as to be more nearly compact. I have reference to districts which are not compact within the meaning of Art. Ill, § 5. For example, District l,³ which is located partially in the City of St. Louis and partially in St. Louis County, is 18.6 miles long and at its narrowest point is only 0.8 miles wide. Its shape defies description. In my judgment, it, like District 6, would not meet anybody’s standard of compactness. Its existence furnishes an additional reason for holding, as did the trial court, that the existing plan violates the compactness requirement of Art. Ill, § 5.

Respondents also attack the compactness of at least 9 other districts. I will not lengthen this dissent by discussing or even referring to all of them, but it is clear that Districts 9 and 10⁴ in Jackson County, District 12⁵ which extends across the northern portion of the state, District 34⁵ in the northwest section of the state, and District 29⁵ which extends along much of the southern border are not reasonably compact.

Appellants have offered no evidence to justify the lack of compactness in any of these districts, nor to demonstrate any reason why the commission could not have complied with the requirements of Art. Ill, § 5. In my view, that burden rested on them⁶ when, as here, lack of compactness in fact exists and it is recognized that this was not brought about as the result of physical features or historical consideration and there is nothing to show it was to achieve equality in population.

In the opening paragraph of the argument section of appellant’s brief herein appears this sentence: “It is hoped that the resulting decision will serve as a guide to future redistricting commissions.” The principal opinion does just that. It says to them that absent an affirmative showing of bad faith or improper motive by the commission, their plan will be approved, insofar as the compactness requirement of Art. Ill, § 5, is concerned, if most of the districts are reasonably compact and that this will be true even if one or more of the districts look like an elongated “S” or a twisted shoestring and are so lacking in compactness that they do not meet “anybody’s standard of compactness.”

I cannot concur in such a message. If a plan containing Districts 6, 1 and 33 (even forgetting the others) can be permitted to stand, then as a New York court said in the case of In re Livingston, 96 Misc. 341, 160 N.Y.S. 462, 470 (1916), in holding bad a legislative districting plan in the City of New York, “* * * If the apportionment of a district of this shape can be upheld, when no other constitutional provision makes its shape necessary, then the provision as to compactness serves no purpose. * * * >>

The position I espouse is, in my judgment, consistent with the earlier opinions by this court involving the issue of compactness of legislative districts. The first of those cases was State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40 (banc 1912). It was an original proceeding in mandamus to require the circuit judges of the City of St. Louis to redistrict the city into six state senatorial districts. Under the law at that time, the general assembly was to establish senatorial districts, but if it was unable to agree, the duty passed to the governor, the attorney general and the secretary of state. Art. IV, § 7, Mo.Const. 1875. The suit in question sought to put into effect a plan agreed to by two of these officers over the dissent of the governor. This court denied the writ of mandamus for various reasons, one of which was the lack of compactness of some of the districts established by the plan. Maps of those districts are set out in the opinion. 146 S.W. at 55. Comparison thereof with Districts 6 and 1 and even 33 show that the latter are less compact and much less acceptable in shape than those disapproved in Hitchcock. Yet the court in Hitchcock said, 146 S.W. at 65:

“We are also of the opinion that the act of apportionment, as before stated, violates the Constitution, in that it does not conform to the provision which requires compactness of counties. At another place, we have set out a map of several of them, which shows a total disregard of this constitutional provision.”

The next decision which considered the compactness requirement was Preisler v. Doherty, 284 S.W.2d 427 (Mo. banc 1955). It involved a declaratory judgment action seeking a determination of the validity of seven senatorial districts established in the City of St. Louis by the Board of Election Commissioners of that city. The court pointed out that this was districting by an administrative agency, not by the General Assembly, and that the Board of Election Commissioners had been delegated “very limited legislative power for a single purpose, namely: to divide the City into senatorial districts ‘of contiguous territory, as compact and nearly equal in population as may be.’ ” 284 S.W.2d at 432. The court held that the seven districts were not compact and that such deficiencies were not due to physical features of the area. After noting that the requirements as to contiguity and compactness were placed in the Constitution for a purpose, the court said, 284 S.W.2d at 435:

“* * * There is no discretion to violate mandatory provisions of the Constitution; certainly not by these administrative officers. We must hold that this 1952 redistricting violates the Constitution and is unconstitutional and invalid.”

