Petition for Writ of Certiorari — Loeper v. Mitchell

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91 e015 JUN @® 1992

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

F. JOSEPH LOEPER, ROBERT C. JUBELIRER,

D. MICHAEL FISHER, CHARLES LEMMOND, HANK

SALVATORE, NOAH WENGER AND MATTHEW RYAN

Petitioners,

Vv.

BRENDA K. MITCHELL, Secretary of the Commonwealth, and

WILLIAM BOEHM, Commissioner of the Bureau of

Commission, Elections, and Legislation,

Department of State, et al.

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF PENNSYLVANIA

JOHN P. KRILL, JR.* STEPHEN C. MACNETT

LINDA J. SHOREY SENATE OF PENNSYLVANIA

CONNIE COLLEGE 362 Main Capitol Building

KIRKPATRICK & LOCKHART Harrisburg, PA 17120

Payne Shoemaker Building

240 North Third Street EDWARD C. HUSSIE

Harrisburg, PA 17101 JOSEPH W. MURPHY

(717) 231-4500 HOUSE OF REPRESENTATIVES

Main Capitol Building

Harrisburg, PA 17120

Attorneys for F. Joseph Loeper,

Robert C. Jubelirer, D. Michael Fisher, Charles

Lemmond, Hank Salvatore, Noah Wenger and Matthew Ryan

June 8, 1992

* Counsel of Record

PONTE Bln

QUESTIONS PRESENTED

Does a court, in adopting a statewide congressional

redistricting plan, violate a duty, recognized by other state and

federal courts, to provide a full and fair hearing and to protect the

rights of the absent but affected public, when it limits itself to

considering only plans submitted by political factions within a

twelve-day notice period, closes the record four days thereafter and

rejects without consideration plans with lower population deviations

than its selected plan?

Does a court, in adopting a congressional redistricting plan

that substantially shifts minority populations, violate a duty,

recognized by other state and federal courts, when it fails to make

an affirmative and substantial inquiry under the Voting Rights Act

into the impacts of redistricting on minority populations?

May a State court, in adopting a congressional redistricting

plan, ignore the policies of the last legislatively-enacted plan, when

a federal court with concurrent jurisdiction over the same federal

question would be required to defer to such policies under White

v. Weiser?

May a State court, in adopting a congressional redistricting

plan, treat concems, such as minimizing the splitting of municipal

boundaries and making districts compact, as general, per se

justifications for higher-than-practicable population deviations,

when, under Karcher v. Daggett, a federal court would entertain

such factors as justifications only upon a proper showing and only

for legislatively-enacted plans?

PARTIES TO THE PROCEEDINGS 2

In addition to the Petitioners' and Respondents named in

the caption, the parties include:

Plaintiffs Below: Robert J. Mellow, Minority (Democrat)

Leader of the Senate of Pennsylvania; J. William Lincoln, Minority |

(Democrat) Whip of the Senate of Pennsylvania; Leonard J. ;

Bodack, Minority (Democrat) Caucus Chairman of the Senate of

Pennsylvania; Michael J. O’Pake, Minority (Democrat) Caucus

Secretary of the Senate of Pennsylvania; Patrick J. Stapleton,

Minority (Democrat) Policy Committee Chairman of the Senate of

Pennsylvania; Jeanette F. Reibman, Minority (Democrat) Caucus

Administrator of the Senate of Pennsylvania; State Senator Vincent

J. Fumo; and State Senator H. Craig Lewis, ("Plaintiffs").

Intervenors Below: Robert W. O'Donnell, Speaker

(Democrat) of the Pennsylvania House of Representatives; H.

William DeWeese, Majority (Democrat) Leader of the Pennsylvania

House of Representatives; Allen G. Kukovich, Chairman of the

Majority (Democrat) Policy Committee of the Pennsylvania House

of Representatives; State Representative Dwight Evans; State

Representative Frank Oliver; State Representative Thomas

Michlovic; State Representative Gordon J. Linton; and State

Representative Harold James, ("O’Donnell Intervenors");

Congressman Joseph M. McDade; Congressman John P.

Murtha, ("McDade/Murtha Intervenors");

State Representative Robert L. Freemen; State

Representative Karen A. Ritter, and State Representative Katherine i

McHale, ("Lehigh Valley Intervenors");

; Petitioners include members of the Majority (Republican) Leadership

of the Senate of Pennsylvania and the Minority (Republican) Leader of the

Pennsylvania House of Representatives.

Grace L. Jarvis; Margaret Tricarico; Alexandra Makosky;

and John H. Broujos, ("Broujos Intervenors");

State Representative Roy W. Comell;

State Senator David J. Brightbill;

Albert Swann; the Frederick Douglas Society; and the

Philadelphia Leadership Conference ("Swann Intervenors");

State Senator James C. Greenwood; Andrew L. Warren;

Mark S. Schweiker; and Sandra A. Miller (“Greenwood

Intervenors");

Edward J. Wilkes, Jr., Township of Upper Merion; Barbara

Frailey; William M. Wall; William M. Keim, III; Justus C. Barber,

Patricia Anne Buard; and Russell U. McLaughlin ("Upper Merion

Intervenors");

Congressman Lucien C. Blackwell.

