KELLY, J. (for remand to commission).
Under the provisions of article 4, § 6, of the Constitution of 1963, petitioners filed their "petition for review" requesting that this Court: (1) review the Austin-Kleiner plan which, pursuant to this Court's order, was adopted by the commission on legislative apportionment June 23, 1964, and under which plan the 1964 legislative elections were subsequently held; (2) authorize petitioners to take depositions of appropriate witnesses, including the members of the commission on legislative apportionment; (3) conduct a hearing in open court with opportunity for oral argument; (4) declare the plan in violation of the cited provisions of the Michigan Constitution of 1963 and the Constitution of the United States, and take the following action:
See PA 1964, pp 603-619. — REPORTER.
(a) Rescind the order of this Court dated June 22, 1964, and declare the plan void and of no effect, for any elections subsequent to the primary and general elections of 1964;
(b) Remand the plan to the commission and order that the commission prepare and adopt a new apportionment plan which complies with the requirements of the Michigan Constitution of 1963, interpreted in the light of the constitutional requirements and guidelines established by applicable decisions of the Supreme Court of the United States.
On January 14, 1965, this Court denied petitioners' motion for discovery. February 5, 1965, motion for reconsideration having been filed, this Court entered an order scheduling the cause for oral argument on May 11, 1965, and amending the January 14, 1965, order, as follows:
"Whether, and if so to what extent, petitioners' offer of proof should be granted and proof taken, may be briefed and will be decided after oral argument has been completed and considered."
Oral argument was held on May 11, 1965, and subsequent to said argument intervenors filed a rejoinder brief on June 21, 1965, and petitioners a surrejoinder brief on July 22, 1965.
The first question to be answered is: Should petitioners' offer of proof be granted and proofs ordered taken?
Defendants oppose petitioners' request, claiming: (1) "Petitioners' charge of political gerrymander approaches naivete" and, when the Con-Con records are considered, "the present allegations of partisan gerrymandering are curious, to say the least"; (2) "This Court should not presume to `outrun' the United States Supreme Court in formulating rules which the Supreme Court to date has declined to make"; (3) The petition is a "plea to engage in a fishing expedition"; (4) If this Court follows previous decisions of this Court the petition for discovery will be denied; (5) The disputed questions do not meet the test of relevancy and competency and the "intentions or motivations" of the commissioners are immaterial.
Constitutional Convention, 1961. — REPORTER.
Defendants' objection (1): Minimizing the charge of gerrymandering, defendant Secretary of State Hare states:
"Petitioners' charge of political gerrymander approaches naivete when it is considered that under Constitutional mandate the apportionment commission must be composed of four Democrats and four Republicans. Const 1963, art 4, § 6. It being constitutionally required that the commission be selected by the political parties, it would seem implicit that partisan political considerations enter into any product of the commission. If petitioners are on sound ground in contending that an unlawful partisan gerrymander is in the Austin-Kleiner plan, then perhaps the apportionment commission itself must fall as being a built-in gerrymandering device."
Intervening defendants, carrying forward defendant Hare's thought that we should expect and not be surprised with gerrymandering tactics, state: "The present allegations of partisan gerrymandering are curious, to say the least. The Con-Con records reveal some interesting things, however, which do not square with the present expressions of horror," and, to sustain their point, quote, among others, Constitutional Convention Delegate and Committee Chairman John Hannah, as follows:
"Mr. Chairman, members of the committee, I only want to reiterate the point that Judge Dehnke has made. This is a matter that received long and careful consideration by the committee. The committee felt very strongly that this apportionment commission should be, as he indicated, persons with strong political feelings, selected by the two political parties to do this specific job. * * *
"The State is divided into four districts and each party would select one member of the commission from each of the four districts. The reason for that is: in the view of our committee it is desirable that this commission first of all be partisan; secondly, that it be reasonably objective; and thirdly, that it have some knowledge of all of the areas of the State for which it is going to be responsible for drawing new district lines." Defendants' objection (2): Defendant Hare stresses the point under the heading "Austin-Kleiner contains no unlawful gerrymander" (emphasis ours), and states:
Official record, 2 Constitutional Convention 1961, pp 2027, 2800. — REPORTER.
"Since early in the last century when Governor Gerry was accused of devising legislative districts to accommodate his political needs, the lawfulness of such a practice has been debated. To this date no court has decreed that per se such an alignment of election districts is unlawful."
Intervenors also stress this point as follows:
"Whatever the Con-Con history, it is revealing that plaintiffs cite no precedent for the proposition that partisan gerrymandering, if proved, would constitute a violation of the Federal Constitution. Clearly, the courts have declined to so hold. * * *
"Clearly there is no basis for a conclusion that gerrymandering constitutes a Federal cause of action. What standards would be controlling are not remotely suggested by plaintiffs. No definitions are suggested. * * *
"This Court should not presume to `outrun' the United States Supreme Court in formulating rules which the Supreme Court to date has declined to make."
Defendants' objection (3): Claiming petitioners endeavor to engage in a "fishing expedition," intervening defendants set forth petitioners' claims under the heading "Alleged `Facts,'" as follows:
"Building surmise upon conjecture and sprinkling both with liberal doses of hindsight and circular reasoning ( e.g., the Democrats won so they must have gerrymandered; they gerrymandered to win), plaintiffs would `prove' an unlawful partisan gerrymandering.
"Plaintiffs scarcely bother to define the term — and since they deal without precedent, it is no wonder they do not.
"Essentially however, the `factual' grievances appear to be three (1) the Democrats won the legislature — handily; (2) some Republican incumbents were obliged to run against others in the primary; and (3) certain districts are irregularly shaped. Further allegations suggest a combination of these elements."
Defendants' objection (4): Defendants call to this Court's attention four of our recent decisions, claiming that if we follow same it will result in a rejection of the petition for discovery. A resume of the facts involved in those four cases and the holdings of this court follow:
Insealator, Inc., v. Wallace, 357 Mich. 233. This appeal involved the claim of a manufacturer's agent that the corporation not only refused to pay him commission but altered its books to disguise the fact it owed him the claimed amount.
