IN THE SUPREME COURT OF PENNSYLVANIA
4 MM 2012
THOMAS SCHIFFER,
ALISON BAUSMAN,
RACHEL J. AMDUR,
JOAN TARKA,
LAWRENCE W. ABEL,
MARGARET G. MORSCHECK,
LAWRENCE J. CHRZAN,
JULIA SCHULTZ, and
SHIRLEY RESNICK,
Petitioners
Vs.
2011 LEGISLATIVE REAPPORTIONMENT
COMMISSION,
Respondent
BRIEF FOR PETITIONERS
Petition for Review of the Final plan set forth by the 2011 Legislative Reapportionment Commission and approved December 12, 2011
Eric Ring, Esquire
2335 Darby Road
Havertown, PA 19083
(610) 789-4450
Attorney for Petitioners
TABLE OF CONTENTS
Page No.
TABLE OF CITATIONS .iii
STATEMENT OF JURISDICTION 1
ORDER IN QUESTION .2
STATEMENT OF SCOPE AND STANDARD OF REVIEW .3
STATEMENT OF QUESTIONS INVOLVED 4
1. Should the Supreme Court of Pennsylvania expand its holding in Albert v.
Pennsylvania Legislative Reapportionment Commission 567 Pa. 670 where they held
that a challenge to a reapportionment plan not focus on the impact of the plan with
respect to a particular political subdivision when such plan splits the representation
within that political subdivision.
2. If this court rules that a challenge to a reapportionment plan should focus on the
impact of the plan with respect to a specific split of a political subdivision, is the plan
submitted by the 2011 Pennsylvania Legislative Reapportionment Commission
contrary to law by dividing Haverford Township when it was not absolutely
necessary.
3. In the alternative, is the final plan submitted by the 2011 Pennsylvania Legislative
Reapportionment Commission contrary to law when looking at the plan as a whole by
dividing or splitting counties, cities, incorporated towns, boroughs, townships or
wards unless absolutely necessary.
STATEMENT OF THE CASE 5
SUMMARY OF ARGUMENT 7
ARGUMENT 9
A.
Albert v. Pennsylvania Legislative Reapportionment Commission should be
expanded to give more weight to Article II, Section 16 of the Pennsylvania
Constitution and allow Petitioner to show an alternate plan as evidence that a
political subdivision was split when it was not absolutely necessary.
1. Respondents failed to show why division of Haverford Township into two
separate House districts was "absolutely necessary" to their Final Plan for
redistricting.
2. Stare decisis should not be controlling in this case because Albert v.
Pennsylvania Legislative Reapportionment Commission does not provide a
standard by which reapportionment plans are judged to determine whether or
not they are contrary to law.
3. Case law dictates that, when interpreting Constitutional language, it should be
read "as the average person would understand it when they voted on its
adoption, and avoid strained or technical interpretations." Respondents have
not interpreted the "absolutely necessary" language of the PA Constitution
according to this concept.
4. Petitioners have provided an Alternate Plan that demonstrates that the splits
created in the Final Plan were not "absolutely necessary." As such, Albert v.
Pennsylvania Legislative Reapportionment Commission should be expanded
to allow the Court to evaluate the Alternate Plan as evidence to make a prima
facie case and shift the burden to respondents to prove the absolutely necessity
of the splits included in the Final Plan.
B.
The number of county splits in respondent's Final Plan exceeds the number of
splits that Your Honorable Court should allow.