=i -

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TABLE OF CONTENTS

QUESTIONS PRESENTED ................- i

PARTIES TO THE PROCEEDINGS .......... ii

py eg eee iv |

TABLE OF AUTHIORITIES ................ iv

ET a oboe i bees ccccevesces 1

PR a RANGA 4c bese seccecsess 1

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED ............. 2 |

pg ee 2

REASONS FOR GRANTING THE WRIT ....... 6

[A 4a Seb V We chee sc cSwek saseces 22

TABLE OF AUTHORITIES

FEDERAL CASES:

Armour v. Ohio, 775 F.Supp. 1044 (N.D. Ohio 1991) .... 15

Burton v. Sheheen, 1992 W.L. 106354

oe he cs a whe Ae a 5 ke Boe 12, 13

Chisom v. Roemer, __ U.S. __, 111 S.Ct

po SR rr are 16

Connor v. Finch, 431 U.S. 407 (1977) ............... 7

Greenfield v. Villager Industries,

GES ame, Oe Cae Gas EPPO 0 cece wcensecsccees 10, 11

Grish v. Jepsen, 521 F.2d 153

FPP Ser reer Ter ere Terre ee 10 7

o iy -

Grunin v. International House of Pancakes,

513 F.2d 114 (8th Cir. 1975),

cert. denied, 423 U.S. 864 (1975) .............0005- 10

Hastert v. State Board of Elections,

7717 F.Supp. 634 (N.S. Ill. 1991) ...........005. 8,9, 15

Karcher v. Daggett, 462 U.S. 725 (1983) .......... 19, 20

Ketchum v. Byrne, 740 F.2d 1398

(7th Cir. 1984), cert. denied,

re ee SE oo os hk x ab eee ae te ee 12, 14

Mullane v. Central Hanover Bank & Trust Co.,

a ee a i ROR oe ee ee 10

McNeil v. Springfield Park Dist.,

851 F.2d 937 (7th Cir. 1988),

cert. denied, 490 U.S. 1031 (1989) .............068- 15

Protective Committee v. Anderson,

SE Fe eee ARES ee ec 10

Quilter v. Voinovich, No. 91CV-2219

(N.D. Ohio, Jan. 31, 1992, probable

jurisdiction noted, 1992

U.S. LEXIS 3271 (No. 91-1618, June 1, 1992) ......... 14

Roman v. Sincock, 377 U.S. 695 (1964) ...........+4. 7

Scott v. Germano, 381 U.S. 407 (1965) ............4.. 18

Thornburg v. Gingles, 478 U.S. 30 (1986) ......... 13, 16

Whitcomb v. Chavis, 403 U.S. 124 (1971) ..........-.. 17

White v. Weiser, 412 U.S. 783 (1973) .........---- 16, 17

STATE CASES:

Legislature v. Reinecke,

ee I 636 cd wan 6 oe AO RRR CEASERS 8

Terrazas v. Ramirez, No. D-1817, 1991 Tex.

eos RB ft. KR ere 9, 10

Wilson v: Eu (Wilson 1),

Oe ee OD <6 i.e b:0 6.64% K0054 0d 8

Wilson v. Eu (Wilson II),

ae Oe ED “i's as Bae eee Rca eeeant 8, 15

CONSTITUTIONAL PROVISIONS:

Sheet Oe 0 V's si 50 see oe eee eee 2

ak eS SN er re 2, 18

es SE ESE nc cs ce unc vackeneua 2

oe Ge A 8 8 Pea ee Peer 2

Pe Ce Ss EY 5 uk ecb cn ee eke cee 2, 19

FEDERAL STATUTES:

eI ics ok0 ce be kncheeecreeaee 2

Se Se ED Ss 8 6k 0s be una 1

pg ree et 9

42 UBL, FISTS, DOOUOR 2 oie ce vesnns passim

STATE STATUTES:

Section 1802-A of the Pennsylvania Election Code,

Act of June 3, 1937, as amended, 25 P.S. §3571 ....... 2,4

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF PENNSYLVANIA

To the Honorable, the Chief Justice and

Associate Justices of the Supreme Court

of the United States:

The Petitioners, F. Joseph Loeper, Robert C. Jubelirer, D.

Michael Fisher, Charles Lemmond, Hank Salvatore, Noah Wenger

and Matthew Ryan, respectfully pray that a writ of certiorari issue

to review the judgment of the Supreme Court of Pennsylvania

entered in this matter on March 10, 1992.

OPINIONS BELOW

The March 27, 1992, Opinion of the Supreme Court of

Pennsylvania, in support of its March 10, 1992 Order, has not been

officially reported at this time. The Order and Opinion are set out

in the Appendix at Al.

JURISDICTION

The Pennsylvania Supreme Court’s Order was entered on

March 10, 1992.

The jurisdiction of this Court to review the decision of the

Supreme Court of Pennsylvania is invoked under 28 U.S.C.

§1257(a).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The constitutional provisions and statutes involved in this

case are: U.S. Const. art. I, §2, cl. 3; U.S. Const. art. I, §4, cl. 1;

U.S. Const. amend. XIV; U.S. Const. amend. XV; 42 U.S.C.

§1973; Pa. Const. art. II, §16; Pa. Const. art. II, §17; 2 U.S.C. §2a;

and 25 P.S. §3571. Pursuant to Supreme Court Rule 14.1(f), the

texts of constitutional and statutory provisions involved in this case

are set out in the Appendix at A108.

STATEMENT OF THE CASE

A. PROCEDURAL HISTORY

Plaintiff, Democrat State Senators commenced this case by

filing a complaint and a motion for a preliminary injunction in the

Commonwealth Court of Pennsylvania on January 28, 1992,

docketed at No. 25 M.D. 1992. The complaint requested the court:

(1) to declare unconstitutional section 1802-A of the Pennsylvania

Election Code, Act of June 3, 1937, as amended, 25 P.S. §3571,

the statutory provision enacted in 1982 detailing congressional

districts; (2) to enjoin implementation of the Pennsylvania primary

election schedule; and (3) to adopt a congressional redistricting

plan if the General Assembly failed to do so by February 11, 1922.