In our decision, after calling attention to the fact that Court Rule No 35, § 6 (1945),[4] provided that the deposition of an officer of a corporation "may be used by an adverse party for any purpose," we held (pp 252, 253):
"The court offered to go through the depositions and make a ruling as to the admissibility of testimony therein. Insealator insisted that they should be admitted in their entirety under this rule. The court properly ruled them out on objection to the effect that they contained irrelevant and immaterial testimony. Opportunity was afforded counsel to use them to contradict or impeach. This counsel apparently did not care to do. No error exists by reason of their exclusion under these circumstances."
Banaszkiewicz v. Baun, 359 Mich. 109. This appeal involved a suit for specific performance of an alleged oral agreement under which decedent was to leave all of his property upon his death to plaintiff. In a 4-3 decision, this Court held (quoting syllabus
"There is no conflict of purpose between the so-called dead-man's statute barring testimony of an opposite party as to matters equally within the knowledge of a deceased person, and the court rules relative to discovery permitting depositions `of any person' as both are intended to aid in arrival at truth and justice in litigation, hence, there is no unfairness in permitting defendants and their counsel to know what plaintiff's claims are and the foundation therefor and, at the same time, not waive their right to bar plaintiff's testimony at the trial on matters equally within knowledge of deceased as to alleged oral agreement to leave property to plaintiff (CL 1948, § 617.65 [Stat Ann § 27.914]; Court Rules No 35, § 6a, Nos 40, 41 [1945])."
See, currently, CLS 1961, § 600.2160 (Stat Ann 1962 Rev § 27A.2160), GCR 1963, 302.1, 310, 311. — REPORTER.
In Schechet v. Kesten, 372 Mich. 346, we were confronted with the statute barring a physician from disclosing information he had obtained from a patient, and we held, in regard to discovery, interrogatories, and physician-patient privileges, as follows:
"Requirement of circuit judge of defendant physician that he answer interrogatories, put to him by plaintiff in action for libel and slander in report to credentials and executive committee of hospital in which defendant was chairman of department of surgery, which interrogatories required answers privileged from disclosure was reversibly erroneous, as the statutory privilege is an absolute bar even to the disclosure of the names of the patients not involved in the action (CL 1948, § 617.62 [Stat Ann § 27.911]; PA 1961, No 236, § 2157 [CLS 1961, § 600.2157 (Stat Ann 1962 Rev § 27A.2157)])." (Syllabus 2.)
Board of Education of Presque Isle Township School District No. 8 v. Presque Isle County Board of Education, 364 Mich. 605, presented the question of whether the school code had given to the county and State boards of education the power to attach or annex an inoperative school district to an operating district by direct order and subject only to winding up processes. In that case we held:
"A legislator's present recollection of what he understood as to the language enacted into law may not be used in interpreting the statute as enacted." (Syllabus 6.)
Defendants' objection (5): Intervening defendants state:
"Plaintiffs' assertion that due process requires `a determination of disputed questions of fact on the basis of evidence' is only partially correct. The disputed questions must be relevant and the evidence must be competent. We have previously demonstrated at length, without necessity for present repetition, that the matters which plaintiffs would prove have no legal relevancy. The State and Federal standards sought to be shown simply do not exist and there certainly is no right to introduce proofs which, if true, would not establish a cause of action. Moreover, there is no right to introduce incompetent proofs on any issue.
"The ultimate issue in this case is whether the Austin-Kleiner plan complied with necessary constitutional requirements. This is a matter which can and must be determined from the plan alone, and/or available public records or matters susceptible of judicial notice, and not from the professed intentions or motivations of one or more commissioners."
Our comment on these five objections of defendants follow in the same sequence as listed above:
Answer to objection (1): We do not share the view of the defendants that gerrymandering was expected or condoned, or that the people through their delegates created a plan that was an invitation to both parties to select their four best gerrymanderers, who would consider the welfare of the party above the welfare of the voter or the State.
Article 4 of the Constitution shows that the delegates selected a plan which, with its adherence to county, city, and township lines, compactness, rectangular or nearly uniform or square lines, et cetera, would make gerrymandering most difficult.
Const 1963, art 4, § 2. — REPORTER.
We believe that outstanding and dedicated Delegate John Hannah (President of Michigan State University), when he recommended that the commission consist of four Democrats and four Republicans, being "persons with strong political feelings," did so with the thought that each 4-member group would be capable of preventing the other one from indulging in gerrymandering.
Answer to objection (2): Petitioners answer the claim of defendants that if we would grant petitioners' request we would be outrunning the United States Supreme Court by calling attention to the fact that until Baker v. Carr (1962), 369 U.S. 186 ( 82 S Ct 671, 7 L ed 2d 629), claims regarding apportionment of State legislatures were not justiciable at all; that from a fair reading of recent cases one can only conclude that a plan which intentionally operates to nullify the fair and effective representation of members of one particular political party is as much a denial of equal protection of the laws as districts of grossly disparate population; that on March 15, 1965, the New York supreme court, New York county, in In re Orans' Petition, 45 N.Y. Misc.2d 616 ( 257 N.Y.S.2d 839), affirmed by 15 N.Y.2d 339 ( 258 N.Y.S.2d 825, 206 N.E.2d 854), held that gerrymandering constitutes a violation of the State's constitutional provisions, which were very similar to Michigan's; and that "The argument of defendant and intervening defendants that there is no law against gerrymandering suggests that although gerrymandering may be immoral, or unfair, or a sharp practice, nevertheless since there is no case law which says it is illegal, it should be condoned by this Court. The people of the State of Michigan are entitled to a higher standard of law."
Reynolds v. Sims (1964), 377 U.S. 533 ( 84 S Ct 1362, 12 L ed 2d 506); Fortson v. Dorsey (1965), 379 U.S. 433 ( 85 S Ct 377, 13 L ed 2d 290); Wright v. Rockefeller (1964), 376 U.S. 52 ( 84 S Ct 603, 11 L ed 2d 512).
It is not necessary for us to analyze or pass judgment on the presence or absence of Federal decisions in re gerrymandering. Suffice to say, there is no Federal decision that even intimates that this Court cannot or should not grant the petition if we deem it advisable.
