Oregon Advisory Opinions May 17, 1971: OAG 71-36 (May 17, 1971)
Collection: Oregon Attorney General Opinions
Docket: OAG 71-36
Date: May 17, 1971
Advisory Opinion Text
OAG 71-36.
This question arises because of the provision of the Oregon Constitution, that:
We are asked whether this provision would permit the legislature to reapportion the state a second time after it has adopted a valid apportionment, or whether if the legislature fails to adopt a valid apportionment and the Secretary of State accordingly submits an apportionment plan pursuant to subsection (2) or (3) of Article 1. Section 6, the legislature may subsequently modify the Secretary of State's plan."The number of senators and representatives shall, at the session next following an enumeration of the inhabitants by the United States government , be fixed by law and apportioned among the several counties according to the population in each . . ." (emphasis supplied) Or. Const. Art IV, § 6(1).
This opinion first assumes that the reapportionment plan which the legislature would thus seek to replace or modify, will meet every requirement of the United States Constitution, since if it were to be in fact invalid in some respect there would not only be a power but a duty to correct it. It may be taken for granted that the plan would comply with the Oregon Constitution to the extent possible under the United States Constitution, since under the virtually automatic review provisions of Article IV, Section 6(2) and (3), it would undoubtedly bear the stamp of approval of the Oregon Supreme Court.
It is our opinion that a plan prepared by the Secretary of State would be subject to the same considerations as a plan adopted by the legislature. Reapportionment is a legislative function, but although the Oregon Constitution substitutes the Secretary of State for the Legislative Assembly if the Legislative Assembly fails to adopt a valid apportionment plan within a specified time limit, the acts which the Secretary of State is then required to perform are not less legislative than if they were performed by the legislature. The plan which he prepares becomes the law of the state, and there is nothing to distinguish it from a plan adopted by the legislature.
The general rule appears to be that once the legislature has complied with a constitutional duty to reapportion the legis-
lative districts of a state after a census, it has exhausted its power, and cannot again reapportion the state in a subsequent session prior to the next time prescribed by the constitution. State ex rel. Thompson v. Zimmerman , 264 Wis. 644, 60 N.W.2d 416 (1953); Opinion of the Justices , 254 Ala. 185, 47 S.2d 714 (1950); Reynolds v. City of New York , 202 N.Y. 430, 96 N.E. 87 (1911); Denney v. State , 144 Ind. 503, 42 N.E. 929 (1896). In each case the governing constitutional provision was quite similar to that quoted above.
In the Alabama and New York cases, it was held that a continuing duty rested on subsequent sessions of the legislature if no valid reapportionment was accomplished at the session designated in the constitution, but the courts went on to say:
"True, only one apportionment is contemplated during the ten year period . . ." (Emphasis supplied) Opinion of the Justices , supra at 186, 47 So.2d at 716.
"[T]he power vested in [the Legislature] was a continuing one until exercised and discharged . . . " (emphasis supplied) Reynolds v. City of New York , supra at 444, 96 N.E. at 90.
Article IV, Section 6 of the Oregon Constitution, as originally adopted, was identical to Section 6(1) as it now exists, except that it also referred to an enumeration by "this State", and to "white population" instead of "population." It was (and still is) virtually identical to the provision of the Indiana Constitution from which it was taken, which also provided that:
"The number of senators and representatives shall,
at the next session following an [enumeration of population] be fixed by law, and apportioned among the several counties . . ."
We thus give special significance to the Indiana case cited, in which the court said:
"We think the legitimate and necessary conclusion to be drawn from these two sections is that an enumeration of the voters shall be taken every six years, and that, upon such enumeration as a basis, the apportionment of members of the legislature shall be made at the next ensuing session of the legislature, and only then . . . .
"The fixing, too, by the constitution, of a time and mode for the doing of an act, is, by necessary implication, the forbidding of any other time and mode for the doing of such act." (emphasis supplied) Denney v. State , supra at 512, 42 N.E. at 932.
