Wilson v. Eu (1991) 54 Cal.3d 471 , 286 Cal.Rptr. 280; 816 P.2d 1306
PETE WILSON, Individually and as Governor, etc., Petitioner, v. MARCH FONG EU, as Secretary of State, etc., et al., Respondents; ASSEMBLY OF THE STATE OF CALIFORNIA et al., Real Parties in Interest.
(Opinion by The Court.)
COUNSEL
Gibson, Dunn & Crutcher, Robert E. Cooper, Theodore B. Olson and Daniel M. Kolkey for Petitioner.
No appearance for Respondents.
Browne & Woods, Allan Browne, Benjamin D. Scheibe, Robert B. Broadbelt, Michael J. Olecki, Bion Gregory, Remcho, Johansen & Purcell, Joseph Remcho, Robin B. Johansen and Charles C. Marson for Real Parties in Interest.
OPINION
THE COURT.
In these mandate proceedings, we are called on to resolve the impasse created by the failure of the Legislature to pass legislative and congressional reapportionment bills acceptable to the Governor in time for the forthcoming 1992 Primary and General Elections. (See Cal. Const., art. XXI, § 1.)
On September 23, 1991, Governor Wilson exercised his authority to veto the legislative plans submitted to him. On that same day, an attempted override of the veto failed, and the Legislature adjourned for the remainder of the year. Because we lack assurance that reapportionment plans will be validly enacted in time for the 1992 elections, it is now incumbent on this [54 Cal.3d 473] court to exercise its original jurisdiction and arrange for the drafting and adoption of appropriate reapportionment plans.
[1] As we have repeatedly emphasized in past cases, "reapportionment is primarily a matter for the legislative branch of the government to resolve. [Citations.]" (Legislature v. Reinecke (1972) 6 Cal.3d 595, 598 [99 Cal.Rptr. 481, 492 P.2d 385] [hereafter Reinecke I].) Accordingly, we urge the Legislature and the Governor, in the exercise of their "shared legislative power" (ibid.) to enact reapportionment plans in time for the 1992 elections, and thus to render unnecessary the use of any plans this court may adopt. (See ibid.; see also Legislature v. Reinecke (1972) 7 Cal.3d 92, 93 [101 Cal.Rptr. 552, 496 P.2d 464] [Reinecke II].) [2] But because the impasse may continue indefinitely, because " 'it is our duty to insure the electorate equal protection of the laws' [citation]" (Reinecke I, supra, 6 Cal.3d 595, 598), and because California is entitled to seven additional congressional seats based on the 1990 census, we must proceed forthwith to draft such plans. (See also Legislature v. Reinecke (1973) 10 Cal.3d 396, 399, fn. 1 [110 Cal.Rptr. 718, 516 P.2d 6] [Reinecke IV] [necessity to act to fulfill equal protection guarantees and assure the right to equal participation in the congressional elections].)
In light of the acknowledged necessity of affording all interested parties an opportunity to be heard in such matters, it is appropriate that we appoint three Special Masters to hold public hearings to permit the presentation of evidence and argument with respect to proposed plans of reapportionment. (See Legislature v. Reinecke (1973) 9 Cal.3d 166, 167 [107 Cal.Rptr. 18, 507 P.2d 626] [Reinecke III].) We will expeditiously select and appoint these Masters, and they will be guided by the procedures and criteria developed by an earlier panel of Masters for the reapportionment plans adopted by this court in 1973 (see Reinecke IV, supra, 10 Cal.3d at pp. 402, 410-414), as well as by the provisions of article XXI, section 1, of the state Constitution. In addition, the Masters will consider the application of federal law, including the Voting Rights Act (42 U.S.C. § 1971 et seq.).
Following the hearings, the Masters will file their report and recommendations for possible adoption of reapportionment plans which will provide for 52 single-member congressional districts, 40 single-member Senate districts, 80 single-member Assembly districts, and 4 State Board of Equalization districts. The Masters shall set forth the criteria underlying the plans they recommend for adoption and the reasons for their recommendations.