Answer to objection (3): Petitioners' request is not a plea to be allowed to engage in a "fishing expedition" and is not limited by the three reasons set forth above by intervening defendants. This fact is established by petitioners' offer to prove the following:
"Austin and Kleiner and others who actually participated in the drawing of the Austin-Kleiner plan obtained and utilized extensive data and records of past voting results in each precinct, city, township, and county, specifically including the results of the 1962 State treasurer election, which data and records were compiled and tabulated by and with the support of the Democratic party and the International Union, UAW. The purpose of utilizing such data and records by Austin, Kleiner and their aides, was creation of an apportionment plan most favorable to the Democratic party and its candidates.
"Different variations of a plan with districts of equal population were drawn from time to time in the course of preparing the Austin-Kleiner plan, each of which was tested by application of such data and past voting records, and such plan was successively revised and redrawn in attempts to maximize Democratic party voting strength, or to minimize Republican party voting strength.
"The draftsmen of the plan, after its adoption, openly boasted of their success in achieving their objectives and also stated openly that they intended the plan as `a negotiating document' and had not expected to be able to get it adopted in its original form.
"The plan accomplishes such gerrymandering by apportioning the districts without any regard for political subdivision or natural or historical boundary lines, and by constructing unnaturally-shaped districts in order to join geographically separated concentrations of voters of one or the other party, or to split up certain of such concentrations.
"The intentional acts of malapportionment and gerrymandering for political advantage incorporated by the draftsmen of the plan include the following:
"(a) By deliberately joining areas which the 1962 election results showed to have voted for a particular party's candidates, the draftsmen drew five house districts in Genesee county which canceled out Republican voting strength there altogether. Based on the 1962 results, all five districts would have gone to Democratic party candidates, although Republicans pulled approximately 45% of the overall vote. The actual results of the 1964 contests in these districts were that all five seats went to Democrats, although Republicans polled 39% of the vote.
"(b) By contrast, the same technique of joining areas of known voting behavior was employed to maximize Democratic party voting strength in the five house districts in Kent county. There, the 1962 election results showed that two of the five seats would have gone to Democratic candidates while the Democratic party polled approximately 40% of the overall vote. In 1964 the Democrats won their two seats handily.
"(c) Similarly, the 10 house districts encompassing Oakland county (plus three townships of Genesee county) were drawn in such a way that the Republicans could count on five `safe' seats while polling, according to the 1962 election results, 60% of the vote. (The actual results of the 1964 contests in these districts were that the Republican candidates took four seats while polling 50% of the vote.) This was accomplished by dividing up cities so that areas of high Republican voting strength were impacted and extra Democratic pluralities could be added to areas of marginal Republican voting strength.
"(d) By crossing county lines to join together physically-separated cities which the 1962 election results showed to demonstrate Democratic party voting patterns, `safe' Democratic senate seats were created in the senate districts 33 and 34. District 33 was formed by separating the city of Manistee, the county seat of Manistee county, from the rest of its county and joining it with a group of counties extending south to include the city of Muskegon, 75 miles away. Similarly, the cities of Saginaw and Bay City, respectively the county seats for their counties, were joined together into district 34, with a few intervening townships from both counties, while the rest of the surrounding townships from both counties, were formed into a horseshoe-shaped district 35. Based upon 1962 election results, districts 33 and 34 would be Democratic seats, while the adjoining districts 35 and 36 would be Republican districts, although any other configuration which did not involve the joining of the cities would not have resulted in a Democratic district in either area. These four seats came out exactly as predicted in 1964, two Republican and two Democratic.
"(e) In the case of senate district 17, the city of Pontiac, the county seat for Oakland county, together with seven townships in the northwestern part of the county, was joined with all of Lapeer county in order to cancel out Republican voting strength in Lapeer county.
"(f) Other house districts were drawn in such a way as to split up parts of cities which were disclosed by the 1962 election results to be strong areas of Republican party voting, by dividing them into separate pieces and combining them with other cities for the purpose of diffusing and ultimately destroying the voting power of those concentrations, as in the case of house districts 31, 32, and 33, which cut into three parts the northwest quarter of the city of Dearborn, an area shown by the 1962 election results to have returned a high Republican vote.
"(g) In certain districts, such as house districts 43 and 51, townships where incumbent Republican legislators resided were unnaturally and unnecessarily detached from the rest of their counties and combined with territory containing another Republican incumbent in order thus to defeat one of them or force him to move away from his constituency."
Answer to objection (4): In 1931 this Court by Court Rule No 41 provided:
See, currently, GCR 1963, 302.1. — REPORTER.
"Any party to an action or suit may cause to be taken by deposition * * * at any time after action commenced and before trial, the testimony of any other party, or any person who has verified a pleading of another party, which is material and necessary in the prosecution or defense of the action or suit."
Two years later this rule was construed twice by this Court. Justice WIEST, in Nestle v. Fleming (1933), 262 Mich. 417, in construing this rule, stated (pp 418, 419):
"The party invoking the rule must definitely state the subject or subjects of intended inquiry and thus show the materiality and nature thereof, and may not, at the examination, go beyond such specifications.
"Right to take the deposition can be tested by motion to vacate the notice. The issue then is whether the reasons for the notice and the information sought disclose a bona fide need in framing an issue or preparing for trial. The examination must not be for the purpose of enabling one party to merely pry into the case of the other to learn its strength or weakness, but only to seek information essential to the framing of appropriate issues and preparation for trial thereof. * * *
"We must assume that the right accorded by the rule is invoked in good faith, and we cannot anticipate an abuse nor hold that possibility of abuse warrants inhibition of the right."
In Vincent v. Van Blooys, 263 Mich. 312, this Court commented on the fact that, while (p 314),
"Court Rule No 41 was adopted from the New York practice, * * * the case concerns a rule of court, not a statute, and the rule is an experiment in this State, no discourtesy can be imputed to this Court for failing to find and follow a precedent from the New York conflict.
"Mr. Ragland [on discovery before trial] adduces evidence of the advisability of a liberal construction (page 130). This Court, speaking through Mr. Justice WIEST, has departed from the narrow New York construction, and has taken the broader trail. Nestle v. Fleming, 262 Mich. 417.
