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IN THE CIRCUIT COURT OF COLE COUNTY STATE OF MISSOURI BOB JOHNSON, et al.,
) ) ) ) ) ) )

Plaintiffs,
VB.

Case No.: 12AC-CC00056 Division I

STATE OF MISSOURI, et al.,

)
) )

Defendants.

FINDINGS

QF FACT

AND CONCLUSIONS OF LAW

FINDINGS OF FACT
1. Plaintiffs are citizens, residents, registered voter and taxpayers of the

State of Missouri. They live in different districts of the State of Missouri and would be affected by the New House Map. 2. Defendant-Intervenors are citizens, residents, registered voters, and are state Jay

taxpayers of the State of Missouri. The Defendant-Intervenors representatives, who intend to

run

£Orre-election.

Defendant-Intervenor

Barnes is also the duly elected Representative Representatives,

of the Missouri House of Barnes Barnes is

District 114. Under the New House Map, Representative

lives and would run for re-election in 2012 in District 60. Representative a Republican. Representative Defendant-Intervenor Stanley Cox is also the duly elected

of the Missouri House of Representatives,

District 118. Under the

New House Map, Representative

Cox lives in District 54, but intends to run for re-

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election in 2012 in District 52. Representative

Cox is a Republican.

Defendant-

Intervenor Don Gosen is also the duly elected Representative of Representatives,

of the Missouri House GOBen

District 84. Under the New House Map, Representative

lives in District 100, but would run for re-election in 2012 in District 101. Representative Gosen is a RepUblican. The particular harms threatened to

Defendant-Intervenors'

interests include their specific and personal interests in
(

running for re-election in districts established in compliance with Missouri's constitution and the delay, uncertainty, and expenditures of time and resources

that they will suffer if the New House Map is invalidated. 3. Defendant Chris Koster (the "State") is the Missouri Attorney General

and a proper party to appear as or on behalf of the State to defend the redistricting plan at issue pursuant to Rule 87.04 and §§ 27.060 and 527.110, RSMo. 4. Defendant Robin Carnahan (the "Secretary") is the Missouri Secretary

of State. Among her duties, the Secretary presently is required by statute to begin accepting candidate declarations for the August 2012 primary election. Defendant Carnahