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No. 1 WM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment
Commission, dated December 12, 2011
ARGUED: January 23, 2012
[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31- 2012]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
No. 7 MM 2012
AMANDA E. HOLT, ELAINE TOMLIN, LOUIS
NUDI, DIANE EDBRIL, DARIEL I. JAMIESON,
LORA LAVIN, JAMES YOEST, JEFFREY
MEYER, CHRISTOPHER H. FROMME,
TIMOTHY F. BURNETT, CHRIS HERTZOG,
GLEN ECKHART, and MARY FRANCES
BALLARD,
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment
Commission, dated December 12, 2011
Appellants
ARGUED: January 23, 2012
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: : : : : : : : : : : : : : : : : : : : : : :
2011 LEGISLATIVE REAPPORTIONMENT
COMMISSION,
Appellee
JUDITH
SENATOR
SENATOR
JAY COSTA,
LAWRENCE M. FARNESE, JR., SENATOR
CHRISTINE M. TARTAGLIONE, SENATOR
SHIRLEY M. KITCHEN, SENATOR LEANNA
M. WASHINGTON, SENATOR MICHAEL J.
STACK, SENATOR VINCENT J. HUGHES,
SENATOR ANTHONY H. WILLIAMS,
SENATOR
SCHWANK,
SENATOR JOHN T. YUDICHAK, SENATOR
DAYLIN LEACH, SENATOR LISA M.
BOSCOLA,
E.
DINNIMAN, SENATOR JOHN P. BLAKE,
SENATOR
KASUNIC,
SENATOR JOHN N. WOZNIAK, SENATOR
JIM FERLO, SENATOR WAYNE D.
FONTANA,
R.
BREWSTER, and SENATOR TIMOTHY J.
SOLOBAY,
SENATOR
SENATOR
RICHARD
ANDREW
JAMES
A.
L.
Appellants
v.
v.
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2011 LEGISLATIVE REAPPORTIONMENT
COMMISSION,
Appellee
MAYOR CAROLYN COMITTA; COUNCIL
PRESIDENT HOLLY BROWN; WILLIAM J.
SCOTT, JR.; HERBERT A. SCHWABE, II;
JANE HEALD CLOSE; FLOYD ROBERT
BIELSKI; DAVID LALEIKE; E. BRIAN
ABBOTT; NATHANIEL SMITH; and W.
DONALD BRACELAND,
No. 2 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment
Commission, dated December 12, 2011
Appellants
ARGUED: January 23, 2012
v.
v.
Appellee
Appellants
Appellee
Appellants
2011 LEGISLATIVE REAPPORTIONMENT
COMMISSION,
MAYOR LEO SCODA and COUNCIL
PERSON JENNIFER MAYO,
No. 3 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment
Commission, dated December 12, 2011
ARGUED: January 23, 2012
2011 LEGISLATIVE REAPPORTIONMENT
COMMISSION,
J. AMDUR,
THOMAS SCHIFFER, ALISON BAUSMAN,
JOAN TARKA,
RACHEL
LAWRENCE W. ABEL, MARGARET G.
MORSCHECK, LAWRENCE J. CHRZAN,
JULIA SCHULTZ and SHIRLEY RESNICK,
No. 4 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment
Commission, dated December 12, 2011
[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 2
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ARGUED: January 23, 2012
2011 LEGISLATIVE REAPPORTIONMENT
COMMISSION,
SEKELA COLES, CYNTHIA JACKSON and
LEE TALIAFERRO,
No. 5 MM 2012
v.
v.
v.
v.
Appellee
Appellants
Appellee
Appellant
Appellee
Appellants
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment
Commission, dated December 12, 2011
SUBMITTED: January 23, 2012
2011 LEGISLATIVE REAPPORTIONMENT
COMMISSION,
PATTY KIM,
No. 6 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment
Commission, dated December 12, 2011
2011 LEGISLATIVE REAPPORTIONMENT
COMMISSION,
ARGUED: January 23, 2012
EDWARD J. BRADLEY, JR., PATRICK
MCKENNA, JR., DOROTHY GALLAGHER,
RICHARD H. LOWE, and JOHN F. "JACK"
BYRNE,
No. 8 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment
Commission, dated December 12, 2011
ARGUED: January 23, 2012
[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 3
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2011 LEGISLATIVE REAPPORTIONMENT
COMMISSION,
DENNIS J. BAYLOR,
No. 9 MM 2012
Appellee
Appellant
Appellee
Appellant
Appellee
Appellant
Appellee
v.
v.
v.
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment
Commission, dated December 12, 2011
2011 LEGISLATIVE REAPPORTIONMENT
COMMISSION,
ARGUED: January 23, 2012
ANDREW DOMINICK ALOSI,
No. 10 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment
Commission, dated December 12, 2011
2011 LEGISLATIVE REAPPORTIONMENT
COMMISSION,
SUBMITTED: January 23, 2012
CARLOS A. ZAYAS,
No. 17 MM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment
Commission, dated December 12, 2011
2011 LEGISLATIVE REAPPORTIONMENT
COMMISSION,
SUBMITTED: January 24, 2012
[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 4
: : : : : : : : : : : : : : : :
WILLIAM C. KORTZ, MICHELLE L. VEZZANI,
MICHAEL E. CHEREPKO, GREGORY
EROSENKO, JOYCE POPOVICH, JOHN
BEVEC, LISA BASHIOUM, and RICHARD
CHRISTOPHER,
No. 4 WM 2012
Appeal from the Legislative
Reapportionment Plan of the 2011
Legislative Reapportionment
Commission, dated December 12, 2011
Appellants
v.
