PENN HILLS TOWNSHIP REDIVISION, Pa. Super. Ct., Judgment, Law, casemine.com

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Attorney(S)

Louis R. Paulick, for appellant. Edgar J. Cooke, for appellees.

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Factual and Procedural Background

This appeal arises from the Court of Quarter Sessions of Allegheny County's dismissal of exceptions filed by certain citizens and taxpayers challenging the report of a Commission appointed to redivide the Township of Penn Hills into wards. The Commission's plan was confirmed by the court, and the appellants appealed to the Superior Court. The record had previously been remanded by the Supreme Court to the Superior Court for further consideration.

Legal Issues Presented

Whether the Commission's plan for redividing the township into wards, which was based on voter registration rather than population, complies with the constitutional "one man, one vote" standard applied "as nearly as practical."
Whether Article IX, § 11 of the Pennsylvania Constitution, effective April 23, 1968, requires dismissal of the Commission if its report is rejected.
Whether Article IX, § 11 applies retroactively to proceedings under the Act of June 24, 1931, P.L. 1206, as amended, governing township redivision.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lower Merion Twp. Appeal, 215 Pa. Super. 363, 257 A.2d 264 (1969)	Constitutional requirement for reapportionment is based on population, not solely on voter registration.	The court reaffirmed that reapportionment must be population-based and rejected the Commission's voter registration basis.
Reynolds v. Sims, 377 U.S. 533 (1964)	"One man-one vote" standard for election districts applies to local government.	Used as the foundational standard for evaluating the constitutionality of the ward redivision plan.
Avery v. Midland County, 390 U.S. 474 (1968)	Extension of "one man-one vote" principle to local government districts.	Supported the application of federal equal protection principles to the township's ward division.
Kirkpatrick v. Preisler, 394 U.S. 526 (1969)	"As nearly as practical" standard for population equality in redistricting cannot be reduced to a fixed formula.	Comparison of acceptable population variances in redistricting plans; court noted the instant case's 20% variation was excessive.
Wells v. Rockefeller, 394 U.S. 542 (1969)	Population variance limits in redistricting plans.	Referenced to illustrate that the instant case's population variance was significantly higher than previously rejected plans.
Burns v. Richardson, 384 U.S. 73 (1966)	Use of voter registration basis for reapportionment is permissible only under peculiar circumstances and must not substantially differ from population-based results.	The court distinguished the Hawaii case and rejected the Commission's reliance on registration figures due to lack of similar circumstances.
Ellis v. Mayor City Council of Baltimore, 352 F.2d 123 (4th Cir. 1965)	Registered voter basis is problematic due to fluctuations and potential for political manipulation.	Used to highlight concerns about the instability and fairness of basing reapportionment on registration rather than population.
Macungie Twp. Annexation Case, 213 Pa. Super. 313, 248 A.2d 58 (1968)	Constitutional provisions operate prospectively and do not apply retroactively unless expressly stated.	Applied to reject appellants' argument that Article IX, § 11 applies retroactively to invalidate ongoing proceedings.
Perkins v. Slack, 86 Pa. 270 (1878)	Principle that constitutional provisions operate prospectively unless language or purpose indicates retroactivity.	Supported the court's conclusion that the new constitutional provision did not apply retroactively.

Court's Reasoning and Analysis

The court began by acknowledging that the Commission's ward alignment was based on voter registration figures rather than population, which contravenes the constitutional requirement that reapportionment be population-based. The court relied on prior Pennsylvania precedent and the U.S. Supreme Court's "one man-one vote" principle established in Reynolds v. Sims and extended to local governments in Avery v. Midland County.

The court noted that population variances in the Commission's plan reached as high as 20%, far exceeding variances rejected in federal cases such as Kirkpatrick v. Preisler and Wells v. Rockefeller. It further explained that reliance on voter registration is problematic due to fluctuations in registration numbers, particularly increases during presidential election years and subsequent declines, as well as susceptibility to political manipulation, as detailed in Burns v. Richardson and Ellis v. Mayor City Council of Baltimore.

The court rejected the appellants' claim that rejecting the Commission's report would require dismissal of the Commission under Article IX, § 11 of the Pennsylvania Constitution, finding this argument without merit based on the prospective application of constitutional provisions, as supported by the Macungie Twp. Annexation Case and Perkins v. Slack.

