Alexander v. Taylor

¶1concurring specially:

¶2¶ 1 The United States Supreme Court has decided that issues of the sort now before us are of a justiciable nature. See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)(involving reapportionment of State of Tennessee General Assembly). The United States Supreme Court has also unequivocally determined that the United States Constitution leaves with the States, including a State’s judicial branch in appropriate circumstances, the primary responsibility for apportionment of their federal congressional and state legislative districts. Growe v. Emison, 507 U.S. 25, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993)(three-judge federal district court panel required to defer to state court’s timely efforts to redraw legislative and congressional districts). The Oklahoma Constitution at Article 7, § 7(a) provides in pertinent part that “[t]he District Courts [of the State of Oklahoma] shall have unlimited original jurisdiction of all justiciable matters-” Further, the Oklahoma Constitution at Article 7, § 4 reposes in this Court the appellate jurisdiction to review the decisions of our District Courts. The simple fact is that the Oklahoma state courts and an appropriate federal court have concurrent subject matter jurisdiction over the controversy presently before us. It would be .wrong, therefore, for this Court to rule favorably on Appellants’ request (made at page four of their June 20, 2002 response brief in this case) that we merely vacate the lower court’s judgment entered in this matter and “allow the three-judge [panel for the] Federal District Court for the Western District of Oklahoma to adopt a new congressional plan for use in this year’s elections.” Such a course might be the easier one for this Court to follow, but it would not be the course charted by the United States Constitution, the Constitution of the State of Oklahoma, or the laws of this State or Nation.

¶3¶ 2 Title 2 U.S.C. § 2c (2000) provides as follows:

In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative (except that a State which is entitled to more than one Representative and which has in all previous elections elected its Representatives at Large may *1214elect its Representatives at Large to the Ninety-first Congress).

¶4As I understand the import of the above federal statute the five congressional House of Representative Members from OHahoma that will be elected by virtue of the upcoming election cycle are supposed to be elected from districts “established by law”. As everyone is aware, the current districts that have been in place for about ten years can no longer be used. This is so because OHa-homa is losing a Representative — we are going from six to five — and there are presently six districts rather than five.

¶5¶ 3 I recognize, as I am sure my colleagues on this Court do also, that it was the legislative and executive branches of our State government that had, within their respective roles in the passage and approval of a valid law, the initial and primary responsibility for promulgating a law accomplishing congressional redistricting. I also recognize that no such law was passed by both houses of our State Legislature and approved by the Governor during the recently concluded legislative session. Such recognition is in no way intended to denigrate the co-equal legislative or executive branches of OHahoma’s government, but merely to point out that without court intervention at this juncture no valid congressional redistricting will occur prior to the upcoming election cycle because, practically, there is no reasonable chance that the legislative and executive branches will have the opportunity to again revisit the issue in a timely manner. Although I do not relish having to be involved in the process of congressional redistricting, I simply do not believe I have the luxury of merely passing this matter off on some other court. In that the District Court had subject matter jurisdiction of a justiciable controversy this Court has the duty and responsibility to review the lower court’s judgment that was entered.

¶6¶4 I am authorized to state that Justice Hodges joins in the views expressed herein.

¶7dissenting in part.

¶8¶ 1 I concur in the court’s opinion insofar as it holds that the district court had subject matter jurisdiction and that the State Election Board is not an essential party to the action. Its absence is not an impediment to granting relief. I dissent from today’s approval of the district court’s drawing of OHa-homa’s congressional districts. This case is about neither jurisdiction nor testing the constitutional orthodoxy of legislation. Here the parties camouflage legislative nonfeasance by manipulating the judiciary into filling a political vacuum with a judicially-created district-ing plan. The law does not allow the judiciary to be a roving commission, filling such political voids. Because no party in this lawsuit established that federal congressional districts must be drawn by anyone — much less by this court — and the judiciary should not intrude upon areas where there are no cognizable injuries to be redressed, I recoil from any holding which dignifies this dispute by raising it to a redressible claim.

¶9I

¶10THE ANATOMY OF LITIGATION

¶11¶2 The difficulty of determining “plaintiffs” and “defendants” in this “lawsuit” should give the court pause in assuming that a cognizable claim exists. In the original petition, dated January 29, 2002, plaintiffs Alexander and Snipes sued Governor Frank Keating, members of the OHahoma State Election Board, Stratton Taylor (the President Pro Tempore of the OHahoma State Senate) and Larry E. Adair (Speaker of the OHahoma House of Representatives), all in their respective official capacities. Plaintiffs, as registered voters with an interest in participating in the 2002 elections for members of Congress from the State of OHahoma, sought “injunctive relief to ensure that the State of OHahoma has a constitutional redistricting plan in place in time to comply with the filing deadline for congressional elections in OHahoma.” They based their claim on Article 1, § 2 of the U.S. Constitution, as amended by § 2 of the Fourteenth Amendment. For reasons I will discuss in Part II, the petition should have been dismissed for failure to state a claim for which relief may be granted.