"Aside from its advantage to a party in discovering the opponent's claim, the rule has a public purpose which should be served in its interpretation, arising from reducing the time of the trial by narrowing the issues, obtaining admissions of fact, fixing the claims of the parties when the incidents are fresh in their minds, and otherwise fostering accuracy and celerity of trial, and also from inducing settlements, which are made more easy when the respective claims are known. A rather liberal construction will obviate the necessity for taking the time of the court in haggling over the limitations of the examination. Experience will disclose the evils which may develop and suggest the remedy."
In Hallett v. Michigan Consolidated Gas Co. (1941), 298 Mich. 582, holding that rules relative to discovery should be liberally construed, we stated (p 592):
"Comparatively recent procedure for compelling discovery of the facts and circumstances of a controversy in advance of joining issue or in advance of trial is well established. * * * The recent trend and purpose of statutes and court rules is to provide accurate information in advance of trial as to the actual facts and circumstances of a controversy. We have already said such rules must be liberally construed. They should promote the discovery of the true facts and circumstances of a controversy, rather than aid in their concealment."
A majority of the present members of this Court during recent years have not only carried forward the liberal policy of the last 25 years but have extended it, earning for the State the reputation of being a leader among the States that advocate liberal use of discovery.
See GCR 1963, 301 et seq. — REPORTER.
The present request for discovery is vastly different from the discovery involved in the cases which defendants cite and to which we have referred above. We are not now deciding whether a plaintiff should have help in discovery as he seeks money judgment, or a defendant receive help as he prepares his defense but, rather, whether petitioners (34 influential citizens living in various parts of this State) should be given the opportunity to present evidence which they claim would prove that the plan this Court ordered adopted is not a plan of apportionment but rather a plan of malapportionment.
Previous decisions of this Court constitute no bar to petitioners' request if we deem it advisable.
Answer to objection (5): In reply to defendants' claim that "this is a matter which can and must be determined from the plan alone, and/or available public records or matters susceptible of judicial notice," petitioners answer:
"Fortson [ Fortson v. Dorsey, 379 U.S. 433 ( 85 S Ct 377, 13 L ed 2d 290)] states clearly that an apportionment scheme which does not disclose a mathematical disparity, nevertheless may be shown to `designedly or otherwise * * * operate to minimize or cancel out the voting strength of racial or political elements of the voting population.' Petitioners should be granted an opportunity to prove that the Austin-Kleiner Plan is such a scheme. The issue is primarily a factual one, yet this Court refused petitioners the right to present evidence and thereby place the facts before the Court. The proof required to establish such allegations must be substantial. Honeywood v. Rockefeller (ED N Y 1963), 214 F. Supp. 897; Wright v. Rockefeller (1964), 376 U.S. 52 ( 84 S Ct 603, 11 L ed 2d 512), affirming (SD N Y 1962) 211 F. Supp. 460. As indicated by the Honeywood Case, supra, `direct' evidence of the use of improper standards is the best evidence. To restrict petitioners to the official record of proceedings, as does this Court's order of February 5, 1965, prohibits obtaining such direct evidence, since the plan was not prepared in the councils of the commission."
When this Court on June 17, 1964, entered the order that voided this Court's adoption of the Hanna Plan under date of May 26, 1964, we directed the commission on legislative apportionment to "proceed to adopt a plan * * * in accordance with the constitutional requirements and guidelines provided by the United States Supreme Court in Reynolds v. Sims, 377 U.S. 533 ( 84 S Ct 1362, 12 L ed 2d 506) * * * requiring that the districting and apportionment of both houses of State legislatures shall be as nearly as practicable on an equal population basis."
In re Apportionment of State Legislature — 1964, 373 Mich. 247, 248. — REPORTER.
That our words "as nearly as practicable" were strictly interpreted is shown by defendant Hare in his brief where he states:
"Defendant Hare agrees that as a practical matter 100% mathematical precision in the drawing of legislative districts cannot be achieved. However, this must be the target of those who would apportion, and any built-in devices such as the county-line requirement, which impede achievement of this aim, must fail. It cannot be denied that a mandatory and arbitrary requirement that county lines be observed in an apportionment scheme will result in some deviation from equality of population among the districts."
Intervening defendants interpreted our order to mean: "Any disparity which is unnecessary and avoidable is inexcusable."
Sustaining the Austin-Kleiner Plan, defendants repeatedly throughout their briefs call attention to how nearly equal in population each district is with the other, resulting in population from a high of 207,094 to a low of 205,067 in the senate districts.
Petitioners, contending that other standards, such as the adherence to county and other political subdivision boundary lines, et cetera, were disregarded, ask us to consider the following from Reynolds v. Sims, 377 U.S. 533, 577-579 ( 84 S Ct 1362, 12 L ed 2d 506):
"By holding that as a Federal constitutional requisite both houses of a State legislature must be apportioned on a population basis, we mean that the equal protection clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable. We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement. * * *
"A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. Valid considerations may underline such aims. Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering."
It is not our intention in this opinion to pass judgment upon the dispute between petitioners and defendants as to standards. However, we do agree with petitioners' contention that the mere dividing of the State into districts of equal population does not and would not condone, justify, or excuse a method or system where, by the use of previous election results, districts can be formed giving one political party advantage over the other.
Petitioners commence their brief under the heading "statement of facts," as follows:
"By way of introduction to this statement of facts, the unique nature of this proceeding must be emphasized. Despite the fact that the proceedings raise disputed questions of fact, this Court has not allowed the presentation of proofs offered by petitioners in support of their fact allegations. There is no record except the pleadings. Therefore, this proceeding resembles one in which a motion for summary judgment in favor of the defendants had been granted, and now the most favorable view must be taken of petitioners' allegations of fact and offer of proof. Thus, where relevant, those allegations of fact and the offer of proof in support thereof will, for purposes of this brief, be regarded as if actually proved."
In spite of petitioners' contentions, defendants have only presented this Court with a general denial. We have searched the brief of defendant and the briefs of intervening defendants in vain for any specific denial of petitioners' claim, such as the planners' use of voting results as they changed and re-changed the boundary lines of districts in their endeavor to create districts most favorable to the Democratic party and its candidates.
