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Amanda E. Holt, Elaine Tomlin, Luis Nudi, Diane Edbril, Dariel I. v. 2011 Legislative Reapportionment Commission

May 8, 2013

AMANDA E. HOLT, ELAINE TOMLIN, LUIS NUDI, DIANE EDBRIL, DARIEL I. JAMIESON, LORA LAVIN, JAMES YOEST, JEFFREY MEYER, CHRISTOPHER H. FROMME, TIMOTHY F. BURNETT, CHRIS HERTZOG, GLEN ECKHART, JOAN JESSEN, ELIZABETH ROGAN, JAMES HERTZLER, GARY EICHELBERGER, BARBARA B. CROSS, AND MARY FRANCES BALLARD, APPELLANTS
v.
2011 LEGISLATIVE REAPPORTIONMENT COMMISSION, APPELLEE DENNIS J. BAYLOR, APPELLANT
v.
2011 LEGISLATIVE REAPPORTIONMENT COMMISSION, APPELLEE STATE REPRESENTATIVE JOHN P. SABATINA, JR. FOR THE 174TH LEGISLATIVE DISTRICT AND STATE REPRESENTATIVE THOMAS R. CALTAGIRONE FOR THE 127TH LEGISLATIVE DISTRICT, APPELLANTS
v.
2011 LEGISLATIVE REAPPORTIONMENT COMMISSION, APPELLEE THOMAS SCHIFFER, RACHEL J. AMDUR, JOAN TARKA, LAWRENCE W. ABEL, MARGARET G. MORSCHECK, LAWRENCE J. SHRZAN, SHIRLEY RESNICK, SUSAN JEWETT, AND CARL DUZEN, APPELLANTS
v.
2011 LEGISLATIVE REAPPORTIONMENT COMMISSION, APPELLEE PATTY KIM, APPELLANT
v.
2011 LEGISLATIVE : REAPPORTIONMENT COMMISSION, APPELLEE COUNCIL PRESIDENT HOLLY BROWN, MAYOR CAROLYN COMITTA, JOHN HELLMAN, MAYOR LEO SCODA, COUNCIL PRESIDENT RICH KIRKNER, COUNCILPERSON JENNIFER MAYO, APPELLANTS
v.
2011 LEGISLATIVE : REAPPORTIONMENT COMMISSION, : APPELLEE DANIEL P. DOHERTY, CHERYL L. NICHOLAS, STACY C. HANNAN, KRISTINE L. KIPPHUT, SUSAN SABA, TARA ANTHONY, PAULA BRENSINGER, AND SETH D. MCELROY, PETITIONES : APPELLANTS
v.
2011 LEGISLATIVE : REAPPORTIONMENT COMMISSION, APPELLEE STATE REPRESENTATIVE ANGEL CRUZ, STATE REPRESENTATIVE W. CURTIS THOMAS, STATE REPRESENTATIVE ROSITA C. YOUNGBLOOD, STATE , REPRESENTATIVE JOHN P. SABATINA, JR., ANGEL ORTIZ, BRIAN EDDIS, JOSEPH F. WEST, SR., AND KAREN A. WEST, APPELLANTS
v.
2011 LEGISLATIVE : REAPPORTIONMENT COMMISSION, : APPELLEE JOSH SHAPIRO, LESLIE RICHARDS, DAYLIN LEACH, SAMUEL ADENBAUM, : IRA TACKEL, MARCEL GROEN, HARVY GLICKMAN, AND DAVID DORMONT, APPELLANTS
v.
2011 LEGISLATIVE : REAPPORTIONMENT COMMISSION, : APPELLEE SENATOR JAY COSTA, SENATOR LAWRENCE M. FARNESE, JR., SENATOR CHRISTINE M. TARTAGLIONE, SENATOR SHIRLEY M. : KITCHEN, SENATOR LEANNA M. , WASHINGTON, SENATOR MICHAEL J. STACK, SENATOR VINCENT J. HUGHES, SENATOR ANTHONY H. : WILLIAMS, SENATOR JUDITH L. : SCHWANK, SENATOR JOHN T. : YUDICHAK, SENATOR DAYLIN LEACH, : SENATOR LISA M. BOSCOLA, : SENATOR ANDREW E. DINNIMAN, : SENATOR JOHN P. BLAKE, SENATOR : RICHARD A. KASUNIC, SENATOR : JOHN N. WOZNIAK, SENATOR JIM : FERLO, SENATOR WAYNE D. : FONTANA, SENATOR JAMES : BREWSTER, AND SENATOR TIMOTHY J. SOLOBAY, APPELLANTS :
v.
2011 LEGISLATIVE : REAPPORTIONMENT COMMISSION, : APPELLEE TONY AMADIO AND JOE SPANIK, APPELLANTS
v.
2011 LEGISLATIVE : REAPPORTIONMENT COMMISSION, : APPELLEE RICHARD LATTANZI, MAYOR OF THE CITY OF CLAIRTON AND RICHARD : FORD, COUNCILMAN IN THE CITY OF CLAIRTON, APPELLANTS
v.
2011 LEGISLATIVE : REAPPORTIONMENT COMMISSION, : APPELLEE KATHRYN VARGO, JENNIFER GRAB, SANDRA WOLFE, ANTONIO LODICO, : EMILY CLEATH, DANIEL MCARDLE BOOKER, RACHEL CANNING, AND PATRICK CLARK, APPELLANTS V. : 2011 LEGISLATIVE : REAPPORTIONMENT COMMISSION, : APPELLEE



