decided: May 1, 1987.
IN RE: PETITION OF THE BOARD OF DIRECTORS OF THE HAZLETON AREA SCHOOL DISTRICT TO CHANGE (REAPPORTION) AN APPROVED PLAN WHICH ESTABLISHED NINE REGIONS FOR ELECTION OF DIRECTORS WITHIN THE DISTRICT. VALLEY EDUCATION ASSOCIATION, APPELLANT
Appeal from the Order of the Court of Common Pleas of Luzerne County in the case of In Re: Petition of the Board of Directors of the Hazleton Area School District to change (re-apportion) an approved plan which established Nine Regions for election of directors within the District, No. 2314-C 1986.
Clifford A. Rieders, with him, Simonne N. Roy, Rieders, Travis, Mussina, Humphrey & Harris, for appellant.
James S. Palermo, with him, James A. Kelly and David L. Glassberg, for appellees.
Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.
[ 105 Pa. Commw. Page 566]
This is an appeal by the Valley Education Association (Association) from an order of the Court of Common Pleas of Luzerne County that adopted a reapportionment plan submitted to the trial court by the Board of Directors of the Hazleton Area School District (District) pursuant to the provisions set forth in Section 303 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 3-303 (School Code).
Fortunately, a detailed description of the geographical boundaries of the plan is unnecessary. Suffice it to say that because of major population shifts within the confines of the school district boundaries, the 1967 nine-region plan was no longer satisfactory and was probably unconstitutional. Accordingly, the District, after public notice and hearings at which citizens were invited to comment, devised a plan whereby the District would again be composed of nine regions, but one region admittedly contained a section that did not physically abut the rest of the region.*fn1 On the bases that this region (Region 7) is not "contiguous" and that the population deviations within the individual regions are unconstitutional in that they are in violation of the "one-man one-vote" principle enunciated by the United States Supreme Court in Reynolds v. Sims, 377 U.S. 533 (1964), the Association has objected to the plan.*fn2
[ 105 Pa. Commw. Page 567]
We begin by recognizing, as did the trial court, that where a school district undertakes reapportionment, three criteria must be met. Pursuant to Section 303 of the School Code, "[t]he boundaries of the regions shall be fixed and established in such manner that the population of each region shall be as nearly as equal as possible and shall be compatible with the boundaries of election districts." In addition, there is a third requirement, which appears in Section 502 of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2702 (Election Code). Section 502 mandates that "[w]hen a school district crosses county lines, the regions of the school district shall be composed of contiguous election districts." (Emphasis added.) It is undisputed that the District crosses county lines and includes territory from Luzerne, Carbon, and Schuylkill Counties.
The trial court concluded that the term "contiguous" as used in Section 502 means "in close proximity; or near, though not in contact." Accordingly, it determined
[ 105 Pa. Commw. Page 568]
that Section 502 of the Election Code had not been violated. We respectfully disagree.
Although we acknowledge that the term "contiguous" as employed in Section 502 has never been interpreted, we note that that precise term has been interpreted where it appeared in a statute pertaining to annexation of borough and township land. There, as here, the statute itself was free from ambiguity, and the Pennsylvania Supreme Court stated:
If the Legislature had intended to include in the annexable field such land as was 'nearby' or merely 'close', it would have said so. If contiguity can leap 30 feet, it can leap 300 feet or 30 miles. . . .
The universally recognized authority on the English language, the Oxford Dictionary, defines contiguous as 'touching, in actual contact, next in space, meeting at a common boundary, bordering, adjoining; continuous, with its part in uninterrupted contact.'
Lancaster City Annexation Case (No. 5), 374 Pa. 546, 548, 98 A.2d 34, 35 (1953). Based upon this reasoning, the Lancaster Court concluded that breaks in the annexed area of 244.35 feet by 30 feet and 59.97 feet by 15 feet were noncontiguous and hence violative of the law. Although the record here does not include pertinent and useful facts such as the length of the noncontiguous area and whether any electors even reside there, based upon the analysis in Lancaster, we conclude that any break in the contiguous physical territory, no matter how small, is unacceptable. We add here that we have searched the record for any indication that compliance with both the two criteria in the School Code and the one criterion in the Election Code would be impossible. There is no such indication. If that were the case, obviously some requirement would have to give way; but since that is not the situation presented to
[ 105 Pa. Commw. Page 569]
us, we need not consider it. We also add that the Board's good faith in submitting its plan is not questioned by this Court. We note that the plan has corrected a particularly egregious problem, i.e., the noncontiguity of West Hazleton Borough with the rest of the region to which it has been apportioned at least since 1967, Region 9.*fn3
[ 105 Pa. Commw. Page 570]
Because of our disposition of this first issue, we are not compelled to reach the question of whether the population within the District has been reapportioned "as nearly equal as possible" or whether the dictates of Reynolds (which the Association argues is controlling) have been violated. However, in the interest of judicial economy and in an attempt to provide guidance to the District and trial court, we will briefly discuss this issue because their manner of comparing the percentage variables may be confused by language in certain opinions of the United States Supreme Court dealing with the issue of reapportionment under the aegis of the Equal Protection Clause. The Association argues that under the District's plan the population deviation is impermissible, and cites Connor v. Finch, 431 U.S. 407 (1977), which suggests that a prima facie case of unconstitutionality in apportionment is established where a maximum population deviation of more than ten percent exists. Connor at 418. Connor arose in the context of a reapportionment plan involving a suspect class of citizens in Mississippi and a reapportionment of state Page 570} legislative districts. First, there is considerable question as to whether its dictates would be controlling in the apportionment actions of a local school district. In Mahan v. Howell, 410 U.S. 315 (1973), the Supreme Court stated that state legislative redistricting plans are not to be judged by the more stringent standards that Kirkpatrick v. Preisler, 394 U.S. 526 (1969) and Wells v. Rockefeller, 394 U.S. 542 (1969) make applicable to congressional reapportionment, but instead by the more flexible equal protection test enunciated in Reynolds. The underpinning of this dichotomy is that:
So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in [the] . . . state legislature.
Reynolds, 377 U.S. at 579. In Mahan, the Court found that the preservation of political subdivision lines to avoid gerrymandering and to permit voters in those subdivisions a greater voice in the state legislature on local issues were rational state objectives. That being so, a statute mandating the preservation of the boundary lines of the most rudimentary of areas in the election process, the election district (which might be called "precincts" or "divisions") compels a similar conclusion. Likewise, a statute that requires each voting region in a multicounty district to be contiguous to avoid gerrymandering would also appear to be constitutionally permissible.
Second, the Association's asserted population deviation of 16% is the maximum deviation from total population equality, not the maximum deviation from the population norm of 8,110; that is, the total population (72,992) divided by the number of districts (9). By comparing the population in the district with the greatest
[ 105 Pa. Commw. Page 571]
population to the population of the district with the least population, the Association has arrived at a maximum population deviation of 16%, i.e., District 5 with a population of 8,694 compared to District 4 with a population of 7,404. But these population deviations vary from the population norm of 8,110 by only 7.2% in the case of District 5, and only 8.7% in the instance of District 4.
In Mahan the Supreme Court approved a reapportionment plan of the Virginia General Assembly where the maximum percentage variation was 16.4%, but the most overpopulated district varied from the norm by only 6.8% and the least populated district by only 9.6%. It is apparent therefore, that where a plan reasonably advances a rational state policy, greater deviations are permissible. Furthermore, of the three criteria which must be complied with here, barring compelling circumstances to the contrary, two (contiguous territory and election district boundary lines) are absolutes and only the requirement of population equality is couched in the malleable language, "as nearly as equal as possible."
Finally, because the date of the primary election is so near, we add that in reversing the trial court's order and requiring a new plan, we realize that an extended deadline for the filing of nominating petitions may be necessary and the primary election of School Directors itself may have to be postponed. We may only note in this regard that although a notice of appeal was filed with the trial court on October 22, 1986, neither party in this case petitioned this Court for expedited treatment of this matter until March 17, 1987, see Pa. R.A.P. 2313. Accordingly, we refuse to allow the limited time period for plan revision or the costs of a special election to sanction statutory violations where fundamental rights are involved. The order of the trial court is reversed.
[ 105 Pa. Commw. Page 572]
Now, May 1, 1987, the order of the Court of Common Pleas of Luzerne County in the above captioned matter adopting the District's plan is hereby reversed. This case is remanded to the trial court with directions that it retain jurisdiction and supervise the District's adoption of another plan as expeditiously as possible. The trial court may use its equity powers to extend the deadline for filing nomination petitions and for the holding of a special primary election should such action be necessary and in the best interests of justice. See Barbieri v. Shapp, 474 Pa. 613, 379 A.2d 534 (1977) (opinion reported at 476 Pa. 513, 383 A.2d 218 (1978)); Consolidation of Election Region West Branch Area School District, 104 Pa. Commonwealth Ct. 328, 522 A.2d 667 (1987). See also 42 Pa. C.S. § 706 (permitting this Court as an appellate court to remand a matter and require such further proceedings as may be just under the circumstances).
Reversed and remanded.