2011 LEGISLATIVE REAPPORTIONMENT
COMMISSION,
Appellee
DISSENTING OPINION
MADAME JUSTICE ORIE MELVIN
DECIDED: January 25, 2012
OPINION FILED: February 3, 2012
The Majority Opinion expeditiously provides significant breadth in scope and
history of legislative redistricting, but I remain convinced that the Final Plan should be
affirmed. The complaints of the various appellants notwithstanding, it is clear that there
is no perfect plan. The Majority “recalibrates” the interplay of
the constitutional
requirements found in Section 16 of the Pennsylvania Constitution. In so doing, it
invalidates the 2011 Final Plan, which was carefully constructed by the Legislative
Reapportionment Commission (LRC) in accordance with our prior pronouncements
concerning redistricting in the Commonwealth. In light of the significant public interest
and exigencies of the electoral process, I believe that the Majority’s disposition is both
unprecedented and unnecessary. Accordingly, I must dissent.
While our reapportionment precedent is limited, it unequivocally demonstrates that
our overarching concern in redistricting matters is substantial equality of population. See
[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 5
Specter v. Levin, 293 A.2d 15, 19 (Pa. 1972) (“Section 16’s desire for districts that are
‘compact’ must also yield, if need be, ‘to the overriding objective . . . (of) substantial
equality of population.’” (quoting Reynolds v. Sims, 377 U.S. 533, 579 (1964)); In re
Reapportionment Plan for the Pa. General Assembly (In re 1981 Reapportionment), 442
A.2d 661, 665 (Pa. 1981) (articulating same principle); In re 1991 Pa. Legislative
Reapportionment Comm’n, 609 A.2d 132, 138 (Pa. 1992) (same); Albert v. 2001
Legislative Reapportionment Comm’n, 790 A.2d 989, 993-94 (Pa. 2002) (same).
Indeed, the Majority recognizes this to be true. See Majority Opinion, slip op. at 77
(“[T]his Court’s prior decisions emphasized equality of population as the primary
directive in the redistricting efforts of the LRC.”
(emphasis added)). 1 This
acknowledgement, irrespective of any qualifying language, highlights the fallacy that the
current plan is contrary to law. In view of this Court’s precedent, I find that the LRC acted
in good faith in adopting the 2011 Final Plan. Consistent with our prior pronouncements,
the LRC promulgated a plan that ultimately achieved substantial equality of population
while balancing the other mandates in Section 16.
As justification for the conclusion that the 2011 Final Plan is unconstitutional, the
Majority cites an alleged excessive number of subdivision splits, admonishing that prior
plans cannot serve as a benchmark for scrutinizing subsequent plans. Despite this
contention, we have undertaken a comparative approach
in
the recent past.
Specifically, in Albert we compared the 2001 Final Plan with those previously approved
1 While the Majority opines that our previous emphasis on population equality derived
from federal law, see Majority Opinion, slip op. at 84 (“Rather than deriving from our
Constitution itself, the primacy of population equality in redistricting, which is clearly
established in our decisional law, derives from federal decisional law . . . .”), our case law
states otherwise. See In re 1981 Reapportionment, 442 A.2d at 665 (“In Specter, this
Court also made clear that, as a matter of both federal and state law, equality of
population must be the controlling consideration in the apportionment of legislative
seats.” (emphasis added)).
[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 6
by this Court. Finding that the number of subdivision splits was similar, we determined
the 2001 Plan withstood constitutional scrutiny. Albert, 790 A.2d at 998 (“[The
Commission] claims that . . . no political subdivision was divided in forming a district
unless absolutely necessary. Upon comparison of the instant Final Plan with those
previously approved by this Court, we agree.”); id. at 999 n.12.2 The Majority has not
convinced me that the LRC’s use of the same exercise herein produced a constitutionally
deficient plan.
I find it unnecessary to criticize the timeliness of the LRC’s actions, see Majority
Opinion, slip op. at 14-17, and I disagree that it unnecessarily delayed this Court’s
disposition. The LRC’s actions comported to the time frame set forth in Article 2, Section
17(c) of our Constitution, and both the LRC and this Court have proceeded with due
diligence in this matter.
The LRC faithfully applied our existing precedent in preparing the 2011 Final Plan.
By failing to uphold the LRC’s reliance on our prior decisions, the Majority interjects
uncertainty into future redistricting cases. See Majority Opinion, slip op. at 78-79.
Moreover, by declaring that the 2001 Plan remains in effect, the Majority ensures that
certain districts will be overrepresented while others will be underrepresented, as
evidenced by population shifts from 2000 to 2010. Such a situation is untenable.
Finally, it is a fiction for the Majority to represent that the initial opportunity to “go forward”
is upon remand. Majority Opinion, slip op. at 8. Rather, in my view, it is a step back.
The LRC produced a reasoned plan that comports both with our decisional law and our
2 In making this point, I do not advocate adopting a maximum or minimum variation or
setting a ceiling on permissible subdivision splits. I simply wish to reiterate that prior
plans are instructive when considering whether a current plan comports with
constitutional requirements.
[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 7
Constitution. I am amenable to guidelines but only if they are truly prospective, i.e.,
applicable to the next decennial redistricting.
Having reviewed the Final Plan as a whole, and in view of existing precedent, I
conclude that it is constitutionally permissible. Therefore, I would approve the Final
Plan, thus allowing it to have “the force of law.” Pa. Const. art. 2, § 17(e).
[J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012] - 8