On January 30, 1992, Senior Judge Francis A. Barry of the

Commonwealth Court issued an order enjoining the Respondents,

State election officials, from implementing the election schedule and

requiring any person wishing to submit proposed congressional

reapportionment plans to intervene in the action and to submit _

proposed congressional redistricting plans to the Commonwealth

Court by February 11, 1992 ("Preliminary Injunction Order”).

(Appendix at A100.) By order dated February 12, 1992,

Commonwealth Court President Judge David W. Craig set a

hearing to consider the congressional redistricting plans submitted,

which. was to begin at 10 A.M. on February 13, 1992 and continue

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‘

through February 15, 1992. (Appendix at A102.) Subsequent to the

hearing, Petitioners (referred to in the state court proceedings as

"Loeper Intervenors”) filed an answer to the complaint, raising the

issues of: (1) compliance of any redistricting plan with the Voting

Rights Act; (2) the necessity for a full and fair hearing; and (3) the

necessity of fully considering all plans tendered to the court.

(Appendix at A149.)

On February 13, 1992, the Pennsylvania Supreme Court

issued a per curiam order assuming plenary jurisdiction of the

action, appointing President Judge Craig a master, and ordering him

to file a master’s report by February 26, 1992. (Appendix at

A106.) President Judge Craig filed the Master’s Report on

February 24, 1992. (The Master’s Report is appended to the March

26, 1992 opinion of the Supreme Court of Pennsyivania, Appendix

at Al6.) On March 3, 1992, the-Pennsylvania Supreme Court set

March 7, 1992 for oral argument on the exceptions to the Master’s

Report. (Appendix at A107.) The Pennsylvania Supreme Court

issued an order accepting the Recommendation of the Master on

March 10, 1992 and filed its opinion in support thereof on March

26, 1992. (The March 10 order, Appendix at A72, is appended to

the March 26, 1992 opinion, Appendix at A1.)

There were concurrent related proceedings in the United

States District Courts for the Middle and Eastem Districts of

Pennsylvania, where three separate actions concemi

Pennsylvania’s congressional reapportionment were filed. The first

two actions (Nerch v. Mitchell, Middle District Docket No. 3:CV-

92-95, and Bamess v. Mitchell, Eastern District Docket No. 92-CV-

593, which was transferred to the Middle District and initially

docketed at 1:CV-92-0155) were filed on January 29, 1992. The

third action (Ryan v. Mitchell, Middle District Docket No. 1:92-

CV-0166) was filed February 14, 1992. These actions were

assigned to the same three-judge panel, were consolidated in the

Middle District at Docket No. 3:92-CV-95, captioned Nerch v.

Mitchell, were stayed pending action by the Pennsylvania Supreme

Court, and were heard in a trial on the merits on March 29, 30, and

4, Fe

__———a ii

31, 1992. At the trial the three-judge panel heard evidence relating

to the validity of the plan being implemented by the respondent

State election officials pursuant to the order of the state supreme

court. The panel has not yet decided the case.

B. FACTUAL HISTORY

The last congressional redistricting in the Commonwealth

of Pennsylvania, enacted by its General Assembly in 1982,

provided for twenty-three congressional districts. See section 1802-

A of the Pennsylvania Election Code, 25 P.S. §3571. Based on

1990 census data, the Clerk of the House of Representatives of the

United States, in December 1990, issued a Certificate of

Entitlement to the Secretary of the Commonwealth, which reduced

Pennsylvania from twenty-three to twenty-one congressional

districts. The census data also showed that changes of population

since the 1980 census had resulted in congressional districts with

populations varying as much as 19.8%.

The General Assembly of the Commonwealth was

therefore required to redistrict the Commonwealth to reflect the

decrease in congressional districts and the changes in population.

The General Assembly has not yet enacted a redistricting plan. A

plan with zero deviation from the ideal, i.e. with districts of equal

population, would have 565,793 people in each district.

On February 13, 1992, at the beginning of the hearing and

before taking evidence, Judge Craig stated he would consider three

proposed plans from the Mellow Plaintiffs (Mellow Plans 1, 2, &

3) (one of which was later withdrawn), two proposed plans from

O’Donnell Intervenors (O'Donnell Plans A & B), one plan from

McDade/Murtha Intervenors (McDade/Murtha Plan), and one plan

from Loeper Intervenors (Loeper Original Plan). The Loeper

Intervenors were also permitied at that time to proceed at the

hearing with evidence on an amended version of their plan (Loeper

Amended Plan), that had lower population deviation than the plan

ultimately adopted by the court. A plan with near zero population

a

deviation (.0000265% maximum deviation; .0000025% average

deviation), offered by Petitioner Ryan and State Representative

Comell was excluded at the outset because it was submitted to the

court one day after the February 11, 1992 deadline established in

the court’s order twelve days earlier. (Transcript, Vol. 2-B at 129-

30, 132-33, Appendix at A136.)

Testimony on the various plans was heard over the next

three days. The Master also heard evidence from groups with

concems about the impact of reapportionment on specific regions

of the Commonwealth.

At the end of the hearing, on Saturday, February 15, 1992,

Judge Craig ruled that the evidence submitted regarding the Loeper

Amended Plan, which had lower population deviation than the plan

selected by the court (See Appendix at A147), would be used solely

for the purpose of showing the deficiencies in the Loeper Original

Plan. (Transcript, Vol. 3 at 137-44, Appendix at A136.) Plaintiffs,

whose plan was ultimately selected, sought to introduce expert

testimony conceming the voting rights impact of their plan but

Judge Craig refused to permit the witness to be called. (Transcript,

Vol. 3 at 209-10, 214, 222, Appendix at A142.) No voting rights

experts testified on any of the plans accepted for consideration by

the master.

