In Re Apportionment of Tuscola County Board of Commissioners

644 N.W.2d 44 (2002) 466 Mich. 78

In re APPORTIONMENT OF TUSCOLA COUNTY BOARD OF COMMISSIONERS—2001.
Norma Bates, Petitioner-Appellant,
v.
Tuscola County Apportionment Commission, Respondent-Appellee.

Docket No. 120250.

Supreme Court of Michigan.

April 25, 2002.

Nantz, Litowich, Smith & Girard, P.C. (by John H. Gretzinger), Grand Rapids, MI, for the petitioner-appellant.

Mark E. Reene, Prosecuting Attorney, Caro, MI, for the respondent-appellee.

PER CURIAM.

Following the 2000 census, the Tuscola County Apportionment Commission reapportioned the districts for the Tuscola County Board of Commissioners under M.C.L. § 46.401 et seq. In this action, the petitioner raised several challenges to the apportionment commission's actions. The Court of Appeals upheld the apportionment plan, and the petitioner seeks leave to appeal. We conclude that a districting plan meets constitutional population standards if the total departure of the largest and smallest districts from the average size does not exceed 11.9 percent, even if one district is more than 5.95 percent larger or smaller than the average. We thus overrule the contrary decision in In re Apportionment of Wayne Co —2001, 248 Mich.App. 89, 637 N.W.2d 841 (2001). In all other respects, leave to appeal is denied.

I

The procedure for apportioning county commission districts is established by 1966 PA 261. The statute creates a five-member apportionment commission in each county, consisting of the county prosecutor, county treasurer, county clerk, and the chairpersons of the two political parties that received the most votes for their Secretary of State candidates in the last election. MCL 46.403.^[1]

The Secretary of State provided the necessary census information to the county on April 11, 2001, and the apportionment commission met several times. On May 18, it voted to reduce the size of the board of commissioners from the current seven members to five. The apportionment commission then approved a districting plan for a five-member commission, which was filed with the Secretary of State on June 1, 2001.

On June 29, petitioner Bates, the chairperson of the board of commissioners, filed a petition for review in the Court of Appeals.^[2] However, the Court issued an order on October 1, 2001, dismissing the petition and upholding the districting plan.^[3] Petitioner has filed an application for leave to appeal to this Court. She has also filed a "supplement" to the application raising an additional issue based on the recent Court of Appeals decision in In re Apportionment of Wayne Co —2001, supra. In this opinion, we address only the issue regarding the permissible population divergence analysis of In re Apportionment of Wayne Co. — 2001.

II

In Apportionment of Wayne Co. Bd. of Comm'rs — 1982, 413 Mich. 224, 321 N.W.2d 615 (1982), we held that the maximum allowable population divergence in county commission districts was 11.9 percent, on the basis of the U.S. Supreme Court's decision in Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971). In both the 1982 Wayne Co case and In re Apportionment of State Legislature— 1982, 413 Mich. 96, 141-142, 321 N.W.2d 565 (1982), we parenthetically described the permissible population divergence as a range around the ideal population.^[4]

In a recent decision regarding the apportionment of the Wayne County Board of Commissioners following the 2000 census, the Court of Appeals has interpreted our earlier decision as making the parenthetical range part of the requirement for permissible population divergence. In re Apportionment of Wayne Co — 2001, 248 Mich.App. at 92-93, 637 N.W.2d 841. The Court invalidated a districting plan even though the plan's overall population divergence of 9.05 percent was well within the 11.9 percent allowed by Abate. It did so because one of the districts exceeded the ideal population by 6.2 percent and was thus outside the "range" of 5.95 percent.^[5]

The plan approved by the Tuscola apportionment commission in 2001 presents a similar situation. In the 2000 census, Tuscola County had a population of 58,266, so that a five-district plan would have had an ideal population of 11,653 per district. The districts approved by the apportionment commission, and their departures from the ideal population, are as follows:

District # 1     11211    (- 442)      96.207%
District # 2     12392    (+ 739)     106.342%
District # 3     12174    (+ 521)     104.471%
District # 4     11046    (- 607)      94.791%
District # 5     11443    (- 210)      98.198%

The petitioner did not raise an issue regarding this population divergence question in the Court of Appeals, nor did she do so in her application for leave to appeal to this Court. However, after the decision in the Wayne Co case, she filed a "supplement" to the application challenging the apportionment plan on this population divergence question for the first time. She argued that the plan was invalid because District 2 exceeds the ideal population by more than 5.95 percent.