Subject to this court's approval, the Masters will be authorized to employ counsel, independent experts in the field of reapportionment and computer technology, and other necessary personnel to assist them in their work. They [54 Cal.3d 474] will be further authorized to seek the full cooperation of the Legislature and Governor in producing and using whatever data, computer models and programs, and technical assistance that may be made available to them by the Legislature or Governor and other state personnel who are knowledgeable in the mechanics of drafting reapportionment legislation. (See Reinecke III, supra, 9 Cal.3d at p. 168.)
The Administrative Office of the Courts (AOC) shall assist the Masters in securing the necessary personnel and the physical facilities required for their work. The AOC shall also prepare for prompt submission to the Governor and Legislature a request for a special appropriation to augment the appropriations made for the support of the judicial branch by the Budget Acts of 1991 and 1992 in order to reimburse those appropriations for the expenditures that must be made for the necessary expenses of the Masters and their staff. (See Reinecke III, supra, 9 Cal.3d at p. 168.)
Public hearings shall commence no later than 30 days from the date of the Masters' appointment, and the Masters shall present their recommendations to the court no later than November 29, 1991. We recognize that the Masters are thus given considerably less time to formulate their report and recommendations than the five-month period provided in Reinecke III. The shorter period is necessitated by the close proximity of the June 2, 1992, Primary Election, and the need to transmit to the county clerks information regarding the new districts no later than 104 days prior to that election (Elec. Code, § 6462). We are of the view that the November 29 deadline is realistic in light of considerable advances in computer technology since 1972.
Permission for additional parties to intervene in these proceedings will not be granted, but any present parties may file briefs with the court within 30 days of the filing of the Masters' recommendations. Other interested parties may file briefs as amici curiae within the same period. The matter will be set for oral argument shortly after the period for filing briefs has expired.
We reiterate: If at any time during these proceedings congressional and legislative reapportionment plans are validly enacted, this court will entertain an application to dismiss these proceedings.
Let an alternative writ of mandate issue, to be heard before this court at its courtroom when the proceeding is ordered on calendar. [54 Cal.3d 475]
The alternative writ is to be issued, served and filed on or before October 2, 1991.
The written return is to be served and filed on or before October 16, 1991.
Original proceeding. This proceeding involves reapportionment following the 1990 census.
| Date: | Citation: | Docket Number: | Category: | Status: |
| Wed, 09/25/1991 | 54 Cal.3d 471 | S022835 | Original Proceeding - Civil | complete |
| 1 | Wilson, Pete (Petitioner) Represented by Robert E. Cooper Gibson Dunn & Crutcher 333 South Grand Avenue Los Angeles, CA |
| 2 | City Of Fairfiled (Amicus curiae) Represented by Robert E. Cooper Gibson Dunn & Crutcher 333 South Grand Avenue Los Angeles, CA |
| 3 | 3 Brisbane City Council Members (Amicus curiae) Represented by Robert E. Cooper Gibson Dunn & Crutcher 333 South Grand Avenue Los Angeles, CA |
| 4 | Senate Of The State Of California (Real Party in Interest) Represented by Allan Browne Browne & Woods 450 N. Roxbury Drive 7th Floor Beverly Hills, CA |
| 5 | Eu, March Fong (Respondent) Represented by Anthony L. Miller Richard S. Nishite Oliver S. Cox 1230 J Street Sacramento, CA |
| 6 | Assembly Of The State Of California (Real Party in Interest) |