Judge Craig stated that his report would recommend

adoption by the Pennsylvania Supreme Court of one of the

admitted plans and that he would not attempt to design a plan.

(Transcript, Vol. 2-A at 8-9, Appendix at A135.)

Judge Craig issued his Master’s Report on February 24,

1992. In their exceptions (Appendix at A150), Loeper Intervenors

raised the issues of: (1) a lack of a full and fair hearing due to the

exclusion of plans (exceptions 1-3 and 12); (2) the failure of the

Master to ensure that the adopted plan complied with the Voting

Rights Act (exceptions 5-6); and (3) use of an improper standard

for selecting a court adopted pian (exceptions 7-10). These issues

os

en

were also raised by Loeper Intervenors at oral argument before the

Pennsylvania Supreme Court on March 7, 1992.

REASONS FOR GRANTING THE WRIT

I. The Supreme Court of Pennsylvania adopted a

congressional redistricting plan in a manner

that deprived the parties of a full and fair

hearing, that failed to protect the rights of the

public, that is in conflict with the duty

recognized by other courts, and that presents

an important question regarding the proper

exercise of a court’s equity powers in a case

involving fundamental constitutional rights.

In adopting a statewide congressional redistricting plan, the

Supreme Court of Pennsylvania refused to consider any plan not

filed during a twelve-day period set by a preliminary injunction

order. The court refused to consider even amendments to filed

plans that would have improved them. The court also refused to

consider, through its Master or otherwise, drafting any alternative

plans of its own.

As a result, the redistricting plans considered by the court

were limited to two plans submitted by the Mellow Plaintiffs, who

are members of the State Senate Democrat Caucus, two plans

submitted by State House of Representatives Democrat Caucus

members, one plan submitted by Republican State Senators

(Petitioners here) and one plan submitted by certain incumbent

Congressmen.

Although Petitioners were not parties at the time the |

Preliminary Injunction Order set a twelve-day deadline for filing

plans, they managed to meet the deadline by filing a plan they had

introduced in the State Senate. They were, however, penalized at

the conclusion of the hearing for amending their plan to reduce the

- &

population deviation to .00954 percent maximum deviation, which

is lower than the maximum deviation of the plan selected by the

court. (See Appendix at Al47.) The Supreme Cour of

Pennsylvania did not disturb the ruling of its Master thai this

amended plan would be used "for the sole purpose of showing the

deficiencies in the [Petitioners’] original plan." (Appendix at

A140.) The superior amended plan offered by Petitioners was not

even used by the court to compare the meri's or deficiencies of the

other plans accepted for consideration, but was used solely to

penalize Petitioners.

In addition to rigidly enforcing the 12-day window for

filing plans, the state court accelerated and compressed to an

extraordinary degree the proceedings for consideration of plans.

One day after the deadline for filing plans, the court set a date for

a hearing on the plans. Two days after the deadline for filing

plans, the hearing began. The parties were severely limited in the

number of witnesses they could call. Although each party was

allowed to present evicence on the merits of its plan, the parties did

not have an adequate opportunity to study competing plans, much

less to develop evidence that would test the assumptions and

contentions of competing plans. The court refused to allow rebuttal

witnesses. Four days after the deadline for filing plans, the hearing

ended and-the record was closed. The court did not attempt to

modify any of the submitted plans even slightly, or to correct

errors, much less attempt to draft its own plan.

The Pennsylvania Supreme Court did not proceed "in a

manner ‘free from any taint of arbitrariness or discrimination’ as

required by this Court. Connor v. Finch, 431 U.S. 407, 415 (1977) |

(quoting Roman v. Sincock, 377 U.S. 695, 710 (1964)). Nor did it

assume any responsibility to ensure it obtained sufficient

information to make a decision that the plan adopted met all

constitutional, statutory and caselaw- requiréments.

The arbitrary exclusion of other options, and the haste with

which it moved, practically assured that the Supreme Court of

+

Pennsylvania would not adopt the best plan that could be drawn for

the Commonwealth. It also assured that the only players of

substance in determining the outcome of redistricting would be, at

most, a few political factions that had been aware of, or planning

for, litigation. No responsibility was assumed to protect the rights

of non-party voters. There was neither a full nor a fair hearing on

a matter of great public importance.

The Supreme Court of Pennsylvania’s arbitrary constriction

of its options is contrary to the view of other state and federal

courts that full and fair hearings, with ample opportunity for public

participation, should be provided when a court adopts a plan.

The Califomia Supreme Cour, for example, recently

adopted statewide congressional and legislative redistricting plans

after a four-month process that included public hearings, which

commenced within thirty days after the appointment of masters,

and a thirty-day period of briefing and public comment following

the filing of the masters’ recommendations. See Wilson v. Eu

("Wilson I"), 816 P.2d 1306, 1307 (Cal. 1991). During this

process, twenty-two (22) statewide congressional reapportionment

plans were submitted to the Califomia Supreme Court’s masters.

The California Supreme Court rejected all of these plans and

accepted one drafted by its masters. Wilson v. Eu ("Wilson II"),

823 P.2d 545 (Cal. 1992). The foundation of this careful process

is the Califomia Supreme Court’s recognition that, in

reapportionment cases, it has not just a duty of faimess to the

parties but a constitutional "duty to insure the electorate equal

protection of the laws" that can only be fulfilled by affording all

interested parties an opportunity to be heard. Legislature v.

