Opinion
SC 163978 COA 359554
03-25-2022
In re APPORTIONMENT - MACOMB COUNTY - 2021 v. MACOMB COUNTY APPORTIONMENT COMMISSION, Respondent-Appellee. BEVERLY BISHOP and ELIZABETH PUGH, Petitioners-Appellants,
Brian K. Zahra David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Elizabeth M. Welch, Justices
ORDER
Bridget M. McCormack, Chief Justice
On order of the Court, the application for leave to appeal the January 20, 2022 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Cavanagh, J. (concurring).
For similar reasons as those set forth in my concurring statement in In re Apportionment of Kent Co-2021 , Mich. (2022) (Docket No. 163952), I also concur in the Court's denial order in this case. I acknowledge that there is a lack of guidance in regard to the interpretation of the instruction in MCL 45.505(2) that charter county commission districts "shall be drawn without regard to partisan political advantage." However, the bare allegations of political gerrymandering in this case are unavailing in light of the fact, as the Court of Appeals recognized, that the adopted plan fares better regarding the balance of statutory requirements contained in MCL 45.505(2). Viewed in its entirety, the adopted plan appears to represent a "reasonable choice in the reasoned exercise of judgment . . . ." Apportionment of Wayne Co Bd of Comm'rs- 1982, 413 Mich. 224, 264 (1982). Therefore, I join the Court's order denying leave to appeal.
McCormack, C.J., joins the statement of Cavanagh, J.
Welch, J. (dissenting). 1
I dissent from the Court's decision to deny leave to appeal in this case for many of the same reasons raised in my dissenting statement in In re Apportionment-Kent Co- 2021, Mich(2022) (Docket No. 163952) (Kent Co-2021). While this case concerns the reapportionment of county commissioner seats for a charter county, as opposed to the reapportionment of the general-law county at issue in Kent Co-2021, there is a similar absence of guidance from this Court about the meaning of the governing anti-gerrymandering statute. See MCL 45.505(2) (stating that "districts . . . shall be drawn without regard to partisan political advantage"). Even though MCL 45.505 was enacted over 50 years ago, neither this Court nor the Court of Appeals has ever interpreted its anti-gerrymandering provision. I believe the Court of Appeals erroneously dismissed the petitioners' challenge without a hearing on the merits by relying on inapplicable and erroneous legal precedent.
The petitioners argue that the adopted county apportionment plan creates an unlawful partisan advantage through packing, cracking, and changing the core constituency of certain county commissioner districts in a manner that will alter the existing political power within the county. They argue that this violates MCL 45.505(2) and MCL 45.514(1)(b), which are statutes governing the apportionment of county commissioner districts for charter counties. The Court of Appeals dismissed these arguments because:
Petitioners' arguments that the plan was drawn to effect partisan political advantage contrary to MCL 45.505(2) and 45.514(1)(b) is not supported by the record. Petitioners did not meet their burden of presenting actual evidence that partisanship was a prominent consideration in the adoption of the plan, or that the adopted plan unfairly alters the existing allocation of political power vis-à-vis voting strength. In re Apportionment of Clinton Co - 1991 (After Remand), 193 Mich.App. 231; 483 N.W.2d 448 (1992), lv den 439 [Mich 981] (1992); In re Apportionment of Kent Co Bd of Commissioners, 40 Mich.App. 508, 513-514; 198 N.W.2d 915 (1972), lv den 388 Mich. 757 (1972). [In re Apportionment-Macomb Co-2021, unpublished order of the Court of Appeals, entered January 20, 2022 (Docket No. 359554).]
The obvious problem with the Court of Appeals' decision is that neither of the cases it cited dealt with charter counties or MCL 45.505(2). There is no binding precedent from this Court or the Court of Appeals providing guidance as to the meaning or application of the anti-gerrymandering provision in MCL 45.505(2). Moreover, as I noted in my dissenting statement in Kent Co-2021, the standards adopted by the Court of Appeals in In re Apportionment of Clinton Co 1991 (After Remand) and In re Apportionment of Kent Co Bd of Comm'rs are not grounded in the text of MCL 46.404(h), which is the anti-gerrymandering provision for general-law counties. 2
This Court has, once again, missed the once-in-a-decade opportunity to provide much needed guidance to county apportionment bodies concerning compliance with Michigan's longstanding anti-gerrymandering laws. Perhaps in another decade, the uncertainty surrounding MCL 45.505(2)'s anti-gerrymandering provision will finally be resolved. I respectfully dissent.
Bernstein, J, joins the statement of Welch, J. 3