NO. 85-166
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
BOB RARTHLEMESS,
Plaintiff and Respondent,
BRUCE K. BERGERSON, SR., TED HIRSCH,
and MAURICE E. FLEMING, as COUNTY
COMMISSIONERS OF CUSTER COUNTY,
MONTANA; and CUSTER COUNTY, MONTANA,
a body politic and corporate,
Defendants and Appellants.
TONIA R. STRATFORD,
Contestant-Appellant,
BOB BARTHELMESS,
Contestee-Respondent,
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Custer,
The Honorable LeRoy McKinnon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Keith D. Haker, County Attorney, Miles City, Montana
J. Dennis Corbin, Deputy County Attorney, Miles City
Brown & Huss; George W. Huss, Miles City, Montana
For Respondent:
Lucas & Monaghan; James P. Lucas, Miles City, Montana
Submitted on briefs: June 28, 1985
Decided: November 6, 1935
~iled
:
!doY 6 - 1985
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is a n appeal from an order of the District Court,
Sixteenth Judicia 1 District, Custer County, Montana.
Following a bench trial the court found the Custer County
Commissioners had not drawn the proposed new commission
district boundaries as compactly and as equal in area as
possible in violation of S 7-4-2102, MCA; that the proposed
new districts are void and the prior commissioner districts
remain valid; and that Bob Barthelmess be declared the duly
elected county commissioner from Commissioner District # 2.
We affirm in part, reverse in part, and remand for further
action consistent with this opinion.
In October, 1983, pursuant to S 7-4-2102, MCA, the
Custer County Commissioners redefined the commissioner dis-
trict boundaries using the 1980 federal decennial census
figures. These proposed new districts were reviewed and
approved by the Honorable A. B. Martin, the only District
Judge residing in the county. A metes and bounds description
was properly filed and recorded in the office of the Custer
County Clerk and Recorder October 31, 1983.
The new boundaries changed the size and shape of the
commissioner districts, particularly increasing the size of
District # 1. The boundary lines are not straight, espe-
cially within the city of Miles City, but this is not at
issue. The boundaries outside the city are easily identifi-
able, and there is no evidence of any gerrymandering. The
City-County Planning Office was the only agency in the county
which subscribed to the complete Federal Census Reports,
including maps and all the data that came with them. Earlier
they had reapportioned the city wards and more or less took
it upon themselves to redraw the commissioner district lines.
The objective of the planning board was to create simple
identifiable districts which were as equal in population as
possible. Area was not a major consideration.
On March 20, 1984, Mr. Barthelmess, plaintiff-
respondent in this action, filed for the office of County
Commissioner from Commissioner District # 2, notwithstanding
he resided in Commissioner District # 3 as a result of the
new boundary lines. There was no vacancy at the time in
Commissioner District # 3, as the term of the incumbent, Mr.
Bruce Bergerson, Sr., of Miles City, had not expired. Mr.
Barthelmess won the Democratic primary election and the
general election. Following the general election, Tonia R.
Stratford filed an action in District Court against Mr.
Barthelmess alleging he was not a resident of the
commissioner district from which he had run, in violation of
Title 13 of the Montana Election Laws. Mr. Barthelmess sued
the Custer County Commissioners, alleging the commissioner
districts of October 31, 1983, were improperly created
because they did not meet the requirements of 5 7-4-2102,
MCA, that districts be as compact and equal in area as
possible. The two causes were combined and a trial was held
January 10, 1985. Stratford and the County Commissioners
appea 1.
The Court will consider the following issues:
(1) Whether 5 7-4-2102, MCA, calling for commissioner
districts to be as compact and equal in population as possi-
ble means mathematical exactness or whether county commis-
sioners are allowed discretion in determining boundaries.
(2) Whether the commissioner districts which are not
as compact and equal in area as possible are void as violat-
ing 5 7-4-2102, MCA.
(3) Whether the commissioner districts created in
1974, which did not meet the requirements of 5 7-4-2102, MCA,
be reinstated.
(4) Whether a county commissioner can be elected from
a commissioner district in which he did not reside at the
time of filing his declaration of nomination.
There are four statutory requirements to be met when
dividing a county into commissioner districts: compactness,
equality of population, equality of area, and approval by the
district judge or judges in the county. In this case it does
not appear an attempt was made to satisfy both equality of
area and equality of population. Mr. Barthelmess contends
the new commissioner districts are void because they do not
meet the criteria in S 7-4-2102. Specifically they are not
as compact and equal in area as possible. Mr. Richard M.
Jones, director of the city-county planning office admitted
his office was unaware of the statutory requirement of
'compactness of area which was not considered when the
district lines were drawn. This is not to suggest the
statute permits no discretion on the part of the county
commissioners. The ultimate result of such a claim would
' render county commissioners incapable of effective decision
making. Acknowledging county commissioners have a limited
amount of discretion, mathematical exactness when complying
with the statute i s required only when this is reasonably
.
possible.