Reinecke, 492 P.2d 385, 389 (1972).

The three-judge panel that recently adopted a congressional

redistricting plan for the state of Illinois, in Hastert v. State Board

of Elections, 717 F.Supp. 634 (N.D. Ill. 1991), also chose to pursue

a course of action that encouraged broad participation and the

development of proposed plans that met constitutional and statutory

as

requirements.” The Hastert court consolidated three

reapportionment actions and ordered publication, in six daily

newspapers, of a notice which invited anyone desiring to participate

to file a petition to intervene within twenty-eight days. The court

later consolidated a fourth reapportionment action and proposed

plan, filed a day after its intervention deadline, with the other

actions. Discovery was allowed for more than a month afterwards.

The many submitted plans were amended significantly before trial,

eliminating major areas of conflict and leaving two proposed plans

before the court, one of which was numerically precise.

The Supreme Court of Texas recently vacated a

redistricting order entered by a lower court where a sufficiently

open and public process was lacking for consideration of the public

interest in finding the optimum redistricting plan. Terrazas v.

Ramirez, No. D-1817, 1991 Tex. LEXIS 160 (Tex. Dec. 17, 1991).

The court explained the duty of the triat court in dealing with

apportionment cases:

Apportionment affects every person in the state,

yet only a very few parties can be involved in any

lawsuit challenging redistricting. The trial court

must attempt to consider the interest, not only of

the parties in the case, but of others who are not

present.

Id., at *20-21.

The Supreme Court of Texas analogized the

reapportionment lawsuit with other types of cases, such as class

action settlements and school desegregation cases, where "the

individuals or groups to be protected are those who are not

. The Circuit Courts of Appeals do not have jurisdiction over statewide

reapportionment cases, which are heard by three-judge district court panels,

with appeals directly to this Court. 28 U.S.C. §2284(a).

xr

participants in the litigation but whose rights and interests are

affected thereby.” /d., at *22.

When approving class action settlements, "the district court

acts as a fiduciary who must serve as a guardian of the rights of

absent class members. ... The court cannot accept a settlement

that the proponents have not shown to be fair, reasonable, and

adequate." Grunin v. International House of Pancakes, 513 F.2d

114, 125 (8th Cir. 1975), cert. denied, 423 U.S. 864 (1975)

(citations omitted). As the Third Circuit recognized in Grish v.

Jepsen, 521 F.2d 153 (3d Cir. 1975), when reviewing a class action

settlement approved by the trial court:

"It is essential . . . that a reviewing court have

some basis for distinguishing between well-

reasoned conclusions arrived at after a

comprehensive consideration of all relevant

factors, and mere boiler plate approval phrased in

appropriate language but unsupporied by

evaluation of the facts or analysis of the law.’

Id. at 159 (quoting Protective Committee v. Anderson, 390 U.S.

414, 434 (1968)). The Third Circuit held that "the district court

did not live up to its fiduciary responsibility, as guardian of the

rights of the absentee class members in approving the settlement

based upon the inadequate record before it." /d. at 157.

The haste with which the state court conducted and

concluded the hearings, excluding any effort by the parties to

improve or to expand its options, was also inconsistent with due

process. In Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306 (1950), this Court stated that notice “must afford a

reasonable time for those interested to make their appearance.” 339

U.S. at 314. The decision in Mutiane was relied upon by the Third

Circuit in Greenfield v. Villager Industries, 483 F.2d 824 (3d Cir.

1973), to reject a thirty day proof of claim period as insufficient.

se

Pro forma gestures will not suffice for notice which affords an

adequate Opportunity to respond and to prepare. /d. at 834.

As the Supreme Court of Texas _ recognized,

reapportionment cases have a much broader effect than merely

resolving the conflict between the parties before the court.

Therefore, a fiduciary duty, similar to that imposed on courts

considering class action settlements and school desegregation cases,

should be imposed on courts dealing with reapportionment cases.

The conduct of the state court proceedings in this case were

inconsistent with such a duty. The duty should be no less rigorous

for a state court than for a federal court since fundamental federal

constitutional rights are at stake.

This Court should consider whether any court entertaining

the adoption of a reapportionment plan must take affirmative steps

to obtain all information needed to assure that the plan complies

with constitutional, statutory and caselaw requirements. This Court

should consider whether it is sufficient for a court, whether state or

federal, to play only the role of a referee, allowing competing

parties to limit a court’s options by the way they frame their

proposals. Petitioners suggest that, since a court must do more in

mere commercial class action litigation, it is inconceivable that a

court may be less protective in cases involving constitutional rights

of the public. ;

Il. The Supreme Court of Pennsylvania’s failure to

make an affirmative and substantial inquiry

into the impacts of redistricting under the

Voting Rights Act conflicts with the duty

recognized by other courts and presents

important questions of federal law which have

not been, but should be, settled by this court.

The Supreme Court of Pennsylvania adopted a plan that:

(1) reduced the African-American population percentage in

|

Pennsylvania's only previous majority-minority congressional

district (i.e., district in which African-Americans were an effective

majority of the voters) by 19 percentage points; (2) increased the

African-American population in an adjacent congressional district,

so that, for the first time, a second congressional district in

Pennsylvania would have more than a 50 percent African-American

population; and (3) diluted the African-American population in

Pittsburgh's Fourteenth Congressional District from its previous

level of approximately 23 percent to approximately 17 percent.

Each of these three actions was handled in a manner that conflicts

with the duty recognized by other courts of studying the impact of

such drastic shifts.

