Michigan Advisory Opinions May 27, 1983: AGO 6153 (May 27, 1983)

AGO 6153.

You have requested my opinion whether, in light of Const 1963, art 6, Sec. 8, the Legislature must redistrict the Court of Appeals since the 1980 census shows that the districts from which the judges are elected are no longer, based upon county lines, as nearly as possible of equal population.

Const 1963, art 6, Sec. 8, provides:

'The court of appeals shall consist initially of nine judges who shall be nominated and elected at non-partisan elections from districts drawn on county lines and as nearly as possible of equal population, as provided by law. . . . The number of judges comprising the court of appeals may be increased, and the districts from which they are elected may be changed by law.'

The last sentence of Const 1963, art 6, Sec. 8, quoted above, recognizes that as the state population shifts, there may be a need to change, observing county lines, district boundaries in order to maintain the required population distribution.

In considering the meaning of the first sentence of Const 1963, art 6, Sec. 8, the circumstances surrounding its adoption and the purpose sought to be accomplished may be considered. Traverse City School Dist v Attorney General, 384 Mich 390, 405-406; 185 NW2d 9 (1971); Council No. 11, AFSCME v Civil Service Commission, 408 Mich 385; 292 NW2d 442 (1980). To ascertain the attendant circumstances and purposes, resort may be had to the Address to the People and to the convention debates. Regents of the University of Michigan v Michigan, 395 Mich 52; 235 NW2d 1 (1975).

The Address the the People notes:

'Flexibility is further provided by granting to the legislature authority to increase the number of judges of the court and alter districts from which they are elected.' 2 Official Record, Constitutional Convention 1961, p 3386.

The delegates to the Constitutional Convention of 1961, in drafting Const 1963, art 6 Sec. 8, saw a necessity to make provisions requiring the election of an equal number of judges from districts as nearly as possible of equal population. Without provisions concerning the districts, there would be no standards by which to elect the judges on a representative basis in the event of population changes. Delegate Garvin, on third reading, proposed an amendment to article 6, section 8, to require the election of Court of Appeals judges from districts as nearly as possible of equal population. In connection with his amendment, he stated:

'The way it is now it could be drawn, well, any way that you wanted to. It could be gerrymandered or anything else. But we think that it should be in the construction as provided. . . . It would be up to the legislature to set up these districts, as long as they were drawn on county lines as near as possible of equal population.' 2 Official Record, Constitutional Convention 1961, p 3129.

Delegate Ford, a co-sponsor of the amendment, noted the importance of imposing standards on the Legislature so that when the state required additional judges, these additions would be provided by the Legislature with a view to equalizing and distributing the additional judges 'so that approximately the same number of people, insofar as that is possible, will be selecting the judges' to the Court of Appeals. The amendment was adopted. 2 Official Record, Constitutional Convention 1961, p 3130.

The comments of the delegates concerning Const 1963, art 6, Sec. 8 manifest the express intent and necessity for the districts to be drawn on county lines as nearly as possible of equal population. Further, by providing that these districts may be changed by law, it is abundantly clear that the purpose of Const 1963, art 6, Sec. 8 is to provide a flexible system of electing judges to the Court of Appeals so that there may be equal distribution of judges throughout the state based on proportional representation in light of population changes.

In Const 1963, art 6, Sec. 8, the people have provided that the judges of the Court of Appeals shall be nominated and elected from districts drawn on county lines as nearly as possible of equal population as provided by law. In re Districting for Court of Appeals, 372 Mich 227; 125 NW2d 719 (1964). This provision mandates the Legislature to redistrict the Court of Appeals on county lines when it becomes apparent, based upon appropriate population statistics, that the districts are no longer as nearly as possible of equal population. See, Ladies of the Maccabees v Commissioner of Insurance, 235 Mich 459; 209 NW 581 (1926). The duty is not discretionary, but, rather, it is a constitutional requirement.

