Ater v. Keisling

819 P.2d 296, 312 Or. 207, 1991 Ore. LEXIS 77
Oregon Supreme Court·Decided October 15, 1991·No. S38475 to S38479·Published·Cited by 13 cases

Opinions

[210] PETERSON, J.

The Oregon Constitution requires that, following each federal decennial census, the “Senators and Representatives shall be * * * apportioned among legislative districts according to population.” Or Const, Art IV, § 6(1). If the Legislative Assembly fails to enact a reapportionment, the task falls to the Secretary of State (Secretary). Or Const, Art IV, § 6(3). The 1991 Legislative Assembly failed to enact a reapportionment; therefore, the Secretary did so and filed his reapportionment plan with this court on August 14, 1991.

Original jurisdiction is vested in the Supreme Court “to review any reapportionment and the record made by the Secretary of State.” Or Const, Art IV, § 6(3)(b). Five petitions challenging specific parts of the reapportionment plan were timely filed.1

Article IV, section 6(3)(a), of the Oregon Constitu-. tion directs the Secretary to “make a reapportionment of the Senators and Representatives in accordance with subsection (1) of this section and all law applicable thereto.” Article IV, section 6(1) provides:

“At the regular session of the Legislative Assembly next following an enumeration of the inhabitants by the United States Government, the number of Senators and Representatives shall be fixed by law and apportioned among legislative districts according to population. A senatorial district shall consist of two representative districts. Any Senator whose term continues through the next regular legislative session after the effective date of reapportionment shall be specifically assigned to a senatorial district. The ratio of Senators and Representatives, respectively, to population shall he determined by dividing the total population of the state by the number of Senators and by the number of Representatives.”

[211] The petitioners seek review of the Secretary’s plan on the ground that it fails to comply with section 6(1) “and all law applicable thereto.” Or Const, Art IV, § 6(3)(a), (d).

The court’s role in the reapportionment process also is prescribed by the constitution. Article IV, sections 6(3) (c) and (d) direct the court as follows:

‘ ‘ (c) If the Supreme Court determines that the reapportionment thus reviewed complies with subsection (1) of this section [and2] all law applicable thereto, it shall dismiss the petition by written opinion on or before October 15 of the same year and the reapportionment shall become operative on October 15.
‘ ‘ (d) If the Supreme Court determines that the reapportionment does not comply with subsection (1) of this section and all law applicable thereto, the reapportionment shall be void. The Supreme Court shall return the reapportionment by November 1 to the Secretary of State accompanied by a written opinion specifying with particularity wherein the reapportionment fails to comply. The opinion shall further direct the Secretary of State to correct the reapportionment in those particulars, and in no others, and file the corrected reapportionment with the Supreme Court on or before December 1 of the same year.”

Initially, we note that Article IV, section 6, of the Oregon Constitution has been amended since the last reapportionment in 1981.3 In particular, the phrase “and all law applicable thereto” was added to the former section, which had required a reapportionment only ‘ ‘in accordance with’ ’ or in “compliance] with subsection (1) of this section.” Compare Or Const, Art TV, § 6(2)(b)-(d) and (3)(a), (c)-(e) (1989) (as amended in 1986) with Or Const, Art IV, § 6(2)(b)-(d) and (3)(a)-(d) (1985) (as effective from 1954 through 1986). Before the 1986 amendment, this court had held that its review was limited to ensuring compliance with Article IV, section 6(1). See McCall v. Legislative Assembly, 291 Or 663, 673, 634 P2d 223 (1981); Cargo v. Paulus, 291 Or 772, 777, 635 P2d 367 (1981); In re Legislative Apportionment, 228 [212] Or 575, 579,365 P2d 1042 (1961). In 1981, this court specifically rejected challenges based on ORS 188.010, which sets forth criteria for the Legislative Assembly and the Secretary to follow in making a legislative reapportionment, and held that

“our original jurisdiction under art IV, section 6(2) is to review a reapportionment measure for compliance with section 6(1), including such surrounding constitutional mandates as must be respected in the interpretation and application of subsection (1). ORS 188.010 does not purport to be an authoritative interpretation of constitutionally mandated standards.” McCall v. Legislative Assembly, supra, 291 Or at 673 (footnote omitted); Cargo v. Paulus, supra, 291 Or at 777 (quotingMcCall).

The 1986 constitutional amendment gives the court the authority found lacking under the previous version of Article IV, section 6, i.e., to review the reapportionment for compliance with statutory as well as constitutional law.

This expansion of our scope of review is significant, because all five petitions challenging the reapportionment are premised on the Secretary’s alleged failure to follow the criteria set forth in ORS 188.010(1).4 That statute provides:

“The Legislative Assembly or the Secretary of State, whichever is applicable, shall consider the following criteria when apportioning the state into congressional and legislative districts:
“(1) Each district, as nearly as practicable, shall:
“(a) Be contiguous;
“(b) Be of equal population;
“(c) Utilize existing geographic or political boundaries;
“(d) Not divide communities of common interest; and
‘ ‘ (e) Be connected by transportation links. ’ ’

[213] Although the scope of our review has been expanded to include ensuring compliance with statutes, e.g., ORS 188.010(1), as well as the constitution, the nature of the court’s task remains essentially the same. In 1961, this court interpreted the previous version of Article IV, section 6, and articulated its standard of review as follows:

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Ater v. Keisling, 819 P.2d 296, 312 Or. 207, 1991 Ore. LEXIS 77 (Or. 1991).

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