The meaning of a given term employed in a
statute must be measured and controlled
by the connection in which it is
employed, the evident purpose of the
statute and the subject to which it
relates.
Fletcher v. Paige (1950), 124 Mont. 114, 120, 220 P.2d 484,
487. Although it is doubtful mathematical exactness is
reasonably possible in this case, compliance with the statute
requires, a t minimum, a n a t t e m p t t o e q u a l i z e b o t h a r e a and
population.
Boundary location is important because it d e t e r m i n e s
who i s e l i g i b l e t o r u n f o r o f f i c e by v i r t u e o f r e s i d e n c y i n a
given d i s t r i c t . The r e a s o n f o r t h e r e s i d e n c y r e q u i r e m e n t i s
n o t t o s a t i s f y t h e one-man-one-vote r u l e announced i n Baker
v. Carr ( 1 9 6 2 ) , 369 U.S. 186, 8 2 S.Ct. 691, 7 L.Ed.2d 663,
b e c a u s e a l l t h e v o t e r s i n C u s t e r County h a v e t h e o p p o r t u n i t y
t o v o t e f o r a c a n d i d a t e f o r county commissioner. R a t h e r , it
i s a b a s i s of residence f o r candidates. Research does n o t
reveal the legislative intent in drafting the statute, but
the effect of the statute is an attempt to assure a
geographic distribution of candidates for the office of
county commission. It is essential the integrity of the
l i n e s be maintained t o p r o t e c t p o t e n t i a l candidates.
R e d i s t r i c t i n g d e c i s i o n s r e q u i r e a b a l a n c i n g t e s t among
competing i n t e r e s t s . McBride v . Mahoney (Mont. 1983) , 573
F.Supp. 913. Although each interest must be weighed
carefully, t h e i m p o r t a n c e o f p o p u l a t i o n when d i s t r i c t l i n e s
a r e drawn h a s been emphasized numerous t i m e s by t h e U n i t e d
States Supreme Court. " [The] Constitution permits no
substantial variation from equal population in drawing
districts for units of local government having general
government powers o v e r t h e e n t i r e g e o g r a p h i c a r e a s e r v e d by
t h e body." Avery v . Midland County ( 1 9 6 8 ) , 390 U.S. 474,
484-485, 88 S.Ct. 1114, 1120, 20 L.Ed.2d 45, 53. The
overriding objective must be substantial equality of
population among the various districts; however variations
from a pure population standard can be justified by the
recognition of natura 1 or historica1 boundary line.
Indiscriminate disregard for these natural boundaries can
r e s u l t i n p a r t i s a n gerrymandering. Reynolds v . Sims (1964) ,
377 U.S. 533, 578-79, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506,
There is considerable evidence the population among
districts has been equalized. It is equally clear the area
of the districts has not. The Court affirmes the District
Court's conclusion the Custer County Commissioners and the
Custer county planner acted in good faith, but being unaware
of the provisions of 5 7-4-2102, MCA, the planner was not
concerned with compactness or equality of the proposed new
commissioner districts. The purported commissioner districts
of 1983 are not as compact or as equal in area as possible
and are therefore void. Compliance with 5 7-4-2102 requires
both equality of population and of area, but does not require
mathematical exactness. The boundary lines approved October
31, 1983, do not meet the statutory requirements. The
districts must be redrawn to comply with the statute,
consistent with this opinion. Both district judges of the
Sixteenth Judicial District must review and approve the plan
before it is filed and recorded.
Mr. Rarthelmess did not reside in the commissioner
district from which he ran and was elected. The statute is
clear and unambiguous:
(1) At each general election, the member
or members of the board of county commis-
sioners to be elected shall be selected
from the residents and electors of the
district or districts in which the vacan-
cy occurs, but the election of such
member or members of the board shall be
submitted to the entire electorate of the
county.
(2) No one shall be elected as a member
of said board who has not resided in said
district for at least 2 years next pre-
ceding the time when he shall become a
candidate for said office.
Section 7-4-2104.
We agree with the District Court's conclusions of law
as to the boundary lines:
2. That the Custer County Commissioners
and the Custer County Planner acted in
good faith, but being unaware of the
provisions of Section 7-4-2102, MCA, the
Planner was not concerned with
compactness nor with equality of area of
the proposed new Commissioner Districts.
3. The purported Commissioner Districts
of 1983, are not as compact nor as equal
in area as possible, and are therefore
void, and the prior Commissioner
Districts remain as valid Commissioner
Districts.
We modify conclusion No. 5 declaring Bob Barthelmess
the duly elected commissioner of District #2, to permit him
to hold office until the next general election when a
candidate will be elected for the remainder of the term
involved. In the meantime, the county is to be redistricted
in accordance with the provisions of § 7-4-2102, MCA, and the
holding of this opinion.
The prayer for mandamus is denied. Each party shall
bear its own costs.
We concur: 1