Petitioners in their reply brief commented upon defendants' seemingly avoidance, as follows:
"Petitioners have offered direct proof of the fact that Austin and Kleiner and their aides who drew the plan used past records of partisan election results, specifically the 1962 State treasurer's contest, to successively revise the districts to maximize Democratic party voting strength and to minimize Republican party voting strength. This offer of direct proof is noticeably missing from the categories of proofs which intervenors castigate as inadequate."
We are not impressed with defendants' claim that even conceding that petitioners could prove what they claim, such proof would not be relevant or competent. Conceding for the sake of argument that after considering said proof this Court would consider it irrelevant or incompetent, then certainly this Court can reject it without the fear of improper influence that might result had it been submitted to a jury.
We agree with defendants that the ultimate issue in this case should not be determined from the "professed intentions or motivations of one or more commissioners." The test should not be what they intended to do, nor what they would have liked to have done, but, rather, what did they do.
Conclusion
We are granting petitioners' request for the right to take proof and depositions because defendants have failed to present a convincing reason why petitioners' request should not be granted. In addition, we are conscious of the fact that the present apportionment plan never received a majority vote of approval of the commissioners, nor a unanimous vote of approval of this Court; that unusual, hasty, and brief consideration was given to the plan because of pending elections; that we have always given liberal construction to the rule of discovery and have held, "We must assume that the right accorded by the rule is invoked in good faith, and we cannot anticipate an abuse nor hold that possibility of abuse warrants inhibition of the right."
May 26, 1964: Majority vote of our Court disapproved the Austin-Kleiner Plan and approved the Hanna Plan;
June 11, 1964: Legislature by special enactment postponed primary election from August to September 1 (PA 1964, No 280 [CL 1948, § 200.51 et seq. (Stat Ann 1965 Cum Supp § 6.686[1] et seq.)]);
June 15, 1964: United States Supreme Court decision in Reynolds v. Sims, 377 U.S. 533 ( 84 S Ct 1362, 12 L ed 2d 506);
June 17, 1964: This Court's order giving the commission until 5:00 p.m. on June 19, 1964, to adopt a plan meeting the requirements of Reynolds v. Sims, with the provision that if the commission should be unable to agree upon a plan within the time stated individual members of the commission would have until 12:00 noon the following day, June 20th, to submit individual plans to the Court, and a final provision that "further oral arguments or briefs will not be permitted by the Court";
June 19, 1964 (Friday): Commission met pursuant to Court order;
June 20, 1964 (Saturday): Commission not being able to agree by majority vote on any plan by Saturday noon, one plan by the Democratic members of the commission and several plans by the Republican members thereof filed;
June 22, 1964 (Monday): Our Court ordered the Austin-Kleiner Plan to be adopted. (See 373 Mich. 247 and 373 Mich. 250.)
Nestle v. Fleming, supra.
An order will be issued providing that the depositions will be taken under the direction and supervision of the presiding circuit judge of the county of Ingham; that said depositions will be taken as soon as possible and continued on to completion without delay; that 24 copies of the report of such hearing on depositions will be filed with the clerk of the Supreme Court and placed before the members of this Court, so that this Court can reach final determination in sufficient time to not unduly impede the coming 1966 elections.
BLACK, J. (for immediate mandate to commission).
By this paragraph 8 proceeding the Court's original jurisdiction has been duly invoked. Our impending action or inaction is due to guide Michigan's governmental destiny; crucially at least for the coming second half of this decennium. And what we do now will determine largely whether the Court has served or failed to serve both of the Constitutions to which it is supremely and unitedly bound.
All references in this opinion to paragraphs by number are to those which appear in section 6 of article 4 of the Constitution of 1963. Paragraph 8 is quoted infra.
The mentioned proceeding was submitted to us May 11th last on thoroughgoing briefs and oral arguments. Though many less important matters have in the interim come to submission and decision, this one remains undetermined either as to procedure or substance. In the meantime the clock is ticking off that limited number of days and weeks left for final districting and apportionment of the legislature in time for the elections of 1966. We have failed so far to comply with the primary mandate of said paragraph 8; referring to our obligation to order the commission on legislative apportionment to perform its duty, that is, "proceed to district and apportion the senate and house of representatives according to the provisions of this Constitution." That duty, when it is finally performed and upheld on "review" under paragraph 8, will effect the districting and apportionment of the legislature for the remainder of such decennium. It should be performed in pursuance of order to be entered here, and due time for such performance should be allowed. But time is fleeting; hence these purposeful presents.
For my view of what was intended by the phrase, "according to the provisions of this Constitution," see 372 Mich. 448-456. By force of the National supremacy clause "this Constitution" includes the equality clause of the Fourteenth Amendment as well as our own equality clause. The latter appears in article 1, § 1 of the Constitution of 1963.
Now then, the above considered: From and after our coming November session I mean to share no longer, with other members of the Court, the responsibility for further delay of orderly disposition of this gravely consequential proceeding. Censure and upshots ignored, the present motion for entry of an essential procedural order will be tendered to the clerk for filing at that time and copies will be sent to all involved counsel.
No one, bent other than on pretense, can deny the pressures and counter-pressures of politics to which this Court has been subjected since paragraph 7 and now paragraph 8 have required action of the Supreme Court of Michigan. Last year two members of the Court voted first (May 26, 1964; 372 Mich at 480-482) to effectuate under paragraph 7 the so-called Hanna plan. Then (June 22, 1964; 373 Mich. 250-255) the two voted to effectuate under paragraph 7 the so-called Austin-Kleiner plan; which last plan was the one which the Court ordered into effect for the 1964 legislative elections (see 372 Mich at 480-482; 373 Mich at 248-255). Even the baited subject of amount of salary, to be paid in the future to Supreme Court Justices, appeared in a measure which was proposed in and passed by the senate during the current legislative session, and then was held up by the house. And this is to say nothing of what is rancorously implicit as well as explicit in the previous deadlocks of the half Republican and half Democratic commission on legislative apportionment. With respect to those deadlocks we were called upon to act, and did act provisionally (see In re Apportionment of Legislature — 1964, 372 Mich. 418, 461; 373 Mich. 247), under paragraph 7 of said section 6.
