Full Opinion

IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS IN RE: PETITION OF MARIA FRICA TUDELA PANGELINAN AND CHRISTINA-MARIE E. SABLAN FOR REAPPORTIONMENT AND REDISTRICTING SUPREME COURT NO. CV-07-0015-OA Cite as: 2007 MP 14 Argued and Submitted July 3, 2007 Decided August 7, 2007 Maria Frica Tudela Pangelinan and Christina-Marie E. Sablan, Saipan, Commonwealth of the Northern Mariana Islands, Petitioners. Ian Catlett, Legal Counsel, Commonwealth House of Representatives, for Invited Amicus Curiae Commonwealth House of Representatives. Stephen Woodruff, Saipan, Commonwealth of the Northern Mariana Islands, for Invited Amicus Curiae Saipan Mayor’s Office. BEFORE: MIGUEL S. DEMAPAN, Chief Justice, ALEXANDRO C. CASTRO, Associate Justice, and JOHN A. MANGLONA, Associate Justice PER CURIAM: ¶1 Petitioners request this Court to exercise its constitutional mandate to reapportion and redistrict the Commonwealth house of representatives pursuant to Article II, Section 4(b) of the Constitution of the Commonwealth of the Northern Mariana Islands, as both the legislature and the governor failed to act within the time frame provided therein. We find petitioners adequately pled the constitutional prerequisites initiating this Court’s jurisdiction. Accordingly, after careful consideration of the law, legislative history and policy, and the arguments presented by petitioners and amici curiae, we conclude as follows: 1 (1) Apportionment of the house of representatives shall be based on the total number of persons residing in the Commonwealth; (2) The house of representatives shall be enlarged by two members, both representing Saipan, to reflect the increase in population; (3) Saipan shall be redistricted into five election districts as described herein; (4) We are without jurisdiction to order the Commonwealth government to participate in the 2010 United States Census; and (5) Equity and public policy require awarding petitioners’ request for costs. ¶2 Due to time constraints imposed by the November 2007 election, this decision outlines petitioners’ arguments and our conclusions. A supplemental opinion, with detailed analysis, will be issued at a later date. I ¶3 On May 14, 2007, Maria Frica Tudela Pangelinan and Christina-Marie E. Sablan petitioned this Court to redistrict the island of Saipan pursuant to Article II, Section 4 of the NMI Constitution. 2 Section 4 requires the house of representatives be reapportioned or redistricted at 1 Only communications substantially conforming to the Commonwealth Rules of Appellate Procedure are considered. As such, the May 22, 2007 letter from Froilan C. Tenorio, the June 29, 2007 letter from Stephen C. Woodruff, and the July 6, 2007 letter from Ambose M. Bennett play no part in our decision. 2 Article II, Section 4 of the NMI Constitution provides: a) At least every ten years and within one hundred twenty days following publication of the results of a decennial census, the legislature shall reapportion the seats in the house of representatives or revise the districts for electing representatives as required by changes in Commonwealth population or by law. A reapportionment or redistricting plan shall provide for contiguous and compact districts and for representation by each member of the house of representatives of approximately the same least every ten years to compensate for population changes. The legislature is mandated to devise a reapportionment or redistricting plan “within one hundred twenty days following publication of the results of a decennial census,” such plan providing “for representation by each member of the house of representatives of approximately the same number of residents to the extent permitted by the separate islands and the distribution of population in the Commonwealth.” N.M.I. Const. art. II, § 4(a). If the legislature fails to act within the prescribed 120 day period, the task of reapportioning or redistricting falls to the governor, who must likewise act within 120 days. If both the legislature and the governor fail to act, any qualified voter may petition this Court to do so, such petition initiating this Court’s “original and exclusive jurisdiction to review a [reapportionment or redistricting plan] and to amend it to comply with the requirements of th[e NMI] Constitution or to establish a plan . . . .” N.M.I. Const. art. II, § 4(b). ¶4 Representation in the Commonwealth house was last modified by the Reapportionment Act of 1991, 1 CMC §§ 1501-04. Petitioners argue the Act violates the one person, one vote standard applied to state legislatures in Reynolds v. Sims, 377 U.S. 533, 568 (1964), since it apportions house seats by total population rather than United States citizens. See also Wesberry v. Sanders, 376 U.S. 1, 17-18 (1964) (applying one person, one vote to United States Congressional elections). The Act is based on the 1990 United States Census, which reported Saipan and the Northern Islands to have 38,932 residents, 17,201 of which were United States citizens. Rota had 2,295 residents, 1,595 being citizens, and Tinian and Aguiguan had 2,118 residents, with 1,286 citizens. Since the majority of people residing in the Commonwealth are non-citizens – the only United States jurisdiction so situated – petitioners maintain