Maps of two of the districts held bad are set out at the end of the opinion. They obviously are not compact but certainly they are not worse, if as bad, as Districts 6 and 1 in the present plan.

The third Missouri case which has considered the question of compactness was Preisler v. Hearnes, 362 S.W.2d 552 (Mo. banc 1962). It involved a declaratory judgment suit to determine the validity of the 1961 act which divided, the state into ten congressional districts. The districts were attacked on the basis of alleged lack of uniformity of population and compactness of territory. The court overruled both attacks and held the plan good. However, what the opinion says on the question of compactness is significant. Judge Hyde, who also had written the opinion in Preisler v. Doherty, supra, first pointed out that in Doherty the court dealt with redistricting by an administrative agency whereas here the redistricting was by the legislature which had somewhat more discretion. He then wrote, 362 S.W.2d at 557:

“All of the districts established by the 1961 Act are reasonably compact except the Tenth, although the Eighth, Ninth as well as Tenth could have been improved in that respect by adjustments of counties between the Eighth and Ninth (and also either the Fourth or Sixth) on the north and between the Eighth and Tenth on the south and east. However, there are no shoe string districts such as some in Missouri forty years ago, when there were 16 districts, before Sec. 45, Art. Ill, was added to our Constitution.” (Emphasis added.)

Subsequent language in the opinion with reference to the Tenth District discloses it was not at all comparable to Districts 6 and 1 of the present plan. It was a district which could have been improved and made more compact, but was not of such a nature that “It would be absurd to claim that this district meets anybody’s standard of compactness.” The court did not find that the Tenth District was so lacking in compactness that it violated the constitutional provision, but its language infers the result would have been otherwise if the plan had contained shoestring districts. The opinion in Preisler v. Hearnes does not require or indicate that the plan now before us should be sustained. Here we deal with districts comparable to those held bad in Doherty and districting by a commission as in that case, not by the legislature.

A holding that the present senatorial redistricting is unconstitutional and that the state should be redistricted does not present any serious timetable problems in regard to holding the 1976 elections. We could provide that if a new redistricting plan is completed and filed by some date such as March 1,1976, then the new plan would govern the 1976 elections and the Secretary of State would be directed to accept filings only on the basis of such new plan. If a new redistricting plan has not been completed and filed by March 1, 1976, the 1976 election would be held on the basis of presently existing districts and the Secretary of State would be directed to accept filings on and after March 1, 1976, on that basis. In such event, the new redistricting plan, when filed, would apply to and govern elections in 1978.

I would affirm the judgment of the circuit court. Accordingly, I dissent from the principal opinion.

1 . This district is shown on Appendix 4 to the principal opinion.

2 . This district is shown on Appendix 7 to the principal opinion.

3 . This district is shown on Appendix 5 to the principal opinion.

4 . These districts are shown on Appendix 6 to the principal opinion.

5 . These districts are shown on Appendix 4 to the principal opinion.

6 . It is well established that the burden of justifying deviations from parity in population is on the state. Swann v. Adams, 385 U.S. 440, 445, 446, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967); Dinis v. Volpe, 264 F.Supp. 425, 430 (D.Mass.1967), affirmed 389 U.S. 570, 88 S.Ct. 696, 19 L.Ed.2d 785 (1967); Maryland Citizens Committee for Fair Congressional Redistricting, Inc. v. Tawes, 226 F.Supp. 80 (D.Md.1964). There is no reason why the rule should be different with respect to explaining and justifying a lack of compactness. The case of Noun v. Turner, 193 N.W.2d 784, 791 (Iowa 1972), holds that this burden is on the state.