CONCLUSION 15
ORDER AND OPINION BELOW .16
Composite Listing of House of Representatives Districts Alternate Plan .A
B
ii
TABLE OF CITATIONS
CITATIONS
PAGE
CASES
Albert v. Pa. Legis. Reapportionment Commission, 790 A.2d 989 (Pa. 2002) Buckwalter v. Borough of Phoenixville, 985 A.2d 728 (Pa. 2009) 3, 9, 10, 13, 14
10, 11
STATUTES
Pa. Const., art. II, § 16 7, 9, 11, 13, 14
Pa. Const., art. II, § 17 1, 5
42 Pa. Cons. Stat. 725 1
RULES
.1
Pa. R.A.P. 3321 iii
STATEMENT OF JURISDICTION
The basis for the jurisdiction of this Court is Section 17(d) of Article 2 of the
Pennsylvania Constitution and 42 Pa. C.S. 725(1), which provides that the Supreme Court shall
have exclusive jurisdiction of appeals from final orders of certain constitutional and judicial
agencies, including the Legislative Reapportionment Commission.
This appeal is addressed to the Court's jurisdiction under Section 17(d) of Article
II of the Constitution of Pennsylvania and is in the nature of a petition for review, pursuant to
Rule of Appellate Procedure 3321.
1
ORDER IN QUESTION
The determination for which the Petitioners seek review is the Final Plan of the
Commission that was approved on December 12, 2011. A true and correct copy of the
Composite Listing of House of Representatives Districts is attached hereto and incorporated
herein by reference.
2
STATEMENT OF SCOPE AND STANDARD OF REVIEW The scope and standard of review applied to cases regarding the reapportioning of
legislative districts is "limited to determining whether appellants have established that the final
plan in contrary to law." Albert v. Pa. Legis. Reapportionment Commission citing PA. Const. art
II, sC 17(d).
3
STATEMENT OF QUESTIONS INVOLVED
1. Should the Supreme Court of Pennsylvania expand its holding in Albert v. Pa. Legis.
Reapportionment Commission , 790 A.2d 989 (Pa. 2002) where they held that a
challenge to a reapportionment plan not focus on the impact of the plan with respect
to a particular political subdivision when such plan splits the representation within
that political subdivision.
2. If this court rules that a challenge to a reapportionment plan should focus on the
impact of the plan with respect to a specific split of a political subdivision, is the plan
submitted by the 2011 Pennsylvania Legislative Reapportionment Commission
contrary to law by dividing Haverford Township when it was not absolutely
necessary.
3. In the alternative, is the final plan submitted by the 2011 Pennsylvania Legislative
Reapportionment Commission contrary to law when looking at the plan as a whole by
dividing or splitting counties, cities, incorporated towns, boroughs, townships or
wards unless absolutely necessary.
4
STATEMENT OF THE CASE
This is an appeal from the final reapportionment plan filed by the 2011 Pennsylvania
Legislative Reapportionment Committee. The final plan was filed on December 12, 2011. The
Supreme Court of Pennsylvania has Original Jurisdiction and to Petitioners best knowledge there
has been no other determination with respect to the final plan.
Pursuant to Section 17(a) of Article 2 of the Pennsylvania Constitution, in 2011, the year
following the Federal decennial census, the 2011 Legislative Reapportionment Commission was
constituted for the purpose of reapportioning the Commonwealth. Pursuant to Article 17(c) of
Article 2 of the Pennsylvania Constitution, the Commission approved a preliminary
reapportionment plan on October 31, 2011, by a 3 to 2 vote, with Commission Members Costa
and Dermody dissenting. ("Preliminary Plan"). The Preliminary Plan was not revealed to the
Senate and House minority leader members of the Commission until one half-hour in advance of
the time scheduled for voting on the Preliminary Plan, and no meaningful opportunity for review
of the Preliminary Plan was provided. Under the current Final Plan filed by the 2011
Reapportionment Commission there are 16 Municipal splits in Delaware County for
Pennsylvania House Districts representing Delaware County. An attached alternate plan was
submitted to the 2011 Reapportionment Commission where there were only 9 Municipal splits in
Delaware County for Pennsylvania House Districts representing Delaware County. Haverford
Township, Wards 1 and 9 specifically, were removed from the 166 th District as a result of the
Final Plan. Overall the number of County splits in Pennsylvania before the implementation of
the 2011 Reapportionment Final Plan for Pennsylvania House Districts equaled 49. Under the
Final Plan, 52 county splits will occur.
