Wisconsin Legislature: vol72-172

72 Op. Att'y Gen. 172, 172 (1983)

Legislature; Public Officials; Reapportionment; Redistricting;

The assembly districts altered as to boundaries and renumbered by 1983 Wisconsin Act 29, became effective July 20, 1983. An assemblyperson is a constitutional state public officer who must be a resident and elector of the district he or she is chosen to represent. An incumbent assemblyperson continues to represent the district from which he or she was chosen, as altered as to boundaries and as renumbered. Limitations on in-district travel and mass mailings to constituents discussed. OAG 47-83

October 4, 1983

72 Op. Att'y Gen. 172, 172 (1983)

THOMAS A. LOFTUS,

Chairperson

Assembly Committee on Organization

72 Op. Att'y Gen. 172, 172 (1983)

Pursuant to section 165.015(1), Stats., the Assembly Committee on Organization requests my opinion as to the effect of 1983 Wisconsin Act 29 on individual legislators currently holding office. You are especially concerned with those legislative districts which have been renumbered or whose boundaries have been changed by Act 29. In

Wisconsin State AFL-CIO v. Elections Bd.

, 543 F. Supp. 630, 639 (D.C. 1982), the order of the court provided: "The appended judicial plan of reapportionment be effective for the 1982 legislative elections and thereafter until such time as a valid constitutional redistricting plan is enacted into law.

72 Op. Att'y Gen. 172, 172 (1983)

The judicial plan was printed in the 1981-82 Wisconsin statutes as chapter 4 beginning at section 4.004 together with chapter 4 as created by chapter 304, Laws of 1971, even though the latter was held unconstitutional in

AFL-CIO v. Elections Bd

. The legislative elections in the November 1982 general election were held in accordance with the judicially ordered plan. In 71 Op. Att'y Gen. 157 (1982), this office stated that the effective date of the new district lines for purposes of nominations and regular, recall and special elections was the date of the court order, June 17, 1982. This office also concluded that holdover senators in districts whose boundaries were altered were responsible to the inhabitants of the district to which their numbers corresponded under the new districting plan and not to the inhabitants of those portions of their former district which were not included within the altered district.

72 Op. Att'y Gen. 172, 173 (1983)

Wisconsin Constitution article IV, section 3 requires that "[a]t their first session after each enumeration made by the authority of the United States, the legislature shall

apportion and district anew the members

of the senate and assembly, according to the number of inhabitants...." The Legislature responded to the federal court order issued in

Wisconsin State AFL-CIO

by enacting the reapportionment plan set forth in 1983 Wisconsin Act 29. A reapportionment plan is presumed constitutional and its unconstitutionality must be established beyond question.

State ex rel. Broughton v. Zimmerman

, 261 Wis. 398, 52 N.W.2d 903 (1952). This opinion presumes that the reapportionment plan meets the one-person one-vote requirements under the federal constitution and the "contiguous territory... in as compact form as practicable" requirements of Wisconsin Constitution article IV, sections 4 and 5.

72 Op. Att'y Gen. 172, 173 (1983)

1983 Wisconsin Act 29 does not specifically set forth the relationship of the new districts to incumbent legislators and especially as to assemblypersons. The Act utilizes different numbers for assembly districts than those assigned by the federal court. The Act does not include a cross-reference by name, map, index or number as between each incumbent assemblyperson, the judicially numbered district and the number assigned the district under Act 29.

72 Op. Att'y Gen. 172, 173 (1983)

1983 Wisconsin Act 29 was published on July 19, 1983, and by reason of section 991.11 all of its provisions, with exceptions,¯

became effective July 20, 1983.

72 Op. Att'y Gen. 172, 173 (1983)

Section 14 of Act 29 provides that "[s]ections 8.15(9) and 8.20(10) of the statutes, as affected by this act, first apply to the regular 1984 September primary and November general elections for representative in congress, and for members of the senate and assembly."