III

The decision by the Court of Appeals in Wayne Co—2001 construed our parenthetical reference to an equidistant percentage range as a mandatory principle in apportionment cases. Our decisions regarding local and state legislative apportionment cases have adopted the maximum population ranges on the basis of United States Supreme Court decisions holding that plans that deviated by those amounts met federal constitutional standards. In the local government context, Abate approved a plan with an 11.9 percent divergence, and Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), approved a maximum deviation of 16.4 percent in the state legislative apportionment context. We adopted those federally imposed limits without independent analysis and without indicating that any additional requirements were to be imposed. Our opinions stated such ranges parenthetically, apparently for illustrative purposes. However, no support for an equidistant range principle can be found in the United States Supreme Court opinions on which our decisions were based, and there is no statutory basis for such a requirement. Indeed, those United States Supreme Court decisions approved apportionment plans that had population variances that would not have been permissible if an equidistant range principle had been used. In Abate, one district was 7.1 percent below the ideal population. 403 U.S. at 184, n. 1, 91 S.Ct. 1904. Similarly, Mahan upheld a state legislative districting plan with a 16.4 percent percentage variation, but in which the largest district was underrepresented by 9.6 percent, well outside an "equidistant range" of 8.2 percent. 410 U.S. at 319, 93 S.Ct. 979.

Thus, the population divergence criterion of 11.9 percent total variation does not include an additional equidistant range limitation. The Tuscola County plan adopted by the apportionment commission in this case meets the equal population standard established by Wayne Co. Apportionment—1982. In that regard the petition for review is denied.^[6]

Pursuant to MCR 7.317(C)(3) the clerk is directed to issue the judgment order forthwith.

CORRIGAN, C.J., and WEAVER, MARILYN J. KELLY, TAYLOR, YOUNG, and MARKMAN, JJ., concurred.

MICHAEL F. CAVANAGH, J., would deny leave to appeal.

NOTES

[1] Unlike state legislative and congressional apportionment, there are two decisions to be made. First, the size of the county commission must be determined. MCL 46.401 provides generally that commissions are to be composed of no fewer than five nor more than thirty-five districts. However, the maximum number is actually controlled by M.C.L. § 46.402, on the basis of the population of the county. In the 2000 census, Tuscola County had a population of slightly over 58,000, and thus under that section the number of commissioners may not exceed twenty-one. Once the number of districts is determined, the statute provides guidelines to be used in apportioning them. MCL 46.404. No challenge is made in this case regarding the compliance of the adopted plan with the guidelines in that section.

[2] Judicial review is available under M.C.L. § 46.406:

Any registered voter of the county within 30 days after the filing of the plan for his county may petition the court of appeals to review such plan to determine if the plan meets the requirements of the laws of this state. Any findings of the court of appeals may be appealed to the supreme court of the state as provided by law.

[3] Docket No. 235221.

[4] In Wayne Co. Apportionment-1982, we said:

The Fourteenth Amendment requires that this be done with the least cost to the federal principle of equality of population between election districts consistent with the maximum preservation of city and township lines and without exceeding the range of allowable divergence under the federal constitution which, until the United States Supreme Court declares otherwise, shall be deemed to be the range approved in Abate of 11.9% (94.05 to 105.95). [413 Mich. at 256, 321 N.W.2d 615 (emphasis added).]

Similarly, in In re Apportionment of the State Legislature—1982, we concluded:

Senate and House election district lines shall preserve county lines with the least cost to the federal principle of equality of population between election districts consistent with the maximum preservation of county lines and without exceeding the range of allowable divergence under the federal constitution which, until the United States Supreme Court declares otherwise, shall be deemed to be 16.4% (91.8-108.2). [413 Mich. at 141, 321 N.W.2d 565 (emphasis added).]

[5] The Court of Appeals invalidated the Wayne County plan and remanded for adoption of a new one, retaining jurisdiction. The apportionment commission approved a new plan, and on rehearing, the Court of Appeals denied the petition for review, confirming the new plan. In re Apportionment of Wayne Co—2001 (On Rehearing), 250 Mich.App. ___; ___ N.W.2d ___, 2002 WL 554559 (Docket No. 235339, issued April 12, 2002).

[6] The petitioner has raised several other issues regarding the apportionment commission's actions. As to those claims, the application for leave to appeal is denied. Although the Court has some concerns regarding the interpretation of M.C.L. § 46.401 set forth in Kizer v. Livingston Co. Bd. of Comm'rs, 38 Mich.App. 239, 195 N.W.2d 884 (1972), that issue is not properly before the Court because there is no evidence that the Board of Commissioners attempted to reapportion the commissioner districts within the thirty-day period mentioned in the statute. Absent such an attempt, or a declaratory judgment action challenging Kizer's interpretation of the M.C.L. § 46.401, there is no justiciable controversy before us.