The retrogression of African-Americans in Philadelphia's

Second Congressional District was done over the opposition of the

incumbent African-American Congressman. (Appendix at A35.)

The court reduced the African-American population in this district

below the 65 percent level that has been gencrally accepted by the

federal courts as a benchmark or guideline for the effectiveness of

minority representation. Ketchum v. Byrne, 740 F.2d 1398

(7th Cir. 1984), cert. denied, 471 U.S. 1135 (1985). No expert |

testimony was heard regarding the impact on the ability of African-

American voters in this district to continue to have an opportunity

to elect a congressman of their choice, as is their right under

section 2 of the Voting Rights Act, 42 U.S.C. §1973. In fact,

Mellow Plaintiffs themselves sought to offer testimony from an

expert witness on this issue but were denied permission by the

Master, who rigidly limited evidence at the hearing. (Appendix at

A136-37, A142-46.)

Other courts that have addressed setting an appropriate

minority population percentage for a district have made a point of

obtaining extensive testimony and both statistical and expert

evidence, that specifically addresses impacis within the

configuration of the proposed districts. For example, in Burton v.

Sheheen, 1992 W.L. 106354 (D.S.C. May 1, 1992), a three-judge

court heard extensive expert testimony on voting rights issues from

.

experts with respect to the section 2 preconditions set forth in

Thornburg v. Gingles, 478 U.S. 30 (1986). This testimony

consisted, in part, of testimony of racial polarization based on

extreme case analysis and bivariate ecological regression, the type

of expert analysis on which the Court relied in Gingles. The court,

noting that it was not deciding whether the creation of a majority-

minority district was mandated, adopted a congressional

redistricting plan containing such a district, explaining:

The application of [section] 2 to this case has its

genesis in the admonition of the Supreme Count in

Connor v. Finch, 431 U.S. 407, 425 (1977) that ’it

is imperative for the District Court, in drawing up

a new plan, to make every effort not only to

comply with the established constitutional

standards, but also to allay suspicions and avoid

the creation of concems that might lead to new

constitutional challenges.’ It would be

incongruous for the court to adopt a plan which

did not comport with the standards and guidelines

of §2.

1992 W.L. 106354 at *15.

The Pennsylvania Supreme Court’s creation of the second

African-American majority district in Philadelphia was based on its

perception that "[w]hen possible, an increase in the number of

minority-in-the-majority districts is constitutionally required,” citing

Thornburg v. Gingles, 478 U.S. 30 (1986). (Appendix at A34.)

The Pennsylvania Supreme Court received no evidence on whether

African-Americans in this district suffered any impairment of their

Opportunity to elect a representative of their choice. The court

likewise heard no evidence on whether African-American voters in

a district with this configuration would be an effective majority as

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opposed to a numeric majority.* The lack of factual inquiry,

though, would be immaterial if the Pennsylvania Supreme Court's

view of federal law were correct.

The Pennsyivania Supreme Court's interpretation of federal

law on this issue, however, is in conflict with that of the United

States District Court for the Northem District of Ohio, where a

three-judge panel recently held that the Voting Rights Act and

federal precedent do not dictate such a per se requirement. Quilter

v. Voinovich, No. 91CV-2219 (N.D. Ohio Jan. 31, 1992), probable

jurisdiction noted, 1992 U.S. LEXIS 3271 (No. 91-1618, June 1,

1992). In Quilter a legislatively enacted plan was overtumed by a

panel that found no factual predicate for the creation of majority-

minority districts.

In Pittsburgh’s Fourteenth Congressional District, the

Pennsylvania Supreme Court reduced the African-American

population by one-fourth its former weight in the district, again

without any affirmative inquiry into the consequences. The Court

did not look at whether a cohesive minority voting group existed,

whether it had achieved any influence in its district, whether its

4 As explained by the Seventh Circuit in Ketchum, 740 F.2d at 1415,

experience has shown that a mere numeric majority may not protect minority

voting rights:

A guideline of 65% of total population has been adopted

and maintained for years by the Department of Justice and

by reapportionment experts and has been specifically

approved by the Supreme Court in circumstances

comparable to those before us as representing the

proportion of minority population reasonably required to

ensure minorities a fair opportunity to elect a candidate of

their choice. This figure is derived by augmenting a

simple majority with an additional 5% for young

population, 5% for low voter registration and 5% for low

voter turn-out, for a total increment of 15%. This leads to

a total target figure of 65% of total population.

-14-

eT

influence would be diminished or destroyed, or whether racial

block voting affected the group’s influence.

As acknowledged by the Califomia Supreme Court in

Wilson II, 823 P.2d at 567-68, there is a split among the courts on

the question of whether there can be a Voting Rights Act claim

arising from a single-member district where a minority group does

not constitute a majority of the population. The three-judge district

court in Armour v. Ohio, 775 F.Supp. 1044 (N.D. Ohio 1991),

recognized that influence districts can exist and deserve

consideration under the Voting Rights Act. The three-judge district

court in Hastert v. State Board of Elections, 777 F.Supp. 634 (N.D.

Ill. 1991), disagreed with the Armour court, a position with which

the Pennsylvania Supreme Court has tacitly aligned itself. Also

contra on this issue is McNeil v. Springfield Park Dist., 851 F.2d

937 (7th Cir. 1988), cert. denied, 490 U.S. 1031 (1989).