| 7 | Zolin, Frank S. (Respondent) Represented by Dewitt W. Clinton County Clerk, Los Angeles County 648 Hall Of Administratn 500 West Templestreet Los Angeles, CA |
| 8 | Board Of Equalization (Real Party in Interest) 1020 "N" Street Sacramento, CA 95814 Represented by James R. Parrinello Nielsen, Merksamer, Hodgson, Parrinello & Mueller 591 Redwood Highway Suite 4000 Mill Valley, CA |
| 9 | State Of California (Real Party in Interest) |
| 10 | California Democratic Congressional Delegation (Real Party in Interest) Represented by Jonathan Steinberg Irell & Manella 1800 Avenue Of The Stars Suite 900 Los Angeles, CA |
| 11 | Wong, Germaine Q. (Real Party in Interest) City Hall, Room 158 San Francisco, CA 94102 Represented by Louise H. Renne Randy Riddle, Deputy City Attorney Room 206 City Hall San Francisco, CA |
| 12 | Dickinson, Donald W. (Respondent) 317 City Hall San Francisco, CA 94102 Represented by Louise H. Renne Randy Riddle, Deputy City Attorney City Hall, Room 206 San Francisco, CA |
| 13 | Weisssburd, Charles (Respondent) Represented by Dewitt W. Clinton Halvor S.Melow, Principal Deputy 648 Hall Of Administratn 500 West Templestreet Los Angeles, CA |
| 14 | Los Angeles County Registrar Of Voters (Respondent) Represented by Dewitt W. Clinton Halvor S.Melow, Principal Deputy 648 Hall Of Administratn 500 West Templestreet Los Angeles, CA |
| 15 | Mexican American Legal Defense & Education Fund (Amicus curiae) Represented by Manuel A. Romero M. A. L. D. E. F. 182 Second Street 2nd Floor San Francisco, CA |
| 16 | Hannigan, Tom (Amicus curiae) Represented by Lance H. Olson Olson Connelly Hagel Et Al 300 Capitol Mall Suite 350 Sacramento, CA |
| 17 | City Of Fairfield (Amicus curiae) Represented by Elizabeth Ann Strauss City Attorney -Fairfield 1000 Webster Street Fairfield, CA |
| 18 | Lungren, Daniel E. (Amicus curiae) Represented by Manuel M. Medeiros |
| 19 | Coalition Of Asian/Pacific Americans (Amicus curiae) Represented by William R. Tamayo Asian Law Caucus, Inc. 468 Bush Street 3rd Floor San Francisco, CA |
| 20 | Coalition Of Asian Pacific Americans For Fair Reapportionmnt (Amicus curiae) Represented by Angelo N. Ancheta Asian Pacific American Legal Center For Southern Calif 1010 S.Flower St, Ste.302 Los Angeles, CA |
| Disposition | |
| Jan 27 1992 | Opinion: Mandate denied |
| Dockets | |
| Sep 6 1991 | Petition for writ of mandate/prohibition filed By Governor Pete Wilson (Petr) [filed in Sacto] Retained |
| Sep 16 1991 | Informal Response filed by: Real Party--Senate of State of Calif Reqt for Dismissal & Prelim Oppo to Petns for Writ Prob/Man |
| Sep 16 1991 | Received letter from: Remcho, Johansen (on behalf of Assembly) in Opposition to Ptn |
| Sep 23 1991 | Received: Supplement to Petn for Writ (Petr'S) [Recv'd in Sacto] |
| Sep 25 1991 | Received letter from: Remcho, Johansen (on behalf of Assembly) |
| Sep 25 1991 | Let an alternative writ of mandate issue Memo order By Court: Special Masters to be chosen to conduct hearing & plan redistricting by 11-29-91 Alt Writ to be issued, served & filed by 10-2-91; Return due 10-16-91 published at 54 Cal.3d 471 |
| Sep 26 1991 | Order filed: Appting Spec. Masters: Hon Geo A Brown, Ret. CA 5 (Presiding Master); Hon Rafael H. Galceran, Ret. Lasc; Hon Thomas Kongsgaard, Ret. Napa Super Ct. |
| Sep 27 1991 | Alternative writ issued Of mandate |
| Oct 2 1991 | Alternative writ filed with proof of service By Petnr |
| Oct 10 1991 | Written return filed Resp Secty of State's Ans to Writ (filed in Sac) |
| Oct 16 1991 | Filed: RPIs-Minority Leader & Minority Caucus of Assembly Appl for Ord Shortening time to Consider Emergency motion for Clarification of Ord dated 9-25-91 |
| Oct 16 1991 | Filed: RPIs Emergency motion for Clarification & or Amendment of Memo Ord dated 9-25-91 |
