In Re Apportionment of State Legislature—1964

Smith, J.

I concur with Mr. Justice Adams but would add these few words. If I were convinced that election chaos would result from reasonable adjournment then I would not hesitate to take all steps, within my power, to prevent it, and now. However, I can read election timetables like anyone else. There would still be time to set up election machinery if we adjourned decision until approximately May 15, 1964. Beyond that date we will approach a point of critiicality which if not solved by United States supreme eourt decision, ■will require appropriate action from this Court. Whatever is necessary and proper, I shall be prepared to do.

Kavanagh, C. J.

For the reasons set forth in my opinions in the 2 Scholle Cases'^ and the reasons given by Justice Sotjbis in his present *480opinion, I concur in the conclusion reached by him, that no plan, submitted meets the “constitutional requirements.”2

However, due to the imminence of further decisions by the United States supreme court in the 6 cases cited by Justice Adams as presently before it for decision, I conclude we cannot with propriety act-, before these decisions are released.

Hanna-Iiuhtala-LaPorte-Brucker plan of apportionment approved' and directed to be published by Dethmees, Kelly, Smith, O’Hara,. and Adams, JJ., upon concurrence in result on May 26, 1964, by Smith and Adams, JJ., who subject their approval to reservation as to constitutionality under the Federal Constitution. Smith, J.

During the April session of the Court, having already waited a month since submission of' this cause, I made up my mind that if by May 18th1, at the latest, no definitive decision had been received, from the supreme court of the United States on State-legislative apportionment I would join other willing-members of this Court in adopting a plan submitted. by members of the apportionment commission. In: a brief prior opinion, I said that it was my calculation that about May 15th we would be approaching a point of criticality in regards to legislative elections constitutionally scheduled for November, 1964..

This calculation was and is based upon timetables-in the Michigan Constitution of 1963. From these-schedules arise certain problems inherent in any orderly election process. Basically, the problems-have to do with time. Once the Court approves a plan, time is required for the apportionment commission to publish; time is constitutionally permitted, for an elector to attack the plan ; after that, time is-necessary for consideration of the elector’s objec*481tions, if any; further, time is required for decision; time may he required for dissent; any final order will require time in which to make it operative. By then, at a very minimum, all time will be used up, if we contemplate an orderly election process under the Constitution. I can contemplate nothing else.

Time is also necessary to other important objectives. Of greatest importance is the time necessary to acquaint the citizen-voter with legislative districts, house and senate, in which he resides. Candidates for these offices, in both the primary and the general election, need to know their districts in sufficient time so as to be able to acquaint the electorate with the issues and with their qualifications.

With this in mind then, I must concur, now, in the results reached by Justice Dethmers in his opinion filed some 2 months ago. Concurring in results only, obviously I do not subscribe to all of his reasons. To this much I do subscribe: that the so-called Republican plan most accurately complies with article 4 of the Constitution of 1963. That it does, should surprise no one. The results were probably foretold in the constitutional convention. As an institution organized along partisan lines, it accomplished a partisan result in its apportionment formulae. Any plan adopted pursuant thereto had its result largely preordained. This is neither good nor bad, necessarily; it is but an example of the use of political power. In any event, who runs in what district, and what the political composition of such district may be are of legitimate concern elsewhere, but not in the courts. The duty here is to measure the results in terms of basic legal guidelines. This is what I have done within the frame of reference, however, of the Michigan Constitution only.

I have not attempted to measure the plan and formulae by the equal protection clause of the Fourteenth Amendment. Judgment on that issue, I re*482serve. Nobody knows, at this writing, what the equal protection clause requires in the makeup of a bicameral legislature of a State. As so often mentioned in these proceedings, that question is presently before the supreme custodian of the Federal Constitution. When the matter is decided by the highest authority, no one will be quicker to subscribe than I. But until the high court speaks, the matter is still debatable. Government must go on, and, therefore, the presumption of validity must be indulged until contrary advice is received.

Time no longer permits the luxury of anticipating either when or what the supreme court of the United States will decide. What is before us is a more immediate and practical necessity. Having waited in good faith this long for further direction, I now take this action in the interest of orderly processes by concurring in the results reached by Justice Dethmers.

Adams, J.

I join in the finding of Justices Dethmers, Kelly, O’Hara, and Smith that, under section 6, art 4, of the Constitution of 1963, the Hanna plan complies most accurately with the requirements of said Constitution and that said plan shall be adopted by the commission on legislative apportionment and published as provided in section 6, art 4, Constitution of 1963.

I agree with Justice Smith in his analysis of the time problems which presently exist in terms of orderly election processes, and that it is highly desirable the 60 days permitted for the application of an elector with respect to the plan begin to run. It is because of the exigencies of the situation that I have decided to cast my vote at this time. However, in doing so, I reserve for future consideration any question as to the constitutionality of the Hanna plan under the Constitution of the United States.

Constitution 1963, art 4, § 6, provides: “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.”

An opinion day of the supreme court of the United States..