5
On or about November 14, 2011, under Resolution Number 1821-2011, the Township of
Haverford Board of Commissioners submitted General Exceptions to the Preliminary
Reapportionment Plan which ultimately became the Final Plan. Said Exceptions are attached to
the Petition for Review as Exhibit C which is a matter of record and, as such, is not reproduced
here.
The Commission conducted public hearings on the Preliminary Plan on November 18 and
November 23, 2011, and allowed for the submission of written comments and concerns. On or
about November 22, 2011, State Representative Greg Vitali provided the Respondent with a
copy of a Proposed Plan which reduced the number of municipal splits in Delaware County from
16 to 9. Said Proposed Plan was attached to the Petition for Review as Exhibit D and is a matter
or record.
During the course of the aforementioned public hearings, witnesses from across the
Commonwealth testified as to the importance of not dividing political subdivisions
unnecessarily. Haverford Township has been directly impacted by the reapportionment pursuant
to the Final Plan. Specifically, Ward 1 and Ward 9 have been removed from District 166, thus
creating a municipal split. Said split is the basis for this appeal.
6
SUMMARY OF ARGUMENT
Your Honorable Court should expand the holding of Albert to give more weight to
Article II, Section 16 of the Pennsylvania Constitution. Rather than looking only to the state as a
whole when determining whether or not a proposed reapportionment plan is contrary to law, a
Petitioner should be allowed to introduce an alternate plan as prima facie evidence that a political
subdivision was divided when it was not absolutely necessary.
Furthermore, when reapportionment occurs counties, cities, incorporated towns,
boroughs, townships and wards should not be split unless "absolutely necessary." In this case,
Respondent failed to show that the splits created by the Final Plan were absolutely necessary.
Furthermore, an alternate plan was presented to Respondent which maintained almost identical
population goals per district that reduced the number of municipal splits in Delaware County in
the Final Plan from 16 to 9 — nearly '/2.
The precedent set by Albert should be expanded because the Albert case does not identify
any standards by which legality is judged for reapportionment plans. The general review of the
impact of a plan on the state as a whole instead of the impact on each political subdivision makes
it impossible for a challenger to focus on their specific political subdivision and propose an
alternate plan.
Additional case law dictates that, when interpreting Constitutional language, it should be
read as an average person would read it. Based on the plain meaning of the language used, an
average person would not conclude that if an alternate plan can be produced which decreases the
number of municipal splits but maintains the average population in the districts that the original
plan absolutely needed to split the political subdivision.
7
Finally, in a concurring opinion, Justice Saylor attempts to draw a line as to how many
county splits are acceptable following a reapportionment plan. Justice Saylor seems to think that
a line should be drawn at 49 splits — the Final Plan creates 52 county splits.
8
ARGUMENT
A.
Albert v. Commonwealth should be expanded to give more weight to
Article II, Section 16 of the Pennsylvania Constitution.
This Court held in Albert v. Commonwealth, 790 A.2d 989 (Pa. 2002) that challengers to
a reapportionment plan not focus "primarily on the impact of the plan with respect to their
particular political subdivision, rather..." the challenger should analyze "...the plan as a
whole,..." and submission of an alternate plan should not be considered. Id. at 995. The
Petitioners respectfully request that this view be expanded as to not negate the language of
Article II, Section 16 of the Pennsylvania Constitution.
1. Respondents failed to show why the division of Haverford Township into
two separate House districts was "absolutely necessary" to their Final
Plan for redistricting.
Article II, Section 16 of the Pennsylvania Constitution states that "Unless absolutely
necessary, no county, city, incorporated town, borough, township or ward shall be divided in
forming either a senatorial or representative district." Pa. Const. art II, § 16.
