IN RE APPORTIONMENT-TUSCOLA CNTY-2001
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED APRIL 25, 2002
IN RE APPORTIONMENT OF TUSCOLA
COUNTY BOARD OF COMMISSIONERS—2001
____________________________________
NORMA BATES,
Petitioner-Appellant,
v
No. 120250
TUSCOLA COUNTY APPORTIONMENT
COMMISSION,
Respondent-Appellee.
_________________________________
PER CURIAM
Following
the
2000
census,
the
Tuscola
County
Apportionment Commission reapportioned the districts for the
Tuscola County Board of Commissioners under MCL 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 NW2d 841 (2001).
In all other
respects, leave to appeal is denied.
I
The
procedure
for
apportioning
county
districts is established by 1966 PA 261.
a
five-member
apportionment
commission
The statute creates
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
candidates in the last election.
their
Secretary
of
State
MCL 46.403.1
The Secretary of State provided the necessary census
information
to
the
county
on
April
11,
apportionment commission met several times.
1
2001,
and
the
On May 18, it
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 MCL 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
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
leave
to
appeal
Petitioner has filed an application for
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 NW2d 615 (1982), we held that the maximum allowable
2
Judicial review is available under MCL 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.
3
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 US 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
NW2d
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
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 256 (emphasis added).]
Similarly, in In re Apportionment
Legislature—1982, we concluded:
of
the
State
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 141 (emphasis
added).]
4
making the parenthetical range part of the requirement for
permissible population divergence.
In re Apportionment of
Wayne Co—2001, 248 Mich App 92-93.
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
58,266,
County
had
a
population
of
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
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
___; ___ NW2d ___ (Docket No. 235339, issued April 12, 2002).
5
population divergence question in the Court of Appeals, nor
did she do so in her application for leave to appeal to this
Court.
filed
However, after the decision in the Wayne Co case, she
a
“supplement”
to
the
application
challenging
the
apportionment plan on this population divergence question for
the first time.
District
2
She argued that the plan was invalid because
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
constitutional standards.
by
those
amounts
met
federal
In the local government context,
Abate approved a plan with an 11.9 percent divergence, and
Mahan v Howell, 410 US 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
6
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 US 184, n 1.
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 US 319.
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
population
standard
established
meets
by
the
Wayne
equal
Co
Apportionment—1982. In that regard the petition for review is
denied.6
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 MCL 46.601 set forth in Kizer v Livingston
Co Bd of Comm’rs, 38 Mich App 239; 195 NW2d 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 MCL 46.401, there is no justiciable
controversy before us.
7
Pursuant to MCR 7.317(C)(3) the clerk is directed to
issue the judgment order forthwith.
CORRIGAN , C.J., and WEAVER , KELLY, TAYLOR , YOUNG , and MARKMAN ,
JJ., concurred.
CAVANAGH , J., would deny leave to appeal.
8
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