Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED APRIL 25, 2002
IN RE APPORTIONMENT OF TUSCOLA
COUNTY BOARD OF COMMISSIONERS—2001
____________________________________
NORMA BATES,
Petitioner-Appellant,
v No. 120250
TUSCOLA COUNTY APPORTIONMENT
COMMISSION,
Respondent-Appellee.
_________________________________
PER CURIAM
Following the 2000 census, the Tuscola County
Apportionment Commission reapportioned the districts for the
Tuscola County Board of Commissioners under MCL 46.401 et seq.
In this action, the petitioner raised several challenges to
the apportionment commission’s actions. The Court of Appeals
upheld the apportionment plan, and the petitioner seeks leave
to appeal. We conclude that a districting plan meets
constitutional population standards if the total departure of
the largest and smallest districts from the average size does
not exceed 11.9 percent, even if one district is more than
5.95 percent larger or smaller than the average. We thus
overrule the contrary decision in In re Apportionment of Wayne
Co—2001, 248 Mich App 89; 637 NW2d 841 (2001). In all other
respects, leave to appeal is denied.
I
The procedure for apportioning county commission
districts is established by 1966 PA 261. The statute creates
a five-member apportionment commission in each county,
consisting of the county prosecutor, county treasurer, county
clerk, and the chairpersons of the two political parties that
received the most votes for their Secretary of State
candidates in the last election. MCL 46.403.1
The Secretary of State provided the necessary census
information to the county on April 11, 2001, and the
apportionment commission met several times. On May 18, it
1
Unlike state legislative and congressional
apportionment, there are two decisions to be made. First, the
size of the county commission must be determined. MCL 46.401
provides generally that commissions are to be composed of no
fewer than five nor more than thirty-five districts. However,
the maximum number is actually controlled by MCL 46.402, on
the basis of the population of the county. In the 2000
census, Tuscola County had a population of slightly over
58,000, and thus under that section the number of
commissioners may not exceed twenty-one. Once the number of
districts is determined, the statute provides guidelines to be
used in apportioning them. MCL 46.404. No challenge is made
in this case regarding the compliance of the adopted plan with
the guidelines in that section.
2
voted to reduce the size of the board of commissioners from
the current seven members to five. The apportionment
commission then approved a districting plan for a five-member
commission, which was filed with the Secretary of State on
June 1, 2001.
On June 29, petitioner Bates, the chairperson of the
board of commissioners, filed a petition for review in the
Court of Appeals.2 However, the Court issued an order on
October 1, 2001, dismissing the petition and upholding the
districting plan.3 Petitioner has filed an application for
leave to appeal to this Court. She has also filed a
“supplement” to the application raising an additional issue
based on the recent Court of Appeals decision in In re
Apportionment of Wayne Co—2001, supra. In this opinion, we
address only the issue regarding the permissible population
divergence analysis of In re Apportionment of Wayne Co—2001.
II
In Apportionment of Wayne Co Bd of Comm’rs—1982, 413 Mich
224; 321 NW2d 615 (1982), we held that the maximum allowable
2
Judicial review is available under MCL 46.406:
Any registered voter of the county within 30
days after the filing of the plan for his county
may petition the court of appeals to review such
plan to determine if the plan meets the
requirements of the laws of this state. Any
findings of the court of appeals may be appealed to
the supreme court of the state as provided by law.
3
Docket No. 235221.
3
population divergence in county commission districts was 11.9
percent, on the basis of the U.S. Supreme Court’s decision in
Abate v Mundt, 403 US 182; 91 S Ct 1904; 29 L Ed 2d 399
(1971). In both the 1982 Wayne Co case and In re
Apportionment of State Legislature—1982, 413 Mich 96, 141-142;
321 NW2d 565 (1982), we parenthetically described the
permissible population divergence as a range around the ideal
population.4
In a recent decision regarding the apportionment of the
Wayne County Board of Commissioners following the 2000 census,
the Court of Appeals has interpreted our earlier decision as
4
In Wayne Co Apportionment—1982, we said:
The Fourteenth Amendment requires that this be
done with the least cost to the federal principle
of equality of population between election
districts consistent with the maximum preservation
of city and township lines and without exceeding
the range of allowable divergence under the federal
constitution which, until the United States Supreme
Court declares otherwise, shall be deemed to be the
range approved in Abate of 11.9% (94.05% to
105.95%). [413 Mich 256 (emphasis added).]