The California Supreme Court resolved the issue for itself

by assuming that all sizable minorities were cohesive as voting

groups and by maximizing minority representation in every

congressional district possible. Wilson //, 823 P.2d at 567-68.*

By taking this approach, the Califomia Supreme Court in Wilson

II “endeavored to protect the combined group’s voting potential in

accordance with section 2 [of the Voting Rights Act]." 823 P.2d

at 867. Pennsylvania's approach is in conflict with this.

Whether the formation of minority influence districts

should be the subject of an affirmative inquiry under the Voting

Rights Act by a court adopting a redistricting plan is an important

question that this court should resolve in light of these ongoing

differences of interpretation, which all focus on what this court

4

The California Supreme Court approved the Report and

Recommendations of Special Masters on Reapportionment with regard to the

Masters’ interpretation of the Voting Rights Act and appended the Masters’

Report to the Court's opinion. See 823 P.2d at 559.

= 2

meant in Thornburg v. Gingles, 478 U.S. 30 (1986), as interpreted

by Chisom v. Roemer, ____ U.S. ___, 111 S.Ct. 2354, 115 L.Ed.2d

348 (1991).

For all the Pennsylvania congressional districts with

recognized minority populations, the common issue presented by

the Pennsylvania Supreme Court’s approach to redistricting is this:

when a legislature has failed to enact a constitutional plan, must the

court, in adopting its own plan, conduct an affirmative and

substantial inquiry into the impact of redistricting on minority

populations? The question is one of obvious public importance.

As illustrated above, it is also one that calls for an answer from this

court because of the disparate approaches in state and federal

courts.

III. The Pennsylvania Supreme Court, in adopting

a congressional redistricting plan, ignored the

policies of the last legislatively-enacted plan, in

a manner which is in conflict with an

applicable decision of this court and contrary

to important and fundamental public interests.

The Pennsylvania Supreme Court's Opinion, and the

Master’s Report, lack any consideration of the last legislatively-

enacted plan in Pennsylvania. The court made no effort to

determine the policies of that plan and to find a plan fit for court

adoption that both protected voting rights and best conformed to

the last expression of the will of Pennsylvania's legislature. This

is in direct conflict with the decision of this court in White v.

Weiser, 412 U.S. 783 (1973).

, Petitioners are not asking the Court, though, to decide whether a

minority influence district, or the lack of one, can give rise to a cause of action

under section 2 of the Voting Rights Act.

=’?

Te

In White, this Court held that the district court had

appropriately concluded that the legislatively-enacted congressional

redistricting plan violated the one man, one vote rule, but that the

district court, in adopting its own congressional reapportionment

plan, erred in not honoring valid state policies embodied in the

unconstitutional enactment. The district court should have chosen

a plan that contained the same basic district configurations as the

unconstitutional apportionment statute while remedying the

impermissible population variations. In reaching this conclusion,

this Court noted that, while the plan chosen by the district court

might have contained districts that were "more compact,” the

district court could not ignore "whatever state goals were

emoodied" in the unconstitutional reapportionment statute and

which were kept in the proposed plan with the same basic district

configurations. 412 U.S. at 796. This Court further stated:

""(T}he District Court erred in so broadly brushing aside state

apportionment policy without solid constitutional or equitable

grounds for doing so.’" /d. (quoting Whitcomb v. Chavis, 403 U.S.

124, 160 (1971)).

The Supreme Court of Pennsylvania did exactly what this

court found to be error in White. The court ignored the last

legislatively-enacted expression of state policy with respect to

congressional reapportionment by failing to consider which of the

plans before it was most consistent with the existing congressional

reapportionment statute.

The Court's failure is illustrated by the changes it made to

the congressional districts in and around the City of Pittsburgh.

Under the statute, the Fourteenth Congressional District included

the City of Pittsburgh and certain suburbs on its east side that have

substantial African-American populations and which are not

affluent. The Eighteenth Congressional District, under the same

Statute, surrounded the city in a horseshoe shape on the north, west

and south sides. The communities in this horseshoe are largely

white, affluent bedroom communities. The Supreme Court of

Pennsylvania itself recognized that these suburban communities on

-.

the north, west and south constituted a community of interests that

was different than that of the city and its eastem suburbs.

(Master's Report, Finding of Fact 28, Appendix at A43.)

What the Supreme Court of Pennsylvania failed to

acknowledge was that this community of interests was recognized,

and embodied as a legislative policy, in the previous redistricting

Statute. The court's plan broke up the horseshoe-shaped Eighteenth

District and distributed it among four other districts. The inner-city

district was combined with the northem suburbs. The westem

suburbs were combined with a district that extended outside the

metropolitan area into other counties, and the African-American

populations in the easter suburbs joined not with the city but with,

among other areas, affluent white suburbs in the northeast and

south of the city.

As in White, there were plans proffered to the Supreme

Court of Pennsylvania that were more consistent with the

configurations of the last legislatively-enacted plan. The Loeper

Amended Plan, for example, proffered by Petitioners, would have

preserved both the horseshoe-shaped configuration of the

Eighteenth District in the suburbs and maintained the African-

American population of the Fourteenth District by joining the city

and certain of its eastem suburbs. Like the plan initially rejected by

the district court in White, it also had a lower population deviation

than the Court’s selected plan.

The decision of the Supreme Court of Pennsylvania stands

in defiance of an important principle of federal law. Under article

1, section 4 of the United States Constitution, the prerogative of

redistricting is given to the legislatures of the states, subject to

congressional regulation. This Court has welcomed state courts to

play an active role in redistricting litigation. See e.g., Scott v.

Germano, 381 U.S. 407 (1965). It is very important, therefore, as

state courts become more active, that they apply, and be held to,

the same rigorous standards that prevail in federal district courts.