72 Op. Att'y Gen. 172, 173-174 (1983)

At first blush one might argue that since the Legislature provided that sections 8.15(9) and 8.20(10) should first apply to the 1984 September primary and November general elections, the newly legislative-created districts have no relationship to incumbents. I am of the opinion, however, that the Legislature did, within constitutional terms, "apportion and district anew

the members

of the senate and assembly," and that it intended that incumbents elected from judicially ordered districts immediately serve the district from which they were elected as altered with respect to boundaries and as renumbered in the case of assembly districts. This conclusion is in part based on legislative intent set forth in section 4.001(4) concerning the urgency to fulfill the constitutional duty with respect to apportionment which includes a statement that the Legislature had improved upon the court plan. It is primarily based, however, on the fact that section 2 of Act 29 expressly repealed all of chapter 4 which set forth the judicially created districts and those created by chapter 304, Laws of 1971. As of July 20, 1983, the only viable districts were those created by 1983 Wisconsin Act 29. Further, the Act made it clear that the former districts were not to be utilized for any election. The Act revised section 4.004 to provide:

72 Op. Att'y Gen. 172, 174 (1983)

On or after the effective date of this act (1983), any special election to the legislature called to fill a vacancy for the balance of an unexpired term, any election to recall a member of the legislature, and any regular election to the legislature, shall be from the districts as described in ss. 4.009 and 4.01 to 4.99.

72 Op. Att'y Gen. 172, 174 (1983)

Section 14 of 1983 Wisconsin Act 29 refers only to the initial applicability of amended sections 8.15(9) and 8.20(10), not to the initial applicability of the entire Act. Section 14 indicates that the state election board is not required to provide candidates for state office with copies of maps showing the boundaries of the reapportioned districts until the 1984 primary and general elections. This does not mean that the new districts are not effective before 1984, only that the board need not supply maps until that time.

72 Op. Att'y Gen. 172, 174 (1983)

My conclusion that the plan became immediately effective is supported by federal cases.

See

Federation for American Immigration Reform v. Klutznick

, 486 F. Supp. 564,

app. dis'd

, 447 U.S. 916 (D.C. D.C. 1980), and

Mach v. East Baton Rouge Parish School Bd.

, 533 F. Supp. 556 (D.C. La. 1980). In addition, there are strong policy considerations in favor of precluding delays in implementing reapportionment plans.

See

Petuskey v. Rampton

, 243 F. Supp. 365 (D.C. Utah 1975).

72 Op. Att'y Gen. 172, 174-175 (1983)

Finally section 991.11 provides that every act "which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication." Therefore, the Act became effective on July 20, 1983.

72 Op. Att'y Gen. 172, 175 (1983)

No real importance can be given to the fact that the Assembly changed the numbers of assembly districts from those utilized under the court plan. It did not result from any legislative intent to reassign a

member

(an incumbent legislator) to a district other than that from which he or she was elected. It was a reassignment of a

number

only, to the district which had altered boundaries. The district remained the district from which he or she was elected as altered. The total number of assembly districts was neither increased nor decreased. I am advised that the change was made to return to the former formula and procedure of the Legislature under which the senate district number multiplied by three would equal the number of the largest numbered assembly district contained within the senate district.

72 Op. Att'y Gen. 172, 175 (1983)

Your specific questions and my answers follow:

72 Op. Att'y Gen. 172, 175 (1983)

1. Does a legislator continue to represent, during the remainder of his or her term, all those persons within the election district from which he or she was elected?

72 Op. Att'y Gen. 172, 175 (1983)

2. Does a legislator, who currently resides in a district affected by Act 29, represent those persons within the district who were newly-placed there by Act 29?

72 Op. Att'y Gen. 172, 175-176 (1983)

The answer to your first question is no and the answer to your second question is yes. However, senators and assemblypersons are public officers and state constitutional officers and, in a broad sense, are responsible to all inhabitants of Wisconsin. Wisconsin Constitution article IV, sections 4 and 5;

State v. Eaton

, 133 P.2d 588, 591, 592 (Mont. 1943). An assemblyperson is elected from a district by the qualified electors therein, must be a resident and qualified elector "in the district he may be chosen to represent" and has special responsibility to such district and all of the inhabitants therein. Wisconsin Constitution article IV, sections 4 and 6.

Also

see

State ex rel. Reynolds v. Zimmerman

, 22 Wis. 2d 544, 564, 565, 126 N.W.2d 551 (1964). Section 4.004 as created by Act 29 makes the assemblyperson solely subject to the electors of the altered district as far as recall is concerned. In

City of Philadelphia v. Klutznick

, 503 F. Supp. 663, 672 (D.C. Pa. 1980), it was stated: "A legislative representative suffers no cognizable injury, in a due process sense or otherwise, when the boundaries of his [or her] district are adjusted by reapportionment."