In Albert this Court held that "to prevail in their challenge to the final reapportionment
plan, appellants have the burden of establishing not...that there exists an alternative plan which
is "preferable' or 'better,' but rather that the final plan filed by the Pennsylvania
Reapportionment Commission fails to meet constitutional requirements." Albert, 790 A.2d at
995. As stated above, this Court also held that a challenger should not look at the specific split
of a subdivision, but "the plan as a whole." Id. How then can a challenger prove that a political
subdivision was split when it was not absolutely necessary? As will be argued below, one or
both of these two restrictions must be set aside or a challenger has no way of proving the lack of
absolute necessity when a political subdivision is split.
9
2. Stare decisis should not be controlling in this case because Albert v.
Commonwealth does not provide a standard by which reapportionment
plans are judged to determine whether or not they are contrary to law.
Although the principle of stare decisis promotes reliance on judicial decisions, it is "not a
vehicle for perpetuating error, but rather a legal concept which responds to the demands of
justice and, thus, permits the orderly growth processes of the law to flourish." Buckwalter v.
Borough of Phoenixville, 985 A.2d 588, 731 (Pa. 2009).
Petitioners argue that Albert does not give a standard of what conditions would need to be
proven to show a plan is contrary to law and thus unconstitutional. If a challenger cannot focus
on their specific political subdivision nor show an alternate plan, then the only proof that would
seem to be left would be to argue that there are too many divisions compared to previous years.
Yet, what was considered 'absolutely necessary' one decade may not be 'absolutely necessary'
in future years.
There is an overriding objective to have equality in population among the districts.
Albert, 790 A.2d at 994. Petitioners do not argue this fact. However the migration of population
over a decade will change which political subdivisions absolutely need to be divided.
Petitioners suggest that rather than looking to the number of splits in prior years, the
submission of alternate plans providing for a reduced number of splits while maintaining equal
populations in the Districts should be prima facie proof that their political subdivision was split
when not absolutely necessary. The burden should then shift to the Respondents to show cause
why their plan was absolutely necessary.
An alternate plan, as the one attached to the Petition, is not being submitted to take the
place of the Respondent's Plan, only to show evidence that the Respondent's Plan is contrary to
law. In allowing a challenger to present this evidence, this Court would need to expand their
10
decision in Albert, or expand it to allow a petitioner to show proof that their district was divided
when it was not absolutely necessary.
3. Case law dictates that, when interpreting Constitutional language, it
should be read "as the average person would understand it when they
voted on its adoption, and avoid strained or technical interpretations."
Respondents have not interpreted the "absolutely necessary" language of
the PA Constitution according to this concept.
Article II, Section 16 must have some meaning. Constitutional language should be
interpreted "as the average person would understand it when they voted on its adoption, and
avoid strained or technical interpretations." Buckwalter, 985 A.2d at 730. How would an
average person understand the language of "[u]nless absolutely necessary, no county, city,
incorporated town, borough, township or ward shall be divided in forming either a senatorial or
representative district." PA CONST art II, §16. The Albert decision would seem to hold that the
Constitutional language of Article II Section 16 means that a legislative reapportionment
commission should keep political subdivision splits to a minimum rather than reviewing if a
specific political subdivision split is 'absolutely necessary." Petitioners do not feel that an
average person would interpret Article II Section 16 in this manner. If a parent told a child
"unless absolutely necessary do not call me", then would the parent look at the number of times a
child called the parent or would the parent look at the reason for each call. Petitioners would
suggest that the parent would look at the facts of each call. It is respectfully argued that the
language of the Pennsylvania Constitution Article II, § 16 is telling the Legislative
Reapportionment Commission there must be an overwhelming reason for a plan to split a
political subdivision.
11
4. Petitioners have provided an Alternate Plan that demonstrates that the
splits created in the Final Plan were not "absolutely necessary." As such,
the burden should shift to respondents to prove the absolutely necessity of
the splits included in the Final Plan.