counting non- citizens for purposes of apportionment impermissibly dilutes the votes of Rota and Tinian residents, where the ratios of non-citizens are much lower than Saipan. Moreover, population changes during the intervening years have exacerbated the alleged inequities. number of residents to the extent permitted by the separate islands and the distribution of population in the Commonwealth. b) If the legislature fails to act pursuant to section 4(a), the governor shall promulgate a reapportionment or redistricting plan within one hundred twenty days after the expiration of the time for the legislature to act. The governor’s plan shall be published in the same manner as an act of the legislature and upon publication shall have the force of law. Upon the petition of any person qualified to vote, the Commonwealth appeals court or the United States District Court if no Commonwealth appeals court has been created under section 3 of article IV has original and exclusive jurisdiction to review a plan and to amend it to comply with the requirements of this Constitution or to establish a plan if the governor has failed to act within the time provided. N.M.I. Const. art. II, § 4. ¶5 The 2000 United States census lists the population of Saipan and the Northern Islands as 62,398, Rota as 3,283, and Tinian and Aguiguan as 3,540. However, United States citizens number only 25,909, 3 2,266, and 1,953, respectively. Based on these discrepancies, petitioners argue the votes of Rota and Tinian residents are diluted 71 percent and 83 percent respectively in relation to Saipan residents. Petitioners submitted a plan they believe remedies the alleged debasement of Rota and Tinian votes by redistricting Saipan into twelve election districts, each choosing a single representative. See Appendix A. ¶6 In addition to redistricting the house of representatives, petitioners also request an order instructing the appropriate Commonwealth governmental agency to participate in the United States 2010 Census Redistricting Data Program. Petitioners maintain that participation will ensure the Commonwealth is presented with statistical information necessary to guarantee voter equality in the future. Lastly, petitioners request reimbursement of costs. ¶7 Petitioners have properly initiated our Article II, Section 4(b) jurisdiction. We take judicial notice that more than 240 days have past since publication 4 of the 2000 United States Census without legislative or gubernatorial action to reapportion or redistrict the house of representatives. Thus, when petitioners, as qualified Commonwealth voters, filed their petition, jurisdiction vested in this Court. N.M.I. Const. art. II, § 4(b); see Sablan v. N. Mariana Islands Bd. of Elections, 1 CR 741, 751 (1983). II ¶8 This case presents both the opportunity and necessity to address the relationship between the Covenant, the Commonwealth Constitution, and the Federal Constitution. Although this Court has made brief excursions into similar issues in the past, the present case calls for a more thorough analysis – one exploring the historical, political, and legal relationship between the Commonwealth and the United States. However, against the need for analytical diligence must be weighed this matter’s exigency, as preparations for the November 2007 elections are currently underway. Accordingly, we have determined the most prudent course of action is to issue our conclusions at this time, with additional reasoning to follow. 3 Petitioners’ calculate 25,913 United States citizens in Saipan and the Northern Islands. We include our revised calculation. 4 We need not determine the exact date of publication which would satisfy the test announced in Sablan v. N. Mariana Islands Bd. of Elections, 1 CR 741, 753-54 (1983); that is, “when an official counting of the people, showing the population figures broken down into usable data . . . have been officially released to the public, or been made available for the use of the general assembly.” The record demonstrates the Commonwealth government was in possession of the 2000 Census data by September 24, 2003 at the latest. House of Representatives Brief, Ex. E. Over three and a half years elapsed between September 24, 2003, and the filing of this petition, far more than the required 240 days. ¶9 Section III of this opinion addresses persons counted for apportionment and districting, and outlines Saipan’s revised election districts with representatives allotted to each district. We briefly discuss our conclusions on these issues, but full analysis will follow in a supplemental opinion. Section IV of this opinion addresses participation in the 2010 United States Census and the award of costs. We find these issues do not require analysis beyond that appearing here. III A Total Population Counted for Apportionment and Districting ¶ 10 Article II, Section 4(a) of the NMI Constitution instructs that reapportionment or redistricting plans provide “for representation by each member of the house of representatives of approximately the same number of residents to the extent permitted by the separate islands and the distribution of population in the Commonwealth.” (emphasis added). Petitioners direct our attention to the terms “residents” and “population,” asserting the former is a subset of the later. They suggest the drafters, by counting only “residents,” intended to exclude nonresident workers for purposes of apportionment and districting. Although we appreciate petitioners’ logic – a classifier surely excludes its negative – petitioners construct their argument by abstracting the term “nonresident worker” from its context. ¶ 11 “Nonresident worker” 5 is an immigration status bearing no direct relationship with legislative apportionment. Although the nonresident worker classification was familiar to our Constitution’s drafters, see generally T.T.C. tit. 49, we do not understand their use of “residents” in Article II, Section 4(a) to be in opposition to “nonresident workers.” Rather, for purposes of reapportionment or redistricting, “‘residents’ may mean persons who are counted in a census or other enumeration made by the government.” ANALYSIS OF THE COVENANT TO ESTABLISH A COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS IN POLITICAL UNION WITH THE UNITED STATES OF AMERICA, Section 4(a). This language is permissive, leaving some degree of discretion to the legislature. We conclude that Article II, Section 4(a) does not, by its own language, exclude nonresident workers. Nor do we find that the legislature has signaled a desire 5 The Commonwealth Code defines “nonresident worker” as: [A]ny available individual who is at least 18 years old and who is capable of performing services or labor desired by an employer and who is not a resident worker. Nonresident worker shall not include any immediate relative, spouse or children including legally adopted children of a U.S. citizen or any foreign investor, or a person in the Northern Mariana Islands between and including January 1, 1974 to November 3, 1986. 3 CMC § 4412(i) to exclude nonresident workers from reapportionment figures. 6 Evidence indicates the legislature considered total population 7 as reported by the United States Census in both reapportionments since our Constitution’s drafting. See S. Stand. Comm. Rep. 3-252 (N. Mar. I. 1983); H.R. Stand. Comm. Rep. 3-158 (N. Mar. I. 1983); PL 3-78. ¶ 12 Petitioners maintain that only United States citizens should be considered for reapportionment or redistricting. They argue that the high percentage of noncitizens residing in the Commonwealth, and their uneven distribution, cause certain Commonwealth residents to wield increased voting strength in violation of the one person, one vote principle. We disagree. Article II, Section 4(a) does not require, and the legislature has not relied upon, figures other than total population. If any category of persons is to be excluded for purposes of legislative apportionment, the Court is not the proper body to pioneer it. B Saipan Redistricted into Five Election Districts ¶ 13 Previously, the makeup of the house of representatives derived from Article II, Section 3 of the NMI Constitution, as augmented by the Reapportionment Act of 1991, 1 CMC §§ 1501-04. Saipan was divided into four election districts, electing a total of sixteen representatives. 1 CMC § 1504. 8 Based on increased population as reported in the 2000 United States Census, we 6 This language is not meant to imply that nonresident workers may be excluded. We do not consider the constitutionality of excluding nonresident workers from the population counted for reapportionment. 7 Although discussion of population figures, and particularly what they represent, is minimal, there is no indication the legislature considered figures other than total population. In the absence of language discussing persons included in population figures, we assume it was a non-issue. See Commonwealth v. Saburo, 2002 MP 3 ¶ 12. 8 Section 1504 of the Commonwealth Code provides: For the purpose of electing 16 members of the House of Representatives from Saipan and the islands north of Saipan, Saipan shall be divided into the following four election districts: First District: Municipal districts 6 and 10, electing six representatives. Second District: Municipal districts 1, 2, 3, 4 and 5, electing two representatives. Third District: Municipal districts 7 and 11, plus the islands north of Saipan, minus that portion of census enumeration district 11 or its functional equivalent which overlaps into municipal districts 7 and 11, electing six representatives. Fourth District: Municipal districts 8 and 9, plus that portion of census enumeration district 11 or its functional equivalent which overlaps into municipal districts seven and 11, electing two representatives. 