Finally, the court directed the Commission to utilize federal decennial census population data to prepare a new ward redivision plan before the 1971 municipal election, emphasizing that population figures are readily available and appropriate for constitutionally compliant reapportionment.

Holding and Implications

The court held that the Commission's plan for redividing the Township of Penn Hills into wards, based on voter registration rather than population and exhibiting population variances as high as 20%, does not meet the constitutional "one man-one vote" standard as applied "as nearly as practical."

The court rejected the claim that Article IX, § 11 of the Pennsylvania Constitution requires dismissal of the Commission if its report is rejected, and held that this constitutional provision does not apply retroactively to the present proceedings under the Act of June 24, 1931, P.L. 1206, as amended.

The direct effect of this decision is to remand the case to the lower court with instructions to require the Commission to prepare a new ward redivision plan based on population data in compliance with constitutional standards prior to the 1971 municipal election. No new precedent beyond the application of established equal protection principles was set.

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Penn Hills Township Redivision.

Constitutional Law — Equal protection clause — "One man, one vote" — Application as nearly as practical — Redivision of township into wards — Alignment based upon voter registration and not population — Extent of variations — Evidence — Judicial notice — Increase in registration figures in presidential election years and decline thereafter — Article IX, § 11, of Constitution of Pennsylvania — Application not retroactive — Act of June 24, 1931, P.L. 1206, as amended.

1. The "one man, one vote" standard for election districts is to be applied "as nearly as practical".

2. In this proceeding, involving the redivision of a township into wards, in which it appeared that the alignment of wards contained in the plan of the commission appointed by the court was based upon voter registration and not population; and that the variations from one ward to another compared to population figures were as high as 20%; it was Held that the plan did not meet the constitutionally prescribed standard.

3. Judicial notice can be taken of the increase in registration figures in presidential election years and the decline thereafter as a result of strike offs from the registration rolls of those who failed to vote at the two subsequent elections.

4. The contention that, if the report of the commission were rejected, the commission would have to be dismissed by virtue of Article IX, § 11, of the new Constitution, effective April 23, 1968, was Held to be without merit.

5. Article IX, § 11, of the Constitution, is not applicable retroactively to proceedings under the Act of June 24, 1931, P.L. 1206, as amended, for the redivision of a township into wards.

Argued November 12, 1969.

OPINION BY WATKINS, J., March 19, 1970:

This is an appeal from the decree of the then Court of Quarter Sessions of Allegheny County dismissing exceptions of certain citizens and taxpayers and confirming absolutely the report of the Commission appointed by the Court, In Re: Redivision of the Township of Penn Hills, Allegheny County, Commonwealth of Pennsylvania, into Wards. Appeal to this court followed.

It is admitted that the alignment of wards contained in the plan of the Commission was based upon voter registration and not population. We held in the Lower Merion Twp. Appeal, 215 Pa. Super. 363, 257 A.2d 264 (1969), at page 366, that: "The Constitutional requirement for reapportionment is, as has always been the case, based upon population and while registration may be an indication of the need, it should not be the sole criterion nor the basis upon which reapportionment is had."

It is, however, important to examine some of the cases in the Federal Courts where the problem has been discussed and met. The Supreme Court of the United States has determined what is now known as the "one man-one vote" standard for redistricting. Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). This applies to local government. Avery v. Midland County, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968).

The Supreme Court of the United States has also indicated that the "as nearly as practical" standard cannot be reduced to a fixed mathematical formula. Kirkpatrick v. Preisler, 394 U.S. 526, 22 L. Ed. 2d 519, 89 S. Ct. 1225 (1969). In that case, the plan of redistricting was rejected where the average variation from the ideal population was 1.67% while in Wells v. Rockefeller, 394 U.S. 542, 22 L. Ed. 2d 535, 89 S. Ct. 1234 (1969), the plan rejected had a variation of 6.67%. In the instant case, the claimed variations go as high as 20%.

In Burns v. Richardson, 384 U.S. 73, 93, 96, 16 L. Ed. 2d 376, 391, 393, 86 S. Ct. 1286 (1966), the legislature of Hawaii was reapportioned on the basis of voter registration figures rather than population. It was approved and the court explained in detail the peculiar circumstances that existed in the Hawaii situation, saying at page 93: "In view of these considerations, we hold that the present apportionment satisfies the Equal Protection Clause only because on this record it was found to have produced a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis." However, the court continued at page 96, saying: "We are not to be understood as deciding that the validity of the registered voters basis as a measure has been established for all time or circumstances, in Hawaii or elsewhere."