See SB 364, 1965. — REPORTER.
The circumstances now are progressively emergent. The question of need under the Constitution for timely judicial action is foremost. The next is that the Court should dispel promptly any notion that its members are shrinking from procedural and substantial decisions on account of fear of personal or political consequences.
Pursuant to the procedure set forth in said paragraph 8, I stand for entry of an order directing the commission to do what is required of it and what it has not yet done, that is, "district and apportion the senate and house of representatives according to the provisions of this Constitution." That task is assigned to the commission by the Constitution; whereas our task under said section 6 is limited to supervision and seeing firmly to it that the commission proceeds to conclusion of its due duties in accordance with constitutional requirements.
Bear in constant mind that the present invocation of original jurisdiction is before us under paragraph 8 of said section 6; whereas last year's proceeding arrived under and was determined pursuant to provisional paragraph 7 of said section 6 (see In re Apportionment of Legislature — 1964, all opinions and orders cited supra). Now we have before us an out-and-out judicial proceeding; a proceeding which is attended automatically by those broad equitable powers which, since the handing down of Baker v. Carr, 369 U.S. 186 ( 82 S Ct 691, 7 L ed 2d 663), the courts have utilized and are now utilizing as they go about this business of supervising, with applicable constitutional limitations in mind, the assigned duties of those who must district and apportion legislative assemblies.
Paragraphs 7 and 8 (Const 1963, art 4, § 6) read as follows:
"If a majority of the commission cannot agree on a plan, each member of the commission, individually or jointly with other members, may submit a proposed plan to the Supreme Court. The Supreme Court shall determine which plan complies most accurately with the constitutional requirements and shall direct that it be adopted by the commission and published as provided in this section."
"Upon the application of any elector filed not later than 60 days after final publication of the plan, the Supreme Court, in the exercise of original jurisdiction, shall direct the secretary of State or the commission to perform their duties, may review any final plan adopted by the commission, and shall remand such plan to the commission for further action if it fails to comply with the requirements of this Constitution."
Refer now to the Court's orders of June 17 and 22, 1964 ( 373 Mich. 247, 248, 249, 254, 255). Then the time limit was critical. The commission was directed to adopt the Austin-Kleiner plan for the imminent 1964 elections, subject expressly to any paragraph 8 proceeding such as is before the Court instantly. The concluding paragraph of the June 17th order, along with the final two paragraphs of the supplementing order of June 22d, stress the temporally ordered character of the Austin-Kleiner plan. And quoted paragraphs 7 and 8 of said section 6 made it so in any event. To quote the aforesaid paragraph of the June 17th order ( 373 Mich. 248, 249):
The so-called apportionment decisions, on which the Court had been waiting since March 5, 1964 ( 372 Mich. 418), were not handed down until June 15, 1964 ( Reynolds v. Sims through Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 533-765 [ 84 S Ct 1362-1489, 12 L ed 2d 506-652]) and the deadline date given us by the secretary of State ( 373 Mich. 250, 251, 253) was due to arrive in three days.
"Any plan adopted by the commission on legislative apportionment or, in event said commission is unable to agree upon a plan, any plan thereafter directed to be adopted by this Court shall be subject to the provisions of paragraphs 6 and 8 of said section and article: Provided, however, That because of the necessity of insuring orderly election procedures for the year 1964, in no event will the litigation permitted under paragraph 8 of said section 6 affect, alter, change, or amend the plan adopted by the commission under either paragraph 5 or paragraph 7 of said section 6, insofar as 1964 legislative elections are concerned."
I hold (a) that it is the constitutionally exclusive duty of the commission on legislative apportionment to district and apportion the senate and house of representatives; (b) that that duty cannot, under said paragraph 8 or otherwise, be taken over by this Court without violating the plain directions which appear in said section 6 of article 4; (c) that the commission on legislative apportionment has not as yet performed its duty for the entire remainder of the present decennial period, and (d) that it is our peremptory responsibility under said paragraph 8 to instruct the commission as follows:
1. To proceed anew with such work and deliberations as will enable the commission to district and apportion the senate and house of representatives according to now ascertainable as well as applicable constitutional requirements, and to do so pursuant to the procedures that are exacted by said section 6;
2. To complete the work thus required of the commission within 60 days from and after the date of entry of such order.
Our order should additionally provide:
3. In event of another deadlock of the commission, continuing through expiration of such 60-day period, that the secretary of the commission should report such fact promptly to this Court with accompanying petition for instructions whereby that deadlock may be broken by such mandatory order as the Court may enter pursuant to its broad powers as on mandamus to a State officer, and
4. For specific retention of jurisdiction over the present proceeding until some "final plan" is reviewed here and found consonant with constitutional requirements.
SUMMARY.
First: There remains time for contemplative work and deliberately effective action by the commission, provided we direct the commission — now — to proceed. Since the commission arrived at its timepressured stalemate last year, a selective if constitutionally circumscribed discretion has been confided, to the districting and apportioning authorities of the respective States, by the mentioned apportionment decisions of the Federal Supreme Court. This should render the commission's task much less difficult.
Second: We should not presume that the commission will not — given time as above — agree upon and adopt a plan according to its prescribed duty. This is especially so now that controlling guidelines, formerly in bitterly contested legal doubt, have become an understood part of our Constitution by the immediate force of section 1 of the first article thereof and the final force of article 6 of the National Constitution. Nevertheless, if it should turn out that a majority of the commission, aided thus by time and supreme authority, again cannot agree, this Court can and should break the deadlock by peremptory order framed generally to the procedure which is set forth in our general election law when two or more persons, being candidates for the same constitutional office, have received an equal number of votes. A public drawing of lots, to determine what 7 members of the commission are to vote upon that necessary "final plan," will take care of any such possible repetition of disagreement.
See CLS 1961, § 168.551 (Stat Ann 1956 Rev § 6.1851). — REPORTER.
