Opinion
No. 50864.
June 30, 1977. Rehearing Denied October 28, 1977.
Alberto R. Cardenas, Miami, for petitioners.
Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., and Thomas McLin Beason, Asst. Atty. Gen., Stuart Simon, County Atty., and Alan J. Kan, Asst. County Atty., for respondents.
During its regular session in 1972, the Legislature, by Senate Joint Resolution Number 1305, apportioned the state into forty consecutively numbered Senate districts and one-hundred twenty consecutively numbered House districts. In some cases, in both the Senate and House plans, two or more districts were assigned identical territory.
Multiple districts with identical territory are authorized by Article III, Section 16(a), Florida Constitution, and are referred to as multi-member districts.
Following its adoption, Senate Joint Resolution 1305 was presented to this Court by the Attorney General, and the Court, in In re Apportionment Law Appearing as Senate Joint Resolution Number 1305, 1972 Regular Session, 263 So.2d 797 (Fla. 1972), approved the plan of apportionment, including the multi-member districts.
Judicial review is required by Article III, Section 16(c), Florida Constitution:
"JUDICIAL REVIEW OF APPORTIONMENT. Within fifteen days after the passage of the joint resolution of apportionment, the attorney general shall petition the supreme court of the state for a declaratory judgment determining the validity of the apportionment. The supreme court, in accordance with its rules, shall permit adversary interests to present their views and, within thirty days from the filing of the petition, shall enter its judgment."
In an order clarifying the original opinion and denying rehearing, this Court set out the procedures for any future proceedings relating to the validity of the plan. Jurisdiction was retained in the Court over the subject matter because the real-life impact of the plan on individual voting power could not be demonstrated until after an election or series of elections.
In original proceedings, Alberto R. Cardenas and Frank Colunga have petitioned for supplementary relief, declaratory relief and for the appointment of a commissioner to take testimony and report to the Court the findings thereof. They allege, inter alia, that the territory included in Miami's House Districts 109 through 114 is identical and that the inclusion of the predominantly Hispanic precincts into this multi-member district invidiously discriminates against the petitioners.
The allegations of the petition include population statistics, voter registration information, a current breakdown of Hispanic and non-Hispanic residents and voters, and projections of future population patterns. Voting activities and election results from 1976 are presented in support of the discrimination charge, and included is a general allegation that the voting strength of voters of Hispanic origin has been negated and that the result is legislative indifference to the interests of the Hispanic minority.
We note that petitioners do not contend that multi-member House District 109-114, from its inception, discriminated against petitioners by operating to minimize or cancel out their voting strength. As conceded at the bar of the Court, the alleged discrimination has occurred through change in the community by the influx of large numbers of persons of Hispanic origin. Furthermore, there is no allegation made by petitioners that the Senate Joint Resolution encompassed a deliberate attempt to discriminate racially against those of Hispanic origin in Miami's House District 109-114.
In In re Apportionment Law, supra, we held that multi-member districts are not, per se, invalid but, rather, are permissible and may co-exist with single-member districts under the same plan.
We therein concluded:
"It might well be that, designedly or otherwise, a multi-member constituency scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population. When this is demonstrated, we will consider whether the apportionment plan still passes constitutional muster.
"In other words, the apportionment plan as framed may be constitutional on its face, but upon its application in a particular case the joint resolution may violate organic law. This is in accord with our holdings that a statute may be valid as applied to one state of facts, though invalid as applied to another state of facts. See 4 F.L.P., Constitutional Law, § 10, p. 253, and authorities cited."
We did not intend to retain jurisdiction of Senate Joint Resolution 1305 so that this Court could continuously monitor changing ethnic, racial or population patterns and require adjustments to reflect those changes. Such a day-to-day examination would allow us, on one occasion, to find that a particular multi-member district passed constitutional muster and, at some later date, to strike it down because of an influx of a particular racial group into the area. This would be an impossible task and was not our expressed intention.
The purpose for retention of jurisdiction was to determine the validity of a multi-member district at its inception after its real-life impact had been tested in at least one election.
The constitutional provision authorizing declaratory judgment review of the legislative apportionment plan was designed to test the sufficiency of what the Legislature had done and was not designed to provide a method for continuous updating of the apportionment plan adopted by the Legislature by Senate Joint Resolution 1305, based on changing circumstances as opposed to consideration of challenges to the original plan.
With emphasis, we note that Article III, Section 16(a), mandates the Legislature to reapportion in the second year following each decennial census.