Similarly, in In re Apportionment of the State
Legislature—1982, we concluded:
Senate and House election district lines shall
preserve county lines with the least cost to the
federal principle of equality of population between
election districts consistent with the maximum
preservation of county lines and without exceeding
the range of allowable divergence under the federal
constitution which, until the United States Supreme
Court declares otherwise, shall be deemed to be
16.4% (91.8%-108.2%). [413 Mich 141 (emphasis
added).]
4
making the parenthetical range part of the requirement for
permissible population divergence. In re Apportionment of
Wayne Co—2001, 248 Mich App 92-93. The Court invalidated a
districting plan even though the plan’s overall population
divergence of 9.05 percent was well within the 11.9 percent
allowed by Abate. It did so because one of the districts
exceeded the ideal population by 6.2 percent and was thus
outside the “range” of 5.95 percent.5
The plan approved by the Tuscola apportionment commission
in 2001 presents a similar situation. In the 2000 census,
Tuscola County had a population of 58,266, so that a
five-district plan would have had an ideal population of
11,653 per district. The districts approved by the
apportionment commission, and their departures from the ideal
population, are as follows:
District #1 11211 (-442) 96.207%
District #2 12392 (+739) 106.342%
District #3 12174 (+521) 104.471%
District #4 11046 (-607) 94.791%
District #5 11443 (-210) 98.198%
The petitioner did not raise an issue regarding this
5
The Court of Appeals invalidated the Wayne County plan
and remanded for adoption of a new one, retaining
jurisdiction. The apportionment commission approved a new
plan, and on rehearing, the Court of Appeals denied the
petition for review, confirming the new plan. In re
Apportionment of Wayne Co—2001 (On Rehearing), 250 Mich App
___; ___ NW2d ___ (Docket No. 235339, issued April 12, 2002).
5
population divergence question in the Court of Appeals, nor
did she do so in her application for leave to appeal to this
Court. However, after the decision in the Wayne Co case, she
filed a “supplement” to the application challenging the
apportionment plan on this population divergence question for
the first time. She argued that the plan was invalid because
District 2 exceeds the ideal population by more than
5.95 percent.
III
The decision by the Court of Appeals in Wayne Co—2001
construed our parenthetical reference to an equidistant
percentage range as a mandatory principle in apportionment
cases. Our decisions regarding local and state legislative
apportionment cases have adopted the maximum population ranges
on the basis of United States Supreme Court decisions holding
that plans that deviated by those amounts met federal
constitutional standards. In the local government context,
Abate approved a plan with an 11.9 percent divergence, and
Mahan v Howell, 410 US 315; 93 S Ct 979; 35 L Ed 2d 320
(1973), approved a maximum deviation of 16.4 percent in the
state legislative apportionment context. We adopted those
federally imposed limits without independent analysis and
without indicating that any additional requirements were to be
imposed. Our opinions stated such ranges parenthetically,
apparently for illustrative purposes. However, no support for
an equidistant range principle can be found in the United
6
States Supreme Court opinions on which our decisions were
based, and there is no statutory basis for such a requirement.
Indeed, those United States Supreme Court decisions approved
apportionment plans that had population variances that would
not have been permissible if an equidistant range principle
had been used. In Abate, one district was 7.1 percent below
the ideal population. 403 US 184, n 1. Similarly, Mahan
upheld a state legislative districting plan with a 16.4
percent percentage variation, but in which the largest
district was underrepresented by 9.6 percent, well outside an
“equidistant range” of 8.2 percent. 410 US 319.
Thus, the population divergence criterion of 11.9 percent
total variation does not include an additional equidistant
range limitation. The Tuscola County plan adopted by the
apportionment commission in this case meets the equal
population standard established by Wayne Co
Apportionment—1982. In that regard the petition for review is
denied.6
6
The petitioner has raised several other issues
regarding the apportionment commission’s actions. As to those
claims, the application for leave to appeal is denied.
Although the Court has some concerns regarding the
interpretation of MCL 46.601 set forth in Kizer v Livingston
Co Bd of Comm’rs, 38 Mich App 239; 195 NW2d 884 (1972), that
issue is not properly before the Court because there is no
evidence that the Board of Commissioners attempted to
reapportion the commissioner districts within the thirty-day
period mentioned in the statute. Absent such an attempt, or
a declaratory judgment action challenging Kizer’s
interpretation of the MCL 46.401, there is no justiciable
controversy before us.
7
Pursuant to MCR 7.317(C)(3) the clerk is directed to
issue the judgment order forthwith.
CORRIGAN , C.J., and WEAVER , KELLY, TAYLOR , YOUNG , and MARKMAN ,
JJ., concurred.
CAVANAGH , J., would deny leave to appeal.
8