1 CMC § 1504. conclude that the house of representatives shall be enlarged by two members to give Saipan eighteen representatives. ¶ 14 Further, since the 2000 United States Census did not report population statistics within then-current election districts, and because this Court is without population information other than that provided in the census, we conclude that Saipan must be redistricted along census boundaries to ensure sufficient representational equality. Accordingly, Saipan shall be redistricted into five election districts by grouping census block groups. The districts seek to maintain populations with historically and/or geographically similar interests while adhering to the constitutional requirement of “contiguous and compact districts” which ensure “representation by each member of the house of representatives of approximately the same number of residents to the extent permitted by the separate islands and the distribution of population in the Commonwealth.” N.M.I. Const. art. II, § 4(a). Appendix B shows the new districts. Appendix C lists the census block groups included in each election district, along with representational deviations. IV Order to Participate in the 2010 United States Census ¶ 15 This Court’s Article II, Section 4(b) jurisdiction to reapportion and redistrict does not extend so far as ordering the legislative branch, executive branch, or other governmental agency to participate in the 2010 United States Census. Nor have petitioners cited an alternative source of jurisdiction. In the absence of express authority to the contrary, we conclude that participation in the 2010 United States Census is a question best left to the political process, and thus we are without authority to require it. Award of Costs ¶ 16 Commonwealth Rule of Appellate Procedure 39(a) 9 authorizes awards of costs only in appeals, unless provided by law. Petitioners have not cited any law or rule authorizing an award of costs in the present case. Nevertheless, because petitioners’ request is reasonable, 10 and 9 Rule 39(a) states: Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the Court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, or affirmed in part or reversed in part, or is vacated, costs may be allowed as ordered by the Court. Com. R. App. P. 39(a). 10 Although petitioners’ have not specified an exact amount, at the hearing they stated the total would be under $1000. because this Court believes it ill-advised to perpetuate disincentives for citizens acting to remedy governmental failures, we rely upon our Rule 2 11 authority to grant petitioners’ request. ¶ 17 As the duty to reapportion or redistrict the house of representatives is, by nature and by law, a legislative function, we hold that both houses of the Commonwealth legislature jointly and severally liable for reasonable costs incurred by petitioners in furtherance of this action. 12 Petitioners shall therefore submit a bill of costs within fourteen days after entry of judgment. V ¶ 18 For the foregoing reasons, the petition is GRANTED IN PART and DENIED IN PART. This Court shall retain jurisdiction over the matter until such time as the supplemental opinion is issued, unless this Court orders otherwise. Concurring: Castro, Manglona, J.J. Concurring in part, dissenting in part: Demapan, C.J.: I respectfully dissent from section III(B) of the majority’s opinion, and concur with all other parts. 11 Rule 2 provides: In the interest of justice, or to expedite a decision, or for other good cause shown, this Court may, except as otherwise provided in Rule 26(b), suspend the requirements or provisions of any of these rules in a particular case, on application of a party or on its own motion, and may order proceedings in accordance with its direction. Com. R. App. P. 2. 12 We take no position on petitioner Pangelinan’s offer to reimburse her private expenditures with funds from her senate expense account. Although we are unaware of any legal reason precluding such a reimbursement, neither do we believe it proper for the Court to interfere in internal senate matters. We leave such expenditure decisions to the proper authorities within each house. 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Numl)er 01 Popll�1k>n R9pI_talives ., 218011 • ., '''' , ., "'''' • ., M� , • n• • , -_. _.­ ._- --- - '.... 1 . _- Appendix B Five New Election Districts August 7. 2007 District 6 Tinian – One Representative Population: 3540 District 3 +2.3% deviation from ideal district (Six Representatives) District 7 (-3.9% deviation from ideal district) Rota – One Representative Block Group Population Population: 3283 9507001 752 -5.1% deviation from ideal district 9507002 873 9507003 1154 District 1 9507004 552 (Six Representatives) 9507005 414 (+5% deviation from ideal district) 9504001 401 Block Group Population 9504002 338 9605021 1147 9404003 452 9506022 2898 9504004 1093 9506023 2151 9504005 491 9515001 987 9504006 813 9515002 1738 9505011 2956 9513011 4232 9505012 1384 9513021 403 9505013 989 9513022 732 9505014 2036 9513023 3955 9505021 1235 9514001 538 9505022 2811 9514002 611 9502004 1206 9514003 232 Total 19950 9514004 507 9514005 267 District 4 9514006 493 (Two Representatives) 9514007 917 (-7.5% deviation from ideal district) Total 21808 Block Group Population 9502001 2470 District 2 9502002 564 (Two Representatives) 9502003 437 (+4.5% deviation from ideal district) 9503001 250 Block Group Population 9503002 282 9509001 661 9505003 545 9509002 496 9501001 1489 9509003 463 9501002 359 9510001 388 N. Islands 6 9510002 569 Total 6402 9511001 512 9511002 537 District 5 9512001 242 (Two Representatives) 9512002 397 (+1.2% deviation from ideal district) 9508001 970 9503004 595 9508002 238 9503005 371 9508003 239 9506011 1423 9508004 104 9506012 1232 9508005 532 9506013 3385 9506024 884 Total 7006 Total 7232 Maximum Deviation = 12.5% Appendix C Composition of Saipan Election Districts by Block Group and Percent Deviation of Districts