~ 2

When a state court, as here, acts as a court of general

jurisdiction in an area where its jurisdiction is concurrent with that

of the federal courts the same standard should apply.® It should no

more invent policies for the state in congressional redistricting than

a federal court. This Court should act to assure that federal

questions are addressed in a consistent fashion, regardless of

whether the litigation is in federal or state court.

IV. The Pennsylvania Supreme Court erred in

applying this court’s decision in Karcher vy.

Daggett, 462 U.S. 725 (1983), in a manner that

is an egregious departure from this court’s

guidance and that has important public

consequences for Pennsylvanians.

In Karcher, this court articulated a standard by which a

court must review a legislatively-enacted redistricting plan. The

Standard bifurcates the burden of proof. First, the plaintiff must

demonstrate that the plan does not achieve the lowest practicable

population deviation. Then, if that is established, the burden of

proof shifts to the defendant, typically the state election officials,

to demonstrate that "each significant variance between districts was

necessary to achieve some legitimate goal." 462 U.S. at 731. As

the court stated in Karcher:

White v. Weiser demonstrates that we are willing

to defer to state legislative policies, so long as

they are consistent with constitutional norms, even

Under article II, section 17 of the Pennsylvania Constitution

(Appendix at A110), the Pennsylvania Supreme Court has a role in redistricting

the state legislature that is quasi-executive and quasi-legislative as well as

judicial. The Pennsylvania Constitution, however, is silent on congressional

redistricting. The Pennsylvania Supreme Court was acting in this case solely

as a court of general jurisdiction concurrent with that of the federal courts in

congressional redistricting matters.

-19-

~_—if they require small differences in the population

of congressional districts... . Any number of

consistently applied legislative policies might

justify some variance, including, for instance,

making districts compact, respecting municipal

boundaries, preserving the cores of prior districts,

and avoiding contests between incumbent

representatives.

Id. at 740 (citations omitted).

The Supreme Court of Pennsylvania erred by assuming that

the legislative policies that this Court said “might justify" some

variance were per se justifications that would overcome the

deficiencies of a plan with less than ideal population deviation.

The Pennsylvania Supreme Court's opinion merely cites the

Karcher policies without stating why any policy, such as respecting

municipal boundaries, is of any importance in Pennsylvania for

congressional districts. The Pennsylvania Supreme Court also

overlooked the fact that Karcher was referring to legislative

policies rather than judicial policies. Such policies may be

embodied in a state constitution, a previously enacted redistricting

statute or in other state statutes. No such references were cited by

Pennsylvania’s Supreme Court.

Furthermore, Karcher requires that any stated justification

for a population variance must have been consistently and

uniformly applied throughout the state. The justifications given by

the Pennsylvania Supreme Court, in addition to not being identified

as State legislative policy, were also not consistently and uniformly

applied.

The court, for example, attached importance to the

avoidance of splitting political subdivisions. However, a review of

the court’s plan (Appendix at A76) shows that while there were no

municipal splits in westem Pennsylvania, there were numerous

- 2.

municipal splits in eastern Pennsylvania. No explanation for the

failure to apply this Principle uniformly was given by the court.

A desire "to preserve communities of interest" (Appendix

at A7) was another purported justification for population deviations

that was not consistently and uniformly applied. The Master found

that the City of Pittsburgh "has more in common with the close-in

easterly suburbs and in the Monongahela Valley’s former

Steelmaking areas than with the suburbs in the north, west and

south." (Master’s Report, Finding of Fact 28, Appendix at A43).

However, as discussed above, in Part III of this Petition, the court's

plan disregarded its own findings and split these recognized

communities of interest. (See description and map of court adopted

plan, Appendix at A69-70, A76-89.) This is in stark contrast to the

plan’s treatment of rural North Middleton Township. Other plans

considered by the court placed the township in the Ninth

Congressional District. The court chose to keep the township in

the Nineteenth District because of evidence Supporting the “affinity

of North Middletown Township . . . with other communities in the

Nineteenth Congressional District, rather than in the Ninth."

(Master’s Report, Finding of Fact No. 23, Appendix at A39.)

The Pennsylvania Supreme Court’s misinterpretation of

Karcher is compounded by the fact that Karcher does not apply at

all. The court failed to perceive that Karcher applies to the review

by a court of a legislatively enacted plan, while White v. Weiser

sets the standard by which a court should proceed in adopting its

own plan where a legislature has failed to act. Observing the

distinction between Karcher and White is important since it is the

only way to achieve the due deference to legislative policy that this

Court has called for in all redistricting cases. Since fundamental

federal constitutional rights are involved, it is also important that

State courts adhere to the same standard as the federal courts.

<-.

CONCLUSION

For the foregoing reasons, a writ of certiorari should issue

to the Supreme Court of Pennsylvania.

June 8, 1992

*Counsel of Record

Respectfully submitted,

JOHN P. KRILL, JR.*

LINDA J. SHOREY

CONNIE COLLEGE

KIRKPATRICK & LOCKHART

Payne Shoemaker Building

240 North Third Street

Harrisburg, PA 17101

(717) 231-4500

STEPHEN C. MACNETT

SENATE OF PENNSYLVANIA

362 Main Capitol Building

Harrisburg, PA 17120

EDWARD C. HUSSIE

JOSEPH W. MURPHY

HOUSE OF REPRESENTATIVES

Main Capitol Building

Harrisburg, PA 17120

Attorneys for F. Joseph Loeper,

Robert C. Jubelirer, D. Michael

Fisher, Charles Lemmond, Hank

Salvatore, Noah Wenger and

Matthew Ryan

7.