Appeal from the Legislative Reapportionment Plan of the 2011 Legislative Reapportionment Commission, dated June 8, 2012

The opinion of the court was delivered by: Mr. Chief Justice Castille

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

ARGUED: September 13, 2012

OPINION

This is the second set of direct appeals to this Court arising out of the work of the 2011 Legislative Reapportionment Commission ("LRC") of the Commonwealth of Pennsylvania.

Previously, we filed a per curiam order on January 25, 2012, and declared that the legislative redistricting plan filed by the LRC on December 12, 2011 (the "2011 Final Plan"), was contrary to law under Article II, Section 17(d) of the Pennsylvania Constitution, and in accordance with the directive in that constitutional provision, we remanded the matter to the LRC to reapportion the Commonwealth in a manner consistent with an opinion to follow. We filed our opinion on February 3, 2012. Holt v. Legislative Reapportionment Comm'n, 38 A.3d 711 (Pa. 2012) ("Holt I"). No party sought reconsideration or reargument. As a result of this Court's order and opinion, the LRC produced a second plan which it adopted on June 8, 2012 (the "2012 Final Plan"), and these consolidated appeals arise out of challenges to that plan. After consideration of the specific challenges forwarded by appellants, and the LRC's response, we now hold that the LRC's 2012 Final Plan is not contrary to law, and the appeals are dismissed.

I. Background

The substantive task of the LRC during decennial legislative redistricting is governed by Article II, Sections 16 and 17 of the Pennsylvania Constitution. Section 16 sets forth specific criteria the LRC must utilize in creating the legislative district map:

The Commonwealth shall be divided 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. Each senatorial district shall elect one Senator, and each representative district one Representative. Unless absolutely necessary no county, city, incorporated town, borough, township or ward shall be divided in forming either a senatorial or representative district.

PA. CONST. art. II, § 16. Section 17 further describes the redistricting procedure, and specifically provides that, once the LRC has adopted a plan, "any aggrieved person" may appeal directly to this Court. PA. CONST. art. II, § 17(d). Section 17 also commands that, if that aggrieved citizen "establishes that the final plan is contrary to law," this Court "shall issue an order remanding the plan to the commission and directing the commission to reapportion the Commonwealth in a manner not inconsistent with such order." Id.*fn1

By way of further background, in Holt I, we summarized the litigation over the 2011 Final Plan:

On December 12, 2011, the LRC approved its Final Plan by a vote of 4 to 1, with Senate Minority Leader Jay Costa dissenting.

Absent appeals within the thirty day period afforded by the Constitution, the Final Plan would have had force of law. See PA. CONST. art. II, § 17(e). However, twelve separate appeals from the 2011 Final Plan were filed by citizens claiming to be aggrieved, as is their constitutional right. See PA. CONST. art. II, § 17(d) ("Any aggrieved person may file an appeal from the final plan directly to the Supreme Court within thirty days after the filing thereof."). In each appeal, the appellants filed petitions for review, against several of which the LRC filed preliminary objections. The LRC also filed a prompt consolidated answer, responding to the first eleven petitions for review. This Court then directed briefing on an accelerated schedule; all parties timely complied. The Court reserved a special session to hear oral argument on January 23, 2012, in Harrisburg, five days after briefing, and we heard argument in nine of the appeals that day. . . .