Petitioners are not in a position to express the real reason that Haverford Township was
divided in the Final Reapportionment Plan. It is suggested that once a petitioner offers prima
facie evidence that a division was not 'absolutely necessary'; it should then be the burden of the
Respondent to provide a compelling reason. If the Respondent argues that the division of
Haverford Township was absolutely necessary in order to maintain equal population between the
districts, then Respondent's argument has been debunked by the Alternate Plan that was
provided to Respondent by Representative Vitali and attached to the Petition.
It may be argued that the Respondent should not have to worry about an alternate plan
that eliminates a split or two. There are many ways to skin a cat. Although Petitioners will not
concede to this argument in general, in this specific case the alternate plan provided by
Representative Vitali reduces the number of splits in Delaware County significantly. The
Respondent's Final Plan can be reduced from 16 municipal splits to only 9 municipal splits.
This reduces the number of municipal splits almost in half.
It is respectfully requested that this Court recognize the large reduction of the number of
splits that the alternate plan eliminates. It is also important to point out that the alternate plan
only slightly varies the populations of each district from the populations accounted for in
Respondent's Final Plan.
Respondent's Final Plan has population ranges in the Districts, representing Delaware
County, from 61,218 to 63,571. The alternate plan has population ranges in the Districts,
representing Delaware County, from 61,139 to 63,021. The average House District statewide
would have a population of 62,573. Specifically, House District 166 under the Respondent's
12
Final Plan has a population of 61,262 while the alternate plan has a population of 61,119 and
would not divide Haverford Township.
It is therefore argued that maintaining equality of population is not the reason that
Haverford Township was divided in the Respondent's Final Plan. It is suggested that
Respondent's provide a compelling reason as to why it was 'absolutely necessary' to divide
Haverford Township. With the lack of a compelling reason, Respondent's Final Plan violates the
Pennsylvania Constitution Article II, § 16, and is contrary to law.
B.
The number of county splits in respondent's Final Plan exceeds the
number of splits that Your Honorable Court should allow.
The Albert case indicated that the 2001 Reapportionment Plan was constitutional as the
number of statewide County splits did not differ significantly from that of prior plans. Albert,
790 A.2d at 999. Footnote 12 contained in the Albert decision indicates that the following
County slips occurred in the following House Plans:
Year
Number of County Splits
2001
49
1991
49
1981
48
Id.
The Respondent's Final Plan contains 52 County splits in its House Plan. The Albert
opinion did not indicate how many County Splits would be deemed contrary to law, but Mr.
Justice Saylor indicated in a Concurring Opinion, joined by Mr. Justice Castille and Mr. Justice
Eakin that "the Court should not occupy an unduly passive role..." Id. at 999. Mr. Justice
Saylor went on to state "that facets of the Commission's present plan for reapportioning the
Pennsylvania Legislature test the outer limits of justifiable deference, at least in the absence of
13
some specific explanation for why the constitutional prerequisites of compactness and respect for
political subdivisions cannot be accommodated simultaneous with the maintenance of substantial
equality of population and enforcement of voting interests of protected groups in the manner
prescribed by federal law." Id. If the Court allows Respondent to add additional County splits
every ten years, the language of Article II, §16 will be meaningless. Since the Respondent's
Final Plan contains a greater number of County splits, and the Albert decision would indicate
that additional County splits would cause a plan to be contrary to law, it is requested that this
Court hold that without additional evidence from Respondents, the Final Plan is contrary to law.
14
CONCLUSION
For the foregoing reasons, the Petitioners ask this Court to determine that the
Final Plan is contrary to law under Section 17(d) of Article II of the Pennsylvania Constitution
and to remand this matter to the Commission with direction to make the following revisions to
the Final Plan: so as to include all of Haverford Township within the same representative district,
District 166.
15
ORDER AND OPINION BELOW
This is an appeal from the Final Plan of the 2011 Legislative Reapportionment
Committee, approved December 12, 2011. Said Final Plan is attached hereto.
Respectfully submitted,
ERIC RING, ESQUIRE
Attorney for Petitioners
2335 Darby Road
Havertown, PA 19083
(610) 789-4450
Supreme Court ID No. 77022
16
A