Third: It is said that the Court should proceed now to "review," principally upon depositions to be taken, the provisionally effected Austin-Kleiner plan. I respectfully suggest that we cannot do so. The Austin-Kleiner plan is not a "final" one we may review under said paragraph 8. No "final plan" has as yet been adopted for want of a "concurrence of a majority of the members of the commission." See paragraphs 5, 6, and 8 of said section 6, and the absence of the word "final" from paragraph 7. Thus, by operation of paragraph 8 and the timely institution of this original proceeding, the question of the constitutionality of the Austin-Kleiner plan has become moot. What this Court needs, prior to "review" under paragraph 8, is that which has not as yet come into being, a "final plan."
Now if the Court should attempt "review" of the provisionally adopted and nonfinal Austin-Kleiner plan, and for such purpose should authorize the taking of what bids fair to become a politically contentious and trenchantly sensational series of discovery depositions, any such movement sidewise would require constant supervision of such depositional taking on expectably regular motions and orders. Worse, it would consume more and more nonexpendable weeks and months of time between this date and the deadline of next June. It would — Michigan politics considered — foreclose all chances of final "review" under paragraph 8 and final effect of any final plan prior to such deadline. And it would disgust the people of Michigan the more with their Supreme Court.
I vote for prompt entry of an order as outlined above.
Since the foregoing declaration of intention to file and serve was communicated to other members of the Court, Justice SOURIS has written again that section 6 of said article 4, along with just about all of the critical rest of said article 4, is unconstitutional. See Justice SOURIS' opinions of last year, 372 Mich. 418, 461-469, and 373 Mich. 247, 257-262. At that time comment was unnecessary. Now it is imperative lest a gymnastically swinging majority of this Court is induced to take over the cliff, into the abyss of one-party partisanship, that which the Constitution refers to as the "legislative power of the State of Michigan."
Now I think all reasonable viewers of the Constitution of 1963 (distinguishing them purposely from those feverishly intense liberals who look exclusively to Washington, or in lieu thereof to their own manufactured dixits, for "the rule of law") will agree that the people of a State, choosing so to do, may validly provide by their Constitution that an appointed commission, rather than the legislature, shall regularly district and apportion the legislature of that State. The people of Michigan have done so, by said section 6, and no specific clause or word of that section is pointed out as being offensive to any other constitutional provision. It is simply said that section 6, procedural entirely in its nature, is so intertwined with earlier sections of substance (said to be wholly invalid) that all are inseparable "and that the constitutional invalidity of 1 or more of said sections invalidates the remainder." (Quotation from Justice SOURIS' former opinion, 373 Mich at 259.)
Let us examine this argument; an argument which, to the time of 1964 writing, was pressed upon the Court by no one excepting Justice SOURIS. In a preliminary way, I must observe that it really is just a matter of accidental coincidence that this motion to butcher-cleave section 6 from our Constitution would, if granted, leave a grateful as well as gleeful Democratic legislature pretty much free to district and apportion itself at leisurely will, just as was so disgracefully known over the years when a Republican legislature was continuously charged and continuously failed with that duty. Sirrah, it must be said again that the Supreme Court of Michigan is loftily separated from partisan politics.
The question of severability depends in the last analysis upon the will of the people themselves; not upon the fragmented and abstruse utterances of convention delegates who, even as selectively and restrictively quoted by Justice SOURIS, touched neither directly nor indirectly upon that precise question (see Bacon v. Kent-Ottawa Authority, 354 Mich. 159, and citations therein contained). To test the question of severance of section 6 one need but point out that the section pertains exclusively to constitutional procedure and not to constitutional substance. It is fully operative with or without any preceding article 4 section of substance provided the following portion of section 1, 2 and 3 of said article 4 (with which no Justice dare quarrel) is regarded as constitutionally intact. Such portion reads:
"The question in interpreting a constitution is not so much how it was understood by its framers as how it was understood by the people adopting it." 11 Am Jur, Constitutional Law, § 84 page 707. For the new text, see 16 Am Jur 2d, Constitutional Law, § 88, p 274.
See, also, the copious citations appearing in Lockwood v. Commissioner of Revenue, 357 Mich. 517, commencing at 567.
"Sec. 1. The legislative power of the State of Michigan is vested in a senate and a house of representatives.
"Sec. 2. The senate shall consist of 38 members to be elected from single member districts at the same election as the governor for four-year terms concurrent with the term of office of the governor.
"Sec. 3. The house of representatives shall consist of 110 members elected for two-year terms from single member districts apportioned on a basis of population as provided in this article. The districts shall consist of compact and convenient territory contiguous by land."
Now I am unable to find anything in section 6 which prevents due application thereof to any plan of districting and apportionment of the Michigan legislature which the commission, going on with its work under current guidelines, may decide to adopt and place in effect, subject of course to review, for constitutional test, under paragraph 8 of the section. So there is nothing difficult about the point raised by my Brother SOURIS. All we need do is weigh his conclusion that section 6 is inseparable from that which immediately precedes it and, therefore, that section 6 cannot be made operative and sufficient to accomplish its procedural purpose. If he is right, and I suggest he is not, then this Court has been fooling around with unconstitutional procedure, under said paragraphs 7 and 8, ever since February 4, 1964, that being the date of filing here of the first of the paragraph 7 plans. See details, 372 Mich at 419.
So far as concerns my Brother's allegation, which I now reduce in paraphrase to save a wearisome number of words, that one voting for the instrument in 1963 would have voted the other way had he believed the so-called 80-20 formula would be held subordinate to the equality clause of the first article thereof, it is sufficient to say that that kind of reasoning, if majority-accepted, would require that the Court annihilate either the whole of the Constitution of 1963, or at very least all of article 4 thereof. The latter course would mean government without a legislature with the Supreme Court really supreme. I shrink from such heady stuff.