Two days later, on January 25, 2012, this Court issued a per curiam order, declaring that the Final Plan was contrary to law, and remanding to the LRC with a directive to reapportion the Commonwealth in a manner consistent with this Court's Opinion, which would follow. See Order, 1/25/12 (per curiam) (citing PA. CONST. art. II, § 17(d)). Our per curiam order also directed that the 2001 Legislative Reapportionment Plan, which this Court previously ordered to "be used in all forthcoming elections to the General Assembly until the next constitutionally mandated reapportionment shall be approved," would remain in effect until a revised final 2011 Legislative Reapportionment Plan having the force of law is approved. See Order, 1/25/12 (per curiam) (citing PA. CONST. art. II, § 17(e) and Albert [v. 2001 Legislative Reapportionment Commission], 790 A.2d [989,] 991 [Pa. 2002]). That aspect of our mandate arose by operation of law; where a Final Plan is challenged on appeal, and this Court finds the plan contrary to law and remands, the proffered plan does not have force of law, and the prior plan obviously remains in effect.

Holt I, 38 A.3d at 719-21 (footnotes omitted). Justices Baer, Todd and McCaffery joined the majority opinion by this author in Holt I, Justices Saylor and Eakin each filed a concurring and dissenting opinion, and Justice Orie Melvin filed a dissenting opinion. Id. at 716-64.

After the Holt I decision was filed, Senator Dominic Pileggi and Representative Michael Turzai -- both members of the LRC by virtue of their positions as majority leaders of their respective caucuses -- filed suit in federal court seeking to enjoin this Court's directive that existing districts should be used in the 2012 election cycle and until the Court approved a constitutional reapportionment plan. In a February 8, 2011 order, the federal district court denied relief and concluded that the 2012 elections must proceed under the only existing map, the 2001 Plan. Pileggi v. Aichele, 843 F. Supp. 2d 584 (E.D. Pa. 2012).

Ultimately, after one public meeting, the LRC produced a new preliminary redistricting plan in April 2012. Timely exceptions, and alternative plans, were lodged, but the LRC ultimately adopted the preliminary plan as its 2012 Final Plan by a 4-1 vote on June 8, 2012, with LRC member, and Senate Minority Leader, Senator Jay Costa voting against the Plan. Appellants then filed petitions for review at thirteen separate docket numbers in this Court, all of which were consolidated for purposes of briefing, argument, and decision.

We consider the parties' arguments in light of our scope and standard of review, which was a central point of dispute in Holt I, leading the Court to discuss the appropriate review paradigm at some length. Our scope of review is plenary, subject to the restriction that "a successful challenge must encompass the Final Plan as a whole;" in addition, we will not consider claims that were not raised before the LRC. 38 A.3d at 733 (citing Albert, supra and In re Reapportionment Plan, 442 A.2d 661, 666 n.7 (Pa. 1981) ("In re 1981 Plan")). Our standard of review is defined by the Pennsylvania Constitution: the plan may be held unconstitutional only if the appellants establish that it is "contrary to law." 38 A.3d at 733 (citing PA. CONST. art. II, § 17(d)). In Holt I, we determined that the LRC's 2011 Final Plan was contrary to law because it did not comply with the requirements, set forth in Article II, Section 16 of the Pennsylvania Constitution, that legislative districts be "composed of compact and contiguous territory as nearly equal in population as practicable," and that political subdivisions should not be divided to form districts "unless absolutely necessary." PA. CONST. art II, § 16. This Court engages in a de novo, non-deferential review of the specific challenges raised by the appellants. 38 A.3d at 735-36. A final plan is not entitled to a presumption of constitutionality, but "enjoys the same status as any action or decision where the challenging party bears the burden; and here, the burden is upon appellants to show that the plan is contrary to law." Id. at 735.