The court seemed to be straining in this case as indicated by what the opinion writer, Mr. Justice BRENNAN, said at pp. 92, 93 concerning the evil of the use of registration figures for reapportionment: "Use of a registered voter or actual voter basis presents an additional problem. Such a basis depends not only upon criteria such as govern state citizenship, but also upon the extent of political activity of those eligible to register and vote. Each is thus susceptible to improper influences by which those in political power might be able to perpetuate underrepresentation of groups constitutionally entitled to participate in the electoral process, or perpetuate a `ghost of prior malapportionment.' Moreover, `fluctuations in the number of registered voters in a given election may be sudden and substantial, caused by such fortuitous factors as a peculiarly controversial election issue, a particularly popular candidate, or even weather conditions.' Ellis v. Mayor City Council of Baltimore, 352 F.2d 123, 130 (C.A. 4th Cir. 1965). Such effects must be particularly a matter of concern where, as in the case of Hawaii apportionment, registration figures derived from a single election are made controlling for as long as 10 years."

We can take judicial notice of the increase in registration figures in Presidential election years and the decline thereafter as a result of strike offs from the registration rolls of those who failed to vote at the two subsequent elections.

In the Burns case, supra, Ellis v. Mayor and City Council of Baltimore, 352 F.2d 123 (1965), was cited with approval. In that case the Court of Appeals of the Second Circuit considered a plan of redistricting councilman seats in the City of Baltimore, Md. on the basis of registration figures. The court compared the variances from one district to another compared to population figures. It objected to a variance of 3% in one case where the population figures would produce only a variance of 1.37%.

In the instant case, the claimed variations are much higher than the cases where the plans were rejected by the Federal Courts and at the very least raise serious doubt and suspicion that the plan falls far short of the "as nearly as practical" standard and make it politically suspect. See also, Kirpatrick v. Preisler, supra.

We hold, therefore, that the plan does not meet the "one man-one vote" standard established by the Supreme Court of the United States to meet the requirements of the 14th Amendment of the Constitution of the United States.

The contention of the appellants that if the report of the Commission is rejected, the Commission must be dismissed by virtue of Article IX, § 11 of the new Constitution effective April 23, 1968, is without merit.

In the Macungie Twp. Annexation Case, 213 Pa. Super. 313, 248 A.2d 58 (1968), this court held as follows at page 319: "We do not accept appellants' argument that this provision, although it became effective immediately upon adoption, has a retroactive effect so as to invalidate all annexation proceedings pending at the time it became operative. Constitutional provisions operate prospectively and do not operate retrospectively unless the language used or the purpose of the provision indicates that operation was intended. Perkins v. Slack, 86 Pa. 270 (1878)." We also held in that case that the Constitution did not indicate such an intention.

The Macungie case dealt with annexation under the Act of June 24, 1931, P.L. 1206, as amended, 53 P. S. § 55401 et seq. However, this is the same Act under which the present proceedings of Redivision of Wards was instituted. We agree with the court below that: "While the Lower Macungie Township Annexation Case (No. 1), supra, differs from the instant case in that proceedings in the Macungie case were completed when Proposal 6 was adopted by the Legislature, it is to be noted that the Superior Court in refusing to accept the appellants' argument that Proposal 6 had a retroactive effect, included not only annexation proceedings that had been completed but annexation proceedings which were pending. That reasoning ties in with the further proposition of law that constitutional provisions operate prospectively and do not operate retrospectively unless the language used or the purpose of the provision indicates that operation was intended. Perkins v. Slack, 86 Pa. 270."

As a practical matter the Commission has the machinery of the Federal decennial census to provide the population figures without additional cost to the township. These figures shall be available to the Commission so that the redivision on the basis of population can be determined before the municipal election of 1971.

The plan of the Commission for the Redivision of the Township of Penn Hills, Allegheny County, Pennsylvania into Wards is rejected. The record is remanded to the court below with the direction that it be referred to the Commission to proceed with the Redivision on the basis of population in accordance with this opinion.

PENN HILLS TOWNSHIP REDIVISION