By federal statute, 90 Stat 243 (1976); 13 USC 141, it is required that in the year 1980, and every 10 years thereafter, there be taken a decennial census of population as of the first day of April of each year. Further, in the year 1985 and every 10 years thereafter, there shall be conducted a mid-decade census of population. 13 USCA Sec. 141. These figures, commencing in 1985, will become available every five years and will assure more current statistics by which to determine any population shift which may, because of the deviation from the 'as nearly as possible' standard in arriving at districts of equal population, require the Legislature to redistrict the Court of Appeals. The constitutional mandate contained within Const 1963, art 6, Sec. 8 requires the Legislature to redistrict the Court of Appeals whenever it becomes obvious that the districts are not as nearly as possible of equal population. The census figures, as required by 13 USCA Sec. 141, are to be compiled every five years and will furnish the Legislature with the information necessary to perform its constitutional duty.

The districts for the election of judges were established by 1961 PA 236, Sec. 302, as added by 1964 PA 281; MCLA 600.302; MSA 27A.302. (fn1) The 1970 census figures for Michigan demonstrate that the difference in population between the most heavily populated district (District 2 with 2,972,235 people) and the district with the lowest population (District 3 with 2,943,027 people) was 29,208 people. Compared to this are the 1980 census figures which contain a much greater variation in population distribution among the districts. The difference in population between the highest, District 3 with 3,294,426 people, and the lowest, District 1 with 2,702,938 people, is 591,498 people. This comparison indicates that the districts no longer comply with Const 1963, art 6, Sec. 8.

Under the 1980 census, the three districts should, ideally, contain 3,087,359 people. At present, District 1 has 384,431 or 12 1/2% fewer people than the ideal number. District 2 contains 177,365, or approximately 6%, more people than the ideal number. District 3 contains 207,067, or approximately 7%, more people than the ideal number. Conformity with the constitutional mandate that the districts be drawn as nearly as possible of equal population is not met when such a significant deviation exists.

The words 'as nearly as possible' are equivalent to 'as nearly as practicable.' Finch v Riverside & A R Co, 87 Cal 597, 599-600; 25 P 765, 766 (1891). In defining the term 'as nearly as practicable' standard and rejecting an argument that there is a percentage population variance small enough to be considered de minimis, the United States Supreme Court, in Kirkpatrick v Preisler, 394 US 526, 530-531; 89 S Ct 1225, 1229; 22 L Ed 2d 519, 524-525 (1969), stated:

'The 'as nearly as practicable' standard requires that the State make a good-faith effort to achieve precise mathematical equality. . . .

'We can see no nonarbitary way to pick a cutoff point at which population variances suddenly become de minimus. Moreover, to consider a certain range of variances de minimus would encourage legislators to strive for that range rather than for equality as nearly as practicable.' (Emphasis of the Court.)

The provision contained within Const 1963, art 6, Sec. 8 requiring the districts to be drawn on county lines may not lend itself to achieving districts which have population distributions of ideally precise proportions. However, the command that the districts be drawn as nearly as possible of equal population and the provision permitting the districts to be changed by law indicate that the people, in adopting Const 1963, art 6, Sec. 8, intended that the Legislature make a good-faith effort to achieve mathematical equality, while observing the county line standard, with respect to the districts from which Court of Appeals judges are to be elected. The Legislature, therefore, must, in keeping with Const 1963, art 6, Sec. 8, redistrict the Court of Appeals by drawing the districts on county lines and as nearly as possible of equal population.

It should be observed that in the interim, while the new districts are being established, the court will continue to perform its judicial duties. There is no authority for the proposition that it should cease functioning, abandoning its vast inventory of public work 'only to drift rudderless at sea' while the Legislature fulfills its duty. Kentucky State Bar Association v Taylor, 482 SW2d 574, 576 (Ky 1972).

The intent of the delegates to the Constitutional Convention of 1961 in drafting Const 1963, art 6, Sec. 8 is clear. They imposed standards upon the Legislature in connection with determining the composition of the districts from which Court of Appeals judges are to be elected. The people in adopting Const 1963, art 6, Sec. 8, have imposed a duty upon the Legislature requiring it to establish districts from which Court of Appeals judges are to be elected on county lines and as nearly as possible of equal population as provided by law.

It is my opinion, therefore, that when the federal census figures clearly reflect, as they presently do, that the established Court of Appeals districts are no longer as nearly as possible of equal population, observing county lines, the Legislature must redraw the districts in accordance with the standards provided in Const 1963, art 6, Sec. 8.

Frank J. Kelley

Attorney General

1. This act was further amended by 1972 PA 157 which changed counties within the districts, and by 1974 PA 144 which increased the number of judges to be elected.