II. Appellants and their Various Claims

A. The Appellants

As we stated in Holt I, our Constitution "permits any aggrieved person to file an appeal from the LRC's plan directly to this Court." Id. at 724-25 (citing PA. CONST. art. II, § 17(d)). As with appeals from the 2011 Final Plan, the instant appeals from the 2012 Final Plan were brought by various registered Pennsylvania voters, both Republican and Democrat. And, as with the 2011 Final Plan litigation, the lead appeal in the instant matter, captioned Holt v. LRC and docketed at 133 MM 2012, was filed by "voters in the Commonwealth of Pennsylvania who live in the Commonwealth's wards, municipalities, and counties the [2012 Final Plan] split, often multiple times, to form Senate and House of Representatives Districts [which the voters claim was] in violation of Article II, Section 16." Holt Brief at 8. The Holt appellants hail from Lehigh, Philadelphia, Allegheny, Delaware, Chester, Washington, Montgomery and Cumberland Counties.

Appellants in the appeal docketed at 39 WM 2012 ("Costa") are LRC member, and Senate Minority Leader, Senator Jay Costa and the entire Democratic Senate Caucus. Appellants in 40 WM 2012 ("Amadio"), Tony Amadio and Joe Spanik, and appellants at 41 WM 2012 ("Lattanzi"), Richard Lattanzi and Richard Ford, who are the mayor and a councilman of the City of Clairton, in Allegheny County, join in and incorporate the arguments in Costa. Appellant in 129 MM 2012 ("Kim"), is an elected official and voter in Dauphin County, who joins the Costa brief and also forwards additional arguments specific to Harrisburg, Pennsylvania. Appellants in 42 WM 2012 ("Vargo") are voters from Westmoreland, Allegheny and Cumberland Counties. Pro se appellant Dennis J. Baylor, at 126 MM 2012 ("Baylor"), is a voter in Berks County. Appellants in 127 MM 2012 ("Sabatina") are elected officials and voters from Philadelphia and Reading, Pennsylvania. The appellants in 128 MM 2012 ("Schiffer") are voters from Delaware County. In the appeal docketed at 130 MM 2012 ("Brown"), appellants are residents and elected officials of West Chester and Phoenixville, in Chester County. At docket number 131 MM 2012 ("Doherty"), appellants are residents of Philadelphia, Montgomery, Bucks, Lehigh and Fayette Counties, and Audubon, Pennsylvania. Appellants in 132 MM 2012 ("Cruz") are voters and elected officials in Philadelphia County. Finally, appellants in 134 MM 2012 ("Shapiro") are voters and elected officials from Montgomery and Delaware Counties who join the Costa brief and add further argument in their own brief.

In all of these appeals, the LRC is appellee. The LRC does not dispute the standing of any of the appellants.*fn2

B. Claims Raised by Appellants In their current appeal, the Holt appellants raise a global challenge to the LRC's 2012 Final Plan. They argue that the plan as a whole, like its predecessor, is contrary to law because it contains numerous political subdivision splits that are not absolutely necessary, in contravention of Article II, Section 16 of the Pennsylvania Constitution. According to appellants, the alternate Holt plan maintains "a roughly equivalent level of population deviation . . . . while employing significantly fewer political subdivision splits" as directed in Holt I, and proves that the LRC's 2012 plan still violates Section 16. Holt Brief at 15 (quoting from Holt I, 38 A.3d at 753). The Holt appellants claim that any differences between the 2011 Final Plan and the 2012 Final Plan are irrelevant for purposes of the constitutional analysis; any marginal reduction in splits from one plan to the next is attributable only to the relaxed population equality standard prospectively approved in Holt I. The Holt parties submitted a revised alternate plan that also allowed a greater range of deviation from the ideal population of each House and Senate district, as contemplated by this Court's Holt I opinion. Holt Brief at 7; 38 A.3d at 761. The Holt plan uses a maximum deviation from ideal population of 7.87% for Senate Districts and 7.75% for House Districts, as compared to the higher percentage deviations in the LRC's 2012 Final Plan (7.96% in Senate Districts and 7.88% in House Districts). Holt Brief at 15.