These cases seem to represent the weight of authority with respect to constitutional provisions similar to Oregon's Article IV, Section 6. However, the Oregon court reached a contrary conclusion in a case decided after Denney v. State , supra , the 1896 Indiana case discussed above.
In Baker County v. Benson , 40 Or. 207, 66 P. 815 (1901), the Oregon Supreme Court held that a legislative act annexing part of Union County to Baker County was effective to change the territorial representation of the senatorial district including Baker County. The Court said:
"It is argued that the legislative assembly, having apportioned the number of senators among the several counties of the state, exhausted the measure of power delegated, and was without authority, until another federal or state enumeration of the inhabitants was taken, to make a reapportionment." 40 Or. at 223, 66 P. at 821.
The court acknowledged that cases from other jurisdictions supported the principle that reapportionment could not be effected more frequently than is constitutionally required, but pointed out that usually in such cases the state constitution in question specifically prohibited more frequent reapportionment.
It is not entirely clear whether the court held that this was a second reapportionment, but permissible, or whether this minor change in district boundaries incidental to another valid legislative act did not constitute a reapportionment at all. See State ex rel. Smith v. Zimmerman , 266 Wis. 307, 63 N.W.2d 52 (1954).
The Baker County case thus at least indicates that Oregon will not necessarily follow the line of cases holding that the first apportionment accomplished pursuant to constitutional mandate, after a census, exhausts the power to reapportion. In our opinion, other events also cast doubt upon the validity of the majority rule.
In the decade since Baker v. Carr , 369 U.S. 186 (1962), case after case has been decided, holding not that the legislature has or lacks power to reapportion, but that it has a duty to do so. It is failure to reapportion, not too frequent reapportionment, which is the evil. We note further that until Baker v. Carr , supra . it was generally held that legislative apportionment was a purely legislative and political function, not subject to judicial review; e.g., Sweeney v. Notte , 95 R.I. 168, 183 A.2d 296 (1962); Butcher v. Rice , 397 Pa. 158, 153 A.2d 869 (1959); State ex rel. Broughton v. Zimmerman , 261 Wis. 398, 52 N.W.2d 903 (1952); and many others. Thus a state legislature had unreviewable power to draw district
lines to suit the party with majority control. The cases restricting the frequency of permissible reapportionment undoubtedly did so at least in part to insure continuity and stability in the organization of the legislative system, to avoid a politically motivated overhaul of the legislative apportionment after each change in the political complexion of the legislature. Since the requirements of the United States Constitution now held applicable to every reapportionment allow very little freedom for politically-motivated boundary changes, this reason for the restrictive rule has substantially less weight. As stated in Reynolds v. Simms , 377 U.S. 533 (1964):
". . . undoubtedly reapportioning no more frequently than every 10 years leads to some inbalance in the population of districts toward the end of the decennial period and also to the development of resistance to change on the part of some incumbent legislators. In substance, we do not regard the Equal Protection Clause as requiring daily, monthly, annual or biennial reapportionment, so long as a state has a reasonably conceived plan for periodic readjustment of legislative representation. While we do not intend to indicate that decennial reapportionment is a constitutional requisite, compliance with such an approach would clearly meet the minimal requirements for maintaining a reasonably current scheme of legislative representation. And we do not mean to intimate that more frequent reapportionment would not be constitutionally permissible or practicably desirable ." (emphasis supplied) 377 U.S. at 583-584.
For the foregoing reasons, we conclude that the Oregon court would not feel compelled by the weight or reasoning of pre-1962 cases from other jurisdictions, however similar the wording of their equivalent constitutional provisions may be, but would instead address itself to the question of whether a provision requiring a reapportionment in a particular year, prohibits it at any other time.
Reapportionment is a legislative function, and as such is reserved to the legislature (or the people through the initiative) by Article III, Section 1 and Article IV, Section 1(1) of the Oregon Constitution.