| Oct 16 1991 | Written return filed By RPIs |
| Oct 16 1991 | Written return filed By RPI Senate |
| Oct 16 1991 | Written return filed By Germaine Q. Wong, SF Registrar of Voters and Donald Dickinson, County Clerk. |
| Oct 16 1991 | Order filed: The Emergency motion for Clarification And/or Amendment filed on 10-16-91 Is denied. |
| Oct 16 1991 | Written return filed By Counsel for RPI, Assembly of the State of California, in San Francisco. |
| Oct 16 1991 | Written return filed RPIs (Members of Calif Democratic Congressional Delegation) Verified Ans to Petn & Suppl |
| Oct 17 1991 | Written return filed Charles Weissburd, LA County Registrar of Voters [Rule 40-N] |
| Oct 23 1991 | Note: Memorandum Order filed in response to Proposals submitted by Secty of State |
| Oct 28 1991 | Received letter from: Nielsen, Merksamer Law Firm w/copy of Notice of appearance filed w/Spec Masters Advising They have been Retained by State Board of Equalization |
| Oct 31 1991 | Filed: RPIs Members of Calif Democratic Congressional Delegation Notice of Reservation of Federal Constitutional and Statutory claims |
| Nov 29 1991 | Filed: Report and Recommendations of Special Masters on Reapportionment. (Report Plus 3 Appendices.) |
| Dec 11 1991 | Received letter from: Irell & Manella requesting Revision of briefing Schedule |
| Dec 12 1991 | Letter sent to: Aty J. Steinberg in reply to 12-10-91 letter - Ct has denied as Impractical request to Revise the briefing & Hearing Schedule in this Matter. |
| Dec 16 1991 | Received: Comments from Kern County Latino Redistricting Coalition |
| Dec 16 1991 | Objections to the report & recommendation filed Brief Relating to the Special Masters' Proposed Plan on Reapportionment--w/1 Vol Labeled Exhibit E from Resp Eu. (filed in Sac) |
| Dec 16 1991 | Amicus Curiae Brief filed by: on behalf of Assemblymember Tom Hannigan Concerning Assembly Districts 7 and 8 (Vallejo and Fairfield) [Rec'd Sac 12-16-91] |
| Dec 17 1991 | Amicus Curiae Brief filed by: Mexican American Legal Defense & Educational Fund (Objections and requested Modifications to Report) |
| Dec 17 1991 | Objections to the report & recommendation filed Brief of RPI State Board of Equalization (Nielsen, Merksamer Et Al) |
| Dec 18 1991 | Objections to the report & recommendation filed Brief & Appendix from Calif Democratic Congression Al in response to Masters Report |
| Dec 23 1991 | Amicus Curiae Brief filed by: City of Fairfield |
| Dec 23 1991 | Received: Amended Proof of Service from Olson, Connelly Et Al for Amicus brief filed on behalf of Assemblyman Tom Hannigan |
| Dec 24 1991 | Objections to the report & recommendation filed Assembly's response to Special Masters' Report and Recommendations. |
| Dec 24 1991 | Received letter from: Nielsen, Merksamer w/attachments |
| Dec 26 1991 | Filed: Response of James Toledano, Esq. as an Individual |
| Dec 26 1991 | Case Ordered on Calendar: Monday, January 13, 1992 At 9 A.M. - S.F. |
| Dec 26 1991 | Amicus Curiae Brief filed by: Attorney General |
| Dec 26 1991 | Amicus Curiae Brief filed by: Brief of Coalition of Asian Pacific Americans for Fair Reapportionment (Capafr) |
| Dec 27 1991 | Filed: Petnr's brief in support of Special Masters'. |
| Dec 27 1991 | Amicus Curiae Brief filed by: Asian American Citizens of California, Etc. |
| Dec 27 1991 | Request for Judicial Notice filed RPI Senate of State of Calif request for Judicial Notice (Appendix to brief of RPI Under Seperate Cover) |
| Dec 30 1991 | Received document entitled: RPI Senate of State of Calif (Notice of Reserva- Tion of Federal Constitutional & Statutory Claims) |
| Dec 30 1991 | Amicus Curiae Brief filed by: Three Members of Brisbane City Council |
| Dec 30 1991 | Objections to the report & recommendation filed Brief of RPI Senate of the State of California (Rec'd in LA on 12/26) |