¶12¶ 3 Among other various interventions and realignments of the parties in this case, the Election Board officials were dismissed as *1215defendants, and Governor Keating, a Republican, switched from a defendant to a plaintiff, separating himself from defendants Taylor and Adair, both Democrats. These shifts took place presumably to align more clearly the dominant political interests against one another, lest any court manage to mistake this case for anything more than partisan bickering.

¶13II

¶14FAILURE TO STATE A COGNIZABLE INJURY AND REDRESSIBLE CLAIM

¶15¶ 4 Plaintiffs argue that Art. I, § 2 of the U.S. Constitution, as amended by § 2 of the Fourteenth Amendment, necessitates court action in this case. In my roughly fifty years in the law, I have become fairly familiar with the United States Constitution and the jurisprudence interpreting it. I am unable to make the jump from Art. I, § 2⅛ command that “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state ...” and the Fourteenth Amendment to the claim that this (or any other) court must draw such districts when they do not exist. And they clearly do not exist.

¶16¶ 5 Once the results of 2000 decennial census — particularly, that the number of representatives to which Oklahomans are entitled to elect decreased from six to five — were made known, the Oklahoma Congressional Redistricting Act of 1991, 14 O.S.2000 §§ 5.1 et seq., became functus officio1— necessarily obsolete and immediately invalid. This leaves Oklahoma capable of electing five representatives, but with no congressional districts. The judiciary’s function is to subject districting plans that are in effect to constitutional testing under the Marshall Doctrine of judicial review. Here, there is nothing to test but legislative vacuum! I remain unconvinced that without congressional districts, the resulting situation — election at-large for each congressional seat — while likely unpalatable to all here involved, is unconstitutional on any grounds. Neither plaintiffs-appel-lees nor defendants-appellants bothered to mention why an at-large election for all five congressional seats would be illegal.

¶17¶ 6 It is no more my job to attempt to craft a cognizable claim than it is to remedy a nonexistent injury. But for the sake of argument and legal education I will attempt to imagine what possible injury this case was meant to redress. First, I recognize that 2 USCS § 2a(c)(5) states that “Until a State is redistricted in the manner provided by the law thereof after any apportionment, ... if there is a decrease in the number of Representatives and the number of districts in such State, exceeds such decreased number of Representatives, they shall be elected from the State at large.” Perhaps if the parties gave this statute any thought (and no evidence of any such thought exists) they felt that 2 USCS § 2c repealed this statute by implication.2

¶18¶ 7 Perhaps the parties were encouraged in this reading by a three-judge federal panel which read these possibly overlapping stat*1216utes this way in Shayer v. Kirkpatrick,3 Shayer was summarily affirmed by the Supreme Court,4 and this vague swipe is the nearest the Court has come to interpreting the two statutes. Its inconclusive approval is insufficient evidence that federal law mandates a division into districts rather than an at-large election.

¶19¶8 Several reasons bolster such a belief. First, repeals by implication are not favored.5 Second, Shayer was not a petition for certio-rari, but an appeal from a Federal District Court panel, which obligated the Court to decide the matter in some way. Third, summary affirmations of cases with multiple issues may hold little and frequently hold nothing of precedential value.6 In Mandel v. Bradley7 the Court held that, “because a summary affirmance is an affirmance of the judgment only, the rationale of the affir-mance may not be gleaned solely from the opinion below.”8

¶20¶ 9 Mandel created a two-step test for courts to apply in determining the quantum of precedential weight, if any, of the Court’s summary dispositions. First, the lower court must establish exactly what issues were presented in light of all the facts in the prior case-. Second, the court must determine if the Supreme Court necessarily decided those issues when it summarily disposed of the case.9 In an enlightening concurring opinion, Justice Brennan wrote that state and federal judges hoping to glean information from a summary affirmation must determine that the affirmation ... “not even arguably [rests] upon some alternative ... ground. The judgment should not be interpreted as deciding the constitutional questions unless no other construction of the disposition is plausible.”10 It is eminently plausible that the Court’s affirmance of Shayer could have rested on any number of other grounds. I therefore decline to follow the Shayer v. Kirkpatrick opinion’s construction of the federal statutes at issue.

¶21¶ 10 Rather, I read the provisions of 2 USCS § 2c to hold that they prohibit a legislature from deliberately designing a redistricting plan which would elect at-large representatives, but find them silent about *1217forcing a court affirmatively to create districts when the legislative nonfeasance results in the plainly constitutional regime of at-large elections. Public policy and judicial independence counsel such a reading. Since the effect of the 2000 census was to immediately invalidate the 1991 congressional districts and precipitate at-large elections in accordance with the terms of 2 USCS 2a(c)(5), and there is no clear command for a sine qua non requirement to divide states with multiple congressional representatives into districts, I cannot accede to the court’s view that a legally redressible claim or counterclaim exists.