Thus in the exercise of this inherent power, the legislature may enact any measure it pleases, including a reapportionment measure, unless its action violates some limitation either expressly or impliedly stated in the constitution."The legislative power which has been vested in our state legislature by the people is plenary and complete except as that power is limited by the state constitution itself, or by the federal constitution. As stated . . . in State ex rel. Chapman v. Appling , 220 Or. 41, 47, 348 P.2d 759, 762 (1960), 'a state constitution does not confer power on the legislature, but is a limitation on power, and therefore it is competent for the legislature to enact any law not expressly or impliedly forbidden by the state constitution or prohibited by the Constitution of the United States * * *.' " State ex rel. Overhulse v. Appling , 226 Or. 575, 585, 361 P.2d 86 (1961).
Article IV, Section 6(1) does not expressly prohibit enactment of a reapportionment measure in a year other than that immediately following the federal decennial census, and in our opinion neither does it impliedly prohibit it. Numerous provisions of the constitution provide that the legislature "shall" perform some act; but so far as we are aware it has not been contended that its power to act further is exhausted once it performs the original mandatory act. For example, the Legislative Assembly "shall enact laws to support the privilege of free suffrage, prescribing the manner of regulating, and conducting elections. . ." (Or. Const. Art II, § 8); but its
initial exercise of this power has of course not exhausted its power to enact additional laws regulating elections.
It may be asserted that other provisions of Article IV, Section 6, adopted by initiative amendment in 1952, supply the implied prohibition against further reapportionment of the state after the initial constitutional reapportionment in the first year after the federal decennial census.
Article IV, Section 6(2) vests original jurisdiction in the Supreme Court to review a petition attacking the legislative apportionment, if filed prior to September 1 "of the year in which the Legislative Assembly enacts a reapportionment measure," and provides that if the petition is without merit, it shall be dismissed "prior to October 1 of the same year." If the reapportionment is found invalid, the Secretary of State is directed to submit a reapportionment plan by October 1 "of the same year," which if valid shall be filed with the Governor "by November 1 of the same year," and if invalid shall be corrected in the particulars required by the court and filed with the Governor "by November 1 of the same year."
Subsection (3) provides that if the legislature fails to adopt a reapportionment measure "by July 1 of the year of the session . . . next following " (emphasis supplied) the census, the Secretary of State shall prepare an apportionment plan, with similar provisions for review and filing by set dates "of the same year."
It is quite clear that the drafters of these amendments
to Article IV, Section 6 contemplated that reapportionment would occur only in the year following the federal decennial census; but although the provisions require reapportionment in that year, they do not prohibit it in other years.(fn1) The above discussion thus again becomes applicable.
The provisions for review set forth in Section 6(2) would remain applicable to reapportionments enacted by subsequent legislatures. The filing deadline of September 1 is reasonable in view of the fact that no regular biennial session has ever failed to complete its business and adjourn long before that date. If an apportionment should be enacted later than September 1, it would be subject to review in the circuit court or in a federal court, even if the Supreme Court should hold that it lacks original jurisdiction.
In the circumstances it is our opinion that the court will hold that Article IV, Section 6 does not deprive the legislature of authority to enact a reapportionment measure after a valid reapportionment becomes effective.
This conclusion is not free from doubt, however, in view of the provisions of subsections (2) to (4) of Article IV, Section 6. We also point out that if our conclusion is correct, the subsequent reapportionment, replacing a prior valid reapportionment, would be
examined by the courts with great care to determine that even the most minor deviations from exact population equality are justified, and not based on improper motives. Finally, it is implied by Reynolds v. Sims , supra , that a subsequent reapportionment must probably reflect changes in population, if any, occurring subsequent to the original reapportionment based upon the 1970 census.
Footnotes:
1 By specifying an apportionment to be applicable until the next (1960) census, Article IV, Section 6(4) did prohibit any further reapportionment by intervening sessions of the legislature.