| Dec 30 1991 | Request for Judicial Notice filed RPI Senate of the State of California (Rec'd in LA 12/26) |
| Dec 30 1991 | Received: RPI's (Senate'S) Notice of Reervation of Federal Constitutional & Statutory claims (Rec's in L.A. 12/26) |
| Dec 30 1991 | Filed: Brief of Geraldine Johnson (Pro Per) |
| Jan 10 1992 | Supplemental Brief filed by: RPI Senate's Suppl brief Regarding Redistricting |
| Jan 13 1992 | Request for Judicial Notice filed Request for Judicial Notice AC Mexican American Legal Defense and Ed. Fund |
| Jan 13 1992 | Received: Exhibit to reply Memorandum in motion for Preliminary Injunction [filed in US Dist Court] AC Mexican American Legal Defense and Ed. Fund |
| Jan 13 1992 | Cause Called and Argued (not yet submitted) |
| Jan 13 1992 | Submitted by order |
| Jan 17 1992 | Filed document entitled: RPI Cal Demo Delegation's reply brief from Federal Court Action. with Declarations of J. Morgan Kousser and David R. Ely. |
| Jan 17 1992 | Filed document entitled: RPI Cal Demo Delegation's "Legislature Congressional Plan C (Revised)" |
| Jan 21 1992 | Received document entitled: Petn to Enlarge mandate of Special Masters Prof Michael J. Halliwell |
| Jan 21 1992 | Received: Proofs of Service *Calif Demo Congressional Delegation reply brief *Legislature's Congressional Plan C (Revised) |
| Jan 23 1992 | Received document entitled: Petnr's response to Submisions filed by Calif Democratic Congressional Delagation |
| Jan 24 1992 | Filed: RPIs Senate in response to letter brief of Assemblyman Tom Hayden and Barbara Grover |
| Jan 27 1992 | Opinion filed: Writ discharged; mandate denied (Upheld Masters Report w/Exception of Mofification of City of Torrance Boundaries - Pp 23-24) Majority Opinion by Lucas, C.J. -- joined by Panelli, Kennard, Arabian, Baxter, George, JJ. Dissenting Opinion by Mosk, J ***opinion Is final Forthwith*** |
| Feb 10 1992 | Received letter from: U.S. Dept. of Justice, Civil Rights Division |
| Feb 27 1992 | Filed: Request of Gibson, Dunn & Crutcher that Court issue Order Retaining Jurisdiction to Modify Judgment |
| Feb 27 1992 | Order filed: Request that this Court Retain Jurisdiction to Modify Judgment denied. |
| Apr 25 2000 | Note: Per Cleo, R. Barrow Instructed Her to Order the Record from State Records Center and to have it Shipped to His Attenttion, Pursuant to the request Of Paul Rolf Jensen, Esq. (626)369-8722. |
| Briefs | |
| Oct 10 1991 | Written return filed Resp Secty of State's Ans to Writ (filed in Sac) |
| Oct 16 1991 | Written return filed By RPIs |
| Oct 16 1991 | Written return filed By RPI Senate |
| Oct 16 1991 | Written return filed By Germaine Q. Wong, SF Registrar of Voters and Donald Dickinson, County Clerk. |
| Oct 16 1991 | Written return filed By Counsel for RPI, Assembly of the State of California, in San Francisco. |
| Oct 16 1991 | Written return filed RPIs (Members of Calif Democratic Congressional Delegation) Verified Ans to Petn & Suppl |
| Oct 17 1991 | Written return filed Charles Weissburd, LA County Registrar of Voters [Rule 40-N] |
| Dec 16 1991 | Amicus Curiae Brief filed by: on behalf of Assemblymember Tom Hannigan Concerning Assembly Districts 7 and 8 (Vallejo and Fairfield) [Rec'd Sac 12-16-91] |
| Dec 17 1991 | Amicus Curiae Brief filed by: Mexican American Legal Defense & Educational Fund (Objections and requested Modifications to Report) |
| Dec 23 1991 | Amicus Curiae Brief filed by: City of Fairfield |
| Dec 26 1991 | Amicus Curiae Brief filed by: Attorney General |
| Dec 26 1991 | Amicus Curiae Brief filed by: Brief of Coalition of Asian Pacific Americans for Fair Reapportionment (Capafr) |
| Dec 27 1991 | Amicus Curiae Brief filed by: Asian American Citizens of California, Etc. |
| Dec 30 1991 | Amicus Curiae Brief filed by: Three Members of Brisbane City Council |