Further, when Justice SOURIS says:
"In short I do not believe the people of this State would have delegated the apportionment of legislative power to commissioners, neither elected by the people nor selected by any of the people's elected representatives, but, instead selected by the State organizations of the major political parties, except for the fact that the proposed constitution permitted those commissioners to function only within rigid limitations imposed by constitutionally stated mathematical formulae.";
I feel obliged to rejoin that I in turn "do not believe" the people ever would have delegated the apportionment of legislative power to the legislature, again that is. (See article 5, § 4, Const 1908, and the amendment thereof which was ratified at the general election of November 4, 1952.) Assuming that each of us now may state his beliefs and disbeliefs as testimony to the way a majority of those voting viewed the new instrument in April of 1963, I do not believe that a voting majority of the electors would have voted for the proposed constitution had it not included section 6 or some separate-from-the-legislature counterpart thereof. Surely my Brother forgets that the people of Michigan learned, over a long period of years, one thing the hard way, that is, they could not trust any legislature to district and apportion itself according to any validly imposed constitutional principle or plan which might collide with self-perpetuation in office.
This question of severability is no point of constitutional interpretation at all. It is simply a political question; whether a majority seated here wants the constitutionally appointed commission to district and apportion the legislature hereafter, or whether it wants the legislature restored to that body's former position of substantial control over its own political destiny. Which is to say in short shrift that I view with disfavor any and all attempts to strike down, for no reason of prima facie legal value, any part of any Constitution.
I stand as before for entry of an order as outlined above.
ADAMS, J. (for remand to commission).
I agree that this matter should be remanded to the commission on legislative apportionment. Not until June 15, 1964, with its decision in Reynolds v. Sims, 377 U.S. 533 ( 84 S Ct 1362, 12 L ed 2d 506), did the United States Supreme Court state even the basic standards to be followed in apportionment of State legislatures. Chief Justice Warren recognized this fact, saying (p 559):
"Of course, in these cases we are faced with the problem not presented in Gray — that of determining the basic standards and stating the applicable guidelines for implementing our decision in Baker v. Carr." (Emphasis suplied.)
Gray v. Sanders, 372 U.S. 368 ( 83 S Ct 801, 9 L ed 2d 821). — REPORTER.
369 U.S. 186 ( 82 S Ct 671, 7 L ed 2d 629). — REPORTER.
On June 17, 1964, we instructed the commission on legislative apportionment to devise a plan in accordance with the standards and guidelines furnished by the United States Supreme Court. The commission was allowed until 5 p.m., Friday, June 19th, to adopt such a plan. In the event the commission failed to reach agreement within that time, the individual members were allowed to submit plans by 12 noon of the next day. This brief period was dictated by the impending 1964 elections. The secretary of State had informed this Court that orderly elections would be impossible unless a plan was ordered and placed in effect by Thursday, June 25, 1964. See In re Apportionment of Legislature — 1964, 373 Mich. 250, 253.
The four Democratic members of the commission had foreseen the overriding guideline in Reynolds v. Sims and had, on May 11, 1964, submitted to this Court the alternate Austin-Kleiner plan based upon the formula of one man-one vote. The four Republican members of the commission apparently had not foreseen this development. At any rate, they did not submit a plan in accordance with that formula. During the brief time allowed the commission to attempt to devise a plan in accordance with Reynolds v. Sims, the Democratic members made no revisions or changes in the alternate Austin-Kleiner plan they had submitted May 11, 1964. The Republican members were unable to devise a plan that met the Federal standard.
It may be proved that the alternate Austin-Kleiner plan is the only feasible one for districting the State legislature in accordance with Federal standards. However, I believe the entire commission should be afforded an opportunity to consider the standards and guidelines furnished by the United States Supreme Court and to devise the best plan it can. It did not have that opportunity in the brief time given it in June of 1964.
While the United States Supreme Court iterates and reiterates that "population is * * * the controlling consideration in the apportionment of seats in the particular legislative body" ( Reynolds v. Sims, supra, 581), the Court does recognize other standards and guidelines which either are to be or may be applied. Those standards and guidelines can best be determined from a thorough reading and rereading of Reynolds v. Sims. It may be helpful, however, to point out that the Court does not approve gerrymandering. These quotations from the majority opinion in Reynolds v. Sims should suffice:
"The existing apportionment, and also to a lesser extent the apportionment under the Crawford-Webb act, presented little more than crazy quilts, completely lacking in rationality, and could be found invalid on that basis alone." Ibid, 568. (Emphasis supplied.)
"Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering." Ibid, 578, 579.
"And a State may legitimately desire to construct districts along political subdivision lines to deter the possibilities of gerrymandering." Ibid, 581. (Emphasis supplied.)
Going to the question of permissible State standards, it is to be noted that the Court said:
"A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme." Ibid, 578.
Recently, in WMCA, Inc., v. Lomenzo, 382 U.S. 4 ( 86 S Ct 24, 15 L ed 2d 2), the United States Supreme Court affirmed the judgment in WMCA, Inc., v. Lomenzo (DC SD NY), 238 F. Supp. 916. Of this action, Mr. Justice Harlan stated:
"The three-judge court * * * rejected contentions that apportioning on a basis of citizen population violates the Federal Constitution, and that partisan `gerrymandering' may be subject to Federal constitutional attack under the Fourteenth Amendment. In affirming this decision, this Court necessarily affirms these two eminently correct principles."
I do not regard the affirmance in Lomenzo as a definitive statement of the position of the United States Supreme Court on gerrymandering, especially in view of Reynolds v. Sims, supra, and Fortson v. Dorsey, 379 U.S. 433, 439 ( 85 S Ct 498, 13 L ed 2d 401). In this latter case, the Court stated:
"It might well be that, designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population. When this is demonstrated it will be time enough to consider whether the system still passes constitutional muster. This question, however, is not presented by the record before us."
At any rate, it seems clear that a State may forbid political gerrymandering, and I interpret the provisions of the Michigan Constitution with regard to compactness, shape, et cetera, as being precisely for that purpose. Though the Federal standards are overriding and must be followed, I see no reason why the standards and provisions in our own State Constitution should not also be applied if it is possible to do so. I do not regard the failure of the 80-20 formula as having destroyed these standards. The commission should apply them, if at all possible, always remembering that the United States Supreme Court said:
"We hold that, as a basic constitutional standard, the equal protection clause requires that the seats in both houses of a bicameral State legislature must be apportioned on a population basis." Reynolds v. Sims, supra, 568.
I will vote in favor of a suitable order to remand to the commission on apportionment.