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COMMONWEALTH EX REL. SPECTER v. LEVIN (06/05/72)

decided: June 5, 1972.

COMMONWEALTH EX REL. SPECTER, APPELLANT,
v.
LEVIN



Appeals from final reapportionment plan of Pennsylvania Legislative Reapportionment Commission, in cases of Commonwealth ex rel. Arlen Specter v. Levin; appeal of Robert A. Rovner et al.; appeal of Lawrence Sager; appeal of C. V. Afflerback et al.; James H. J. Tate et al. v. Legislative Reapportionment Commission; Elmer Berkebile et al. v. Legislative Reapportionment Commission; Thomas P. McCreesh et al. v. Legislative Reapportionment Commission; Joseph Pavlak et al. v. Legislative Reapportionment Commission; Lawrence H. Curry et al. v. Legislative Reapportionment Commission; Robert Oravetz et al. v. Legislative Reapportionment Commission; Bernard F. Sherer v. Legislative Reapportionment Commission; Fred L. Lebder v. Legislative Reapportionment Commission; appeal of Baldwin Borough; Michael von Moschzisker v. Levin; George O. Piazzi et al. v. Legislative Reapportionment Commission; Robert J. Devers et al. v. Legislative Reapportionment Commission; Joseph T. Doyle et al. v. Legislative Reapportionment Commission; and appeal of J. E. Fleming, Jr.

COUNSEL

Arlen Specter, District Attorney, in propria persona, with him Martin H. Belsky, Assistant District Attorney, for appellant.

Louis W. Fryman, with him William Austin Meehan, Steven J. Hartz, Larry S. Keiser, and Becker, Fryman & Ervais, for appellants.

Lawrence Sager, in propria persona, with him Sager & Sager, for appellant.

George T. Kelton, with him Begley, Carlin, Mandio, Kelton & Popkin, for appellants.

Louis C. Johanson, for appellants.

K. L. Shirk, Jr., with him Shirk, Reist and Buckwalter, for appellants.

John J. McCreesh, Jr., with him McCreesh & McCreesh, for appellants.

Robert W. Valimont, for appellants.

Sheldon W. Farber, for appellants.

John H. Broujos, for appellants.

Thomas R. Ceraso, for appellants.

John R. Luke, for appellant.

Bennett G. Picker, with him W. Bourne Ruthrauff, for appellant.

James V. Senape, Jr., submitted a brief for appellants.

John Philip Diefenderfer, with him Stuckert, Yates & Krewson, for appellants.

William E. Mowatt, with him Joseph T. Doyle, for appellants.

John Fuller, with him Bruce L. Smith, Charles J. Swick, Carroll F. Purdy, and Metzger, Hafer, Keefer, Thomas & Wood, for appellants.

J. Shane Creamer, Attorney General, with him Walter L. Foulke, Executive Deputy Attorney General, for appellees.

Thomas N. O'Neill, Jr., with him Montgomery, McCracken, Walker & Rhoads, for appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Mr. Chief Justice Jones, Mr. Justice Pomeroy and Mr. Justice Manderino dissent. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Jones. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones joins in this dissent. Dissenting Opinion by Mr. Justice Manderino.

Author: Per Curiam; Roberts

[ 448 Pa. Page 4]

And Now, this seventh day of February, 1972, upon consideration of the above appeals, we find that the Final Reapportionment Plan of the Pennsylvania

[ 448 Pa. Page 5]

State Legislative Reapportionment Commission filed on December 29, 1971, is in compliance with the mandates of the Federal and Pennsylvania Constitutions and therefore shall have the force of law. Hence it is ordered that said Plan filed on December 29, 1971, shall be used in the forthcoming Primary and General Elections of 1972 and thereafter shall remain in force and effect until constitutionally altered.

Opinions to follow.

Opinion by Mr. Justice Roberts, June 5, 1972:

On February 7, 1972, after oral argument on 17 of the 18 above-captioned appeals,*fn1 this Court entered an order declaring that the final plan for the reapportionment of the Pennsylvania Senate and House of Representatives filed by the Pennsylvania Legislative Reapportionment Commission was in compliance with the requirements of the United States Constitution and the Constitution of this Commonwealth.*fn2 In that order we indicated that opinions would follow. This opinion is in response to that order.