¶22Ill

¶23DE NOVO STANDARD OF REVIEW FOR CONSTITUTIONAL ISSUES

¶24¶ 11 The court is also in error by assigning excessive deference to the trial court’s order. It adopts the equity standard of review. This standard falls short of the federal minimum for constitutional issues. The latter require de novo review.11 Originating with the 1920 case of Ohio Valley Water Co. v. Ben Avon Borough,12the so-called Ben Avon doctrine requires full judicial review when a constitutional issue is raised.13 Some commentators speculate that the Ben Avon doctrine has been extinguished gradually through numerous inconsistent Supreme Court decisions.14Nonetheless, the Supreme Court has never expressly overruled the doctrine, and courts continue to and are bound to apply if.15 Despite the parties’ failure to prove a constitutional injury, constitutional issues are clearly alive and well in this case.

¶25¶ 12 When a court reviews the rulings or reasoning of a trial court de novo, it gives little or no deference to the trial judge. The reviewing court’s objective is not limited to ascertaining whether the lower court erred. “As such, it is not only at liberty, but is required, to comb the record in search of the facts of the case, the reasonable inferences from those facts, the law applicable to those facts, and proper inferences to be drawn from those facts.”16 In 1991, Justice Black-mun eloquently described the benefit of de novo review:

Independent appellate review of legal issues best serves the dual goals of doctrinal coherence and economy of judicial administration. District judges preside alone over fast-paced trials: Of necessity they devote much of their energy and resources to hearing witnesses and reviewing evidence. Similarly, the logistical burdens of trial advocacy limit the extent to which trial counsel is able to supplement the district judge’s legal research with memoranda and briefs. Thus, trial judges often must resolve complicated legal questions without benefit of ‘extended reflection [or] extensive information.’- Courts of appeals, on the other hand, are structurally suited to *1218the collaborative juridical process that promotes decisional accuracy. With the record having been constructed below and settled for purposes of the appeal, appellate judges are able to devote their primary attention to legal issues. As questions of law become the focus of appellate review, it can be expected that the parties’ brief will be refined to bring to bear on the legal issues more information and more comprehensive analysis than was provided for the district judge. Perhaps most important, courts of appeals employ multi-judge panels that permit reflective dialogue and collective judgment.17

¶26The record indicates that this was certainly a “fast-paced” trial, and the Ben Avon doctrine commands us to exercise de novo review of the exigent constitutional issues.

¶27IV

¶28THE CRUCIAL IMPORTANCE OF JUDICIAL NEUTRALITY IN DEALING WITH POLITICAL ISSUES

¶29¶ 13 Judges act without authority and erode whatever faith the public still carries in the insulation of the judiciary from the political process when they limit themselves to choose between two proposals for redistricting congressional seats both obviously laden with partisan advantage. The reapportionment process has been recognized by many observers as politics at its most heated.18 Indeed, since judicial redistricting'“is inevitably an exposed and sensitive” task, it “must be accomplished circumspectly, and in a manner ‘free from any taint of arbitrariness or discrimination.’ ”19

¶30¶ 14 Even if I were convinced that the Shayer v. Kirkpatrick interpretation of 2 U.S.C.S. §§ 2a(c)(5) and 2(c) was indeed appropriate (or that the Supreme Court’s nebulous affirmation of that case could be accepted as precedential authority for the view that districts must indeed be drawn), I would nonetheless disagree with the court’s approval of the trial court’s approach and reverse the trial court’s adoption of a party-sponsored plan as a judicial abnegation of political neutrality.

¶31¶ 15 The costs of potentially compromising the political neutrality of the court system far outweigh any benefits gained by simply choosing from ready-made and obviously partisan plans. Put simply, even if a federal mandate compelling courts to apportion districts did exist, the court must do so in a scrupulously neutral manner, free of any appearance of political influence. This would likely mean drawing districts neither party has suggested based on clearly definable, neutral criteria.20 I am most certainly aware of Justice Ginsburg’s teaching that “[T]he slim judicial competence to draw district lines weigh heavily against judicial intervention in apportionment decisions....”21 But when courts claim this reluctance to intrude on a legislative process in order to shift the burden of drawing districts to the political parties who bring suits before them, the reputation costs incurred by punting to a political party are simply intolerable.

¶32*1219V

¶33MY PROPOSED DISPOSITION OF THIS CONTROVERSY

¶34¶ 16 In sum, if I were deciding this case, I would declare the claims and counterclaims in this controversy to be irredressible for want of any law to which judicial testing of constitutional orthodoxy may be appropriate, and I would invite the federal three-judge panel (or any other court drawing districts) to revisit this important issue. Even if I were convinced that this court is under a constitutional mandate to draw districts for Oklahoma, in an attempt to keep the judiciary above reproach, I would most certainly avoid deferring to either of two party-sponsored plans. I am not unduly critical of the court’s approval of the Governor’s plan, nor do I counsel the court to adopt the Senate plan; rather, I rise today to condemn the decisional process by which these irredressi-ble claims came to be decided. I do not invite this or any court ever to be bound by any tendered party-sponsored plan laden with excisable partisan bias, however slight.22

¶35¶ 17 It is only when courts discipline the parties involved by refusing to function as a safety valve for political actors (who increasingly favor using the judiciary as a forum for resolving their disputes) that they will truly feel compelled to negotiate a solution on their own. The court has no business cleaning up this political mess, and I retreat from any such enterprise.