Alexander v. Taylor , 51 P.3d 1204 ( 2002 )

LAVENDER, J.,

concurring specially:

¶ 1 The United States Supreme Court has decided that issues of the sort now before us are of a justiciable nature. See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)(involving reapportionment of State of Tennessee General Assembly). The United States Supreme Court has also unequivocally determined that the United States Constitution leaves with the States, including a State’s judicial branch in appropriate circumstances, the primary responsibility for apportionment of their federal congressional and state legislative districts. Growe v. Emison, 507 U.S. 25, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993)(three-judge federal district court panel required to defer to state court’s timely efforts to redraw legislative and congressional districts). The Oklahoma Constitution at Article 7, § 7(a) provides in pertinent part that “[t]he District Courts [of the State of Oklahoma] shall have unlimited original jurisdiction of all justiciable matters-” Further, the Oklahoma Constitution at Article 7, § 4 reposes in this Court the appellate jurisdiction to review the decisions of our District Courts. The simple fact is that the Oklahoma state courts and an appropriate federal court have concurrent subject matter jurisdiction over the controversy presently before us. It would be .wrong, therefore, for this Court to rule favorably on Appellants’ request (made at page four of their June 20, 2002 response brief in this case) that we merely vacate the lower court’s judgment entered in this matter and “allow the three-judge [panel for the] Federal District Court for the Western District of Oklahoma to adopt a new congressional plan for use in this year’s elections.” Such a course might be the easier one for this Court to follow, but it would not be the course charted by the United States Constitution, the Constitution of the State of Oklahoma, or the laws of this State or Nation.

¶ 2 Title 2 U.S.C. § 2c (2000) provides as follows:

In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative (except that a State which is entitled to more than one Representative and which has in all previous elections elected its Representatives at Large may elect its Representatives at Large to the Ninety-first Congress).

As I understand the import of the above federal statute the five congressional House of Representative Members from OHahoma that will be elected by virtue of the upcoming election cycle are supposed to be elected from districts “established by law”. As everyone is aware, the current districts that have been in place for about ten years can no longer be used. This is so because OHa-homa is losing a Representative — we are going from six to five — and there are presently six districts rather than five.

¶ 3 I recognize, as I am sure my colleagues on this Court do also, that it was the legislative and executive branches of our State government that had, within their respective roles in the passage and approval of a valid law, the initial and primary responsibility for promulgating a law accomplishing congressional redistricting. I also recognize that no such law was passed by both houses of our State Legislature and approved by the Governor during the recently concluded legislative session. Such recognition is in no way intended to denigrate the co-equal legislative or executive branches of OHahoma’s government, but merely to point out that without court intervention at this juncture no valid congressional redistricting will occur prior to the upcoming election cycle because, practically, there is no reasonable chance that the legislative and executive branches will have the opportunity to again revisit the issue in a timely manner. Although I do not relish having to be involved in the process of congressional redistricting, I simply do not believe I have the luxury of merely passing this matter off on some other court. In that the District Court had subject matter jurisdiction of a justiciable controversy this Court has the duty and responsibility to review the lower court’s judgment that was entered.

¶4 I am authorized to state that Justice Hodges joins in the views expressed herein.