The Holt appellants further argue that the LRC could have easily achieved a substantially greater fidelity to all of the mandates of Section 16 -- compactness, contiguity, and integrity of political subdivisions -- yet it failed to do so. According to the Holt appellants, the LRC could have reduced total splits (counties, municipalities, and wards) as follows:

2012 Final Plan Holt Alternate Plan HOUSE 221 86 SENATE 37 17 Holt Brief at 16; LRC Brief at 27-28. The Holt appellants allege that the extra splits in the LRC's plan "serve no legitimate purpose." Holt Brief at 20.

The Holt appellants also argue that the 2012 Final Plan violates Section 16's requirements of compactness, using the "Polsby and Popper method"*fn3 for quantitatively measuring this aspect of the plan in terms of "dispersion, perimeter and population ratios." Holt Brief at 28. According to the Holt appellants, the average Polsby and Popper score for the Senate districts under the 2012 Final Plan is 0.275, as compared to .351 under the revised Holt alternate plan, and in the House, the average score for the 2012 Final Plan is 0.277, as compared to 0.372 under the Holt alternative. "The Revised Holt Plan therefore offers Senate districts that are more than 27% more compact than the LRC's map and House districts that are more than 34% more compact than the LRC's map. Moreover, the Revised Holt Plan achieved a greater degree of compactness in 40 out of 50 Senate Districts and 161 out of 203 House Districts." Id. at 28-29. The Holt appellants argue that their alternate plan demonstrates that the "compactness problems" of the 2012 Final Plan are not unavoidable. Id. at 30. Finally, the Holt appellants argue that the 2012 Final Plan has not resolved earlier problems with inadequately contiguous territory, and the new map still has seven unnecessary non-contiguous House districts.

The Holt appellants assert that in light of what they perceive to be the LRC's repeated and willful failure to comply with constitutional requirements, this Court should remand with instructions that the LRC adopt a plan that contains no more political subdivision splits than those contained in the Holt plan, and that complies with Section 16's mandate that the district map be comprised of "compact and contiguous territory as nearly equal in population as practicable."

The Costa appellants similarly challenge the 2012 Final Plan as a whole, and argue that the LRC's maps continue to violate constitutional mandates, while serving instead to preserve the partisan results of political gerrymandering.*fn4 The Costa appellants begin by noting that, in Pennsylvania, the "Republican Party currently controls both the Senate and the House. In the Senate, 30 seats are held by Republicans and 20 seats are held by Democrats. Of the 203 House seats, 110 are held by Republicans and 91 are held by Democrats. The number of registered voters in the Commonwealth includes approximately 4 million registered Democrats and approximately 3 million registered Republicans." Costa Brief at 3 (footnotes omitted).

The Costa appellants identify various alleged unnecessary splits and problems in contiguity and compactness exhibited by the 2012 Final Plan, and assert that the LRC failed to consider the Holt I opinion, public testimony, and alternate plans presented to it.*fn5 In addition, according to appellants, the LRC rejected Senator Costa's proposed amendment to the plan, which demonstrated how splits of ten counties -- Beaver, Berks, Bucks, Butler, Cumberland, Chester, Franklin, Warren, Washington and Westmoreland -- could easily be eliminated, thus reducing the total number of county splits by almost 20 percent while still maintaining population deviation ranges identical to those in the Republican Caucus Plan, which was the plan actually adopted as the LRC's 2012 Final Plan. Costa Brief at 23. The Costa appellants argue that these additional splits are not necessary, and were included in the LRC maps for no legitimate constitutional reason. According to the Costa appellants, the LRC acted in furtherance of inappropriate political objectives, in order to maintain incumbencies, preserve or improve partisan political performance and to ensure Republican party majority rule in both houses of the General Assembly, irrespective of the party affiliations and preferences of Pennsylvania voters.

Appellant Kim joins in the Costa brief for a global challenge, but adds argument specific to Dauphin, Perry and Cumberland Counties, which, under the LRC's new map, are split into three senatorial districts even though Cumberland County's entire population could be contained in one. Kim notes that, although the 2012 Final Plan restores the City of Harrisburg to its historical place in the 15th Senatorial District, a result for which she advocated in Holt I, the new plan "significantly reduces the importance of Dauphin County's community interests by also including Perry County," and "dilutes the voice of Harrisburg's voters." Kim Brief at 2. Kim challenges ...


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