I

The reapportionment plan that is attacked by appellants is the first work product of the Pennsylvania Legislative Reapportionment Commission established by an amendment to the Pennsylvania Constitution in 1968.*fn3 Prior to 1968 reapportionment of the Pennsylvania

[ 448 Pa. Page 6]

Legislature was effected by act of the General Assembly.*fn4

The Legislative Reapportionment Commission consists of five members. Four of the members are the majority and minority leaders of both the Senate and the House of Representatives, or deputies appointed by each of them.*fn5 The fifth member is the chairman of the Commission.*fn6 The chairman is selected either by the four other members of the Commission, or, if those four members fail to select a chairman within the time prescribed, the chairman is selected by this Court.*fn7 The Commission acts by a majority vote of its membership.*fn8

The advantages of assigning the responsibility for reapportioning the Legislature to such a commission are quite obvious, and several other states have recently adopted or considered proposals for similar commissions.*fn9 The equal representation on the Commission provided to the majority and minority members of each house precludes the reapportionment process from being unfairly dominated by the party in power at the moment of apportionment. In addition, the provision for a chairman who can act as a "tie-breaker" eliminates the possibility of a legislative deadlock on reapportionment such as the one that occurred in the Legislature

[ 448 Pa. Page 7]

    of this Commonwealth in 1965 and compelled this Court to undertake the task of reapportionment.*fn10 At the same time the Legislature's expertise in reapportionment matters is essentially retained.*fn11

II

In its epic decision on state legislative apportionment in Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964), the United States Supreme Court held: "[T]he Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable."*fn12 The Court went on to approve "divergences from a strict population standard [that] are based on legitimate considerations incident to the effectuation of a rational state policy,"*fn13 but cautioned that these divergences must not dilute the equal-population principle "in any significant way."*fn14 The Court held: "[ T ] he overriding objective must be substantial equality of population among the various districts. . . ."*fn15

Section 16 of Article II of the Pennsylvania Constitution, in addition to incorporating the "as-nearly-of-equal-population-as-is-practicable" mandate of Reynolds, establishes two other factors which a plan for reapportionment of the Pennsylvania Legislature is to meet. That section provides: "The Commonwealth shall be divided

[ 448 Pa. Page 8]

    into fifty senatorial and two hundred three representative districts, which shall be composed of compact and contiguous territory as nearly equal in population as practicable. . . . Unless absolutely necessary no county, city, incorporated town, borough, township or ward shall be divided in forming either a senatorial or representative district."*fn16 In Reynolds, Section 16's additional objectives for reapportionment plans were specifically recognized as legitimate considerations which can justify some divergences from a strict population standard. The Court held: "A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. Valid considerations may underlie such aims."*fn17

However, in light of the fact that the Equal Protection Clause requires that in any reapportionment scheme "the overriding objectives must be substantial equality of population,"*fn18 it is not constitutionally permissible to totally achieve Section 16's objective of respecting the boundaries of political subdivisions. As the Supreme Court explained in Reynolds : "[P]ermitting deviations from population-based representation

[ 448 Pa. Page 9]

    does not mean that each local governmental unit or political subdivision can be given separate representation, regardless of population. Carried too far, a scheme of giving at least one seat in one house to each political subdivision . . . could easily result, in many States, in a total subversion of the equal-population principle in that legislative body. . . . [I]f, even as a result of a clearly rational state policy of according some legislative representation to political subdivisions, population is submerged as the controlling consideration in the apportionment of seats in the particular legislative body, then the right of all the State's citizens to cast an effective and adequately weighted vote would be unconstitutionally impaired."*fn19

In addition, Section 16's desire for districts that are "compact" must also yield, if need be, to the "overriding objective . . . [of] substantial equality of population."*fn20 Moreover, attempts to maintain the integrity of the boundaries of political subdivisions unless it is "absolutely necessary" to do otherwise will in reality make it impossible to achieve districts of precise mathematical compactness.*fn21 A great many, if not most of the counties, cities, towns, boroughs, townships and wards in this Commonwealth have a geographical shape which falls far short of ideal mathematical compactness.*fn22

[ 448 Pa. Page 10]

Thus the approach that this Court adopted when we were obliged to undertake the task of reapportionment in 1966 remains the approach which the Legislative Apportionment Commission must employ in formulating its plan. In Butcher II, 420 Pa. at 309-10, 216 A.2d at 459 (1966), we stated: "Our primary concern has been to provide for substantial equality of population among legislative districts. At the same time, we have sought to maintain the integrity of political subdivisions and to create compact districts of contiguous territory, insofar as these goals could be realized under the circumstances of the population distribution of this Commonwealth."*fn23

Subsequent to this Court's decision in Butcher II the United States Supreme Court decided Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225 (1969), and Wells v. Rockefeller, 394 U.S. 542, 89 S. Ct. 1234 (1969). In these cases, which involved Congressional redistricting plans for the states of Missouri and New York, the Court held: "[T]he command of Art. I, ยง 2, that States create congressional districts which provide equal representation for equal numbers of people permits only the limited population variances which are

[ 448 Pa. Page 11]

    unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown."*fn24

In Kirkpatrick the Court struck down a Missouri redistricting plan in which the total range of deviation from the ideal district population was 5.97%.*fn25 The Court not only observed that it was "not seriously contended that the Missouri Legislature came as close to equality as it might have come,"*fn26 but stated in addition: "[I]t is simply inconceivable that population disparities of the magnitude found in the Missouri plan were unavoidable."*fn27 The Court also held: "[W]e do not find legally acceptable the argument that variances are justified if they necessarily result from a State's ...


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