The petition before us prays for relief because of events that have transpired since 1972. It does not state grounds for invalidating the apportionment decision of the Legislature as of its effective date. It does not, therefore, state a cause for relief under our described retained jurisdiction, and the petition cannot be considered here in the first instance. The relief desired by petitioners must be sought through separate proceedings, to wit, a declaratory judgment action before the Circuit Court.
Accordingly, for the foregoing reasons, this cause is transferred to the Circuit Court, in and for Leon County, for consideration of the matter as an original proceeding for declaratory judgment before that court.
Petitioner having joined the Secretary of State as a party to this action, venue properly lies in Leon County. This does not mean to say that the Secretary of State is a proper party or that there is a cause of action stated in this complaint. These are matters which must be determined by the Circuit Court.
It is so ordered.
OVERTON, C.J., and BOYD, ENGLAND and SUNDBERG, JJ., concur.
HATCHETT, J., dissents with an opinion.
ADKINS, J., dissents and concurs with HATCHETT, J.
The majority of the Court refuses to entertain the grievances of these petitioners regarding discrimination in representation in multi-member House District 109-114 because:
(1) The district "from its inception, [did not] discriminate[d] against petitioners by operating to minimize or cancel out their voting strength;"
(2) "[T]here is no allegation . . . that the Senate Joint Resolution encompassed a deliberate attempt to discriminate racially against those of Hispanic origin;"
(3) "We did not intend to retain jurisdiction . . . [to] continuously monitor changing ethnic, racial or population patterns and require adjustments to reflect those changes;" rather the purpose was "to determine the validity . . . at its inception after its real-life impact had been tested in at least one election."
The legislature last apportioned the state in 1972. We may admit for these purposes that in 1972 the plan was not drawn to deliberately discriminate and did not at that time operate to cancel out petitioners' voting strength. But this is of little importance. Today — that's the question) are these voters being represented in accordance with the Constitutions of the State of Florida and the United States of America?
These petitioners ask only for appointment of a commissioner to take testimony and other evidence in order to determine whether the voting strength of an identifiable element of the voting population in House District 109-114 has been diluted as a result of multi-member districting. We should grant this petition because Art. III, § 16(c), Fla. Const., specifically provides for judicial review of legislative apportionment by this Court, and because we expressly retained jurisdiction for just this purpose — to consider the real-life impact of the 1972 apportionment plan. In re Apportionment Law Appearing as Senate Joint Resolution Number 1305, 1972 Regular Session, 263 So.2d 797 (Fla. 1972).
Shortly after holding that the apportionment plan of 1972 was constitutional on its face this Court decided In re Apportionment Law, 279 So.2d 14 (Fla. 1973) a suit alleging that the apportionment law was unconstitutional, in its practical effect, on the theory that it deprived citizens of Lee County of meaningful senatorial representation. In that original action in this Court, we addressed the issue of jurisdiction and, at page 15, stated:
"In upholding the apportionment law, we said that the scheme, in a particular case, might operate to undermine the voting strength of a racial or political group. We added, `when this is demonstrated we will consider whether the apportionment plan still passes constitutional muster.' In re Apportionment Law, Senate Joint Resolution Number 1305, 263 So.2d 797, p. 808." (emphasis added)
Later in another original action entitled In re Apportionment, 281 So.2d 484 (Fla. 1973) the court again spoke of its jurisdiction in these terms:
"We have already determined that the apportionment law is valid on its face ( In re Apportionment Law, Senate Joint Resolution Number 1305, 263 So.2d 797 (Fla. 1972), and have retained jurisdiction to hear particular complaints about the application of the apportionment plan pursuant to Fla. Const., art. 3, (16)(c) F.S.A., and Fla. Stat. 86.061, F.S.A. We have sole jurisdiction to hear the present complaint." (at p. 484) (emphasis added)
The majority today abrogates that jurisdiction and transfers the cause to the circuit court. No authority is cited for such a transfer. While transfer to the circuit courts may be a convenient way to handle apportionment cases all the authority of this Court indicates original, exclusive jurisdiction here.
Meaningful representation is the foundation of a democratic society. If an apportionment scheme operates to minimize or eliminate meaningful representation for some segment of the voting population, at its inception or in application, the plan is unconstitutional. The majority today rules that the discrimination must be present from the very inception of the legislative plan. At inception the plan can only be attacked facially. On the other hand, the majority admits that at least one election should be held to test its constitutionality in its real-life impact. If this be true, and if the plan may be held unconstitutional, as applied, at the first election following its adoption, why not at the second or third elections. Are constitutional rights to be protected only each ten years? Or, eight years? Dicennial review is wholly inadequate to protect such a basic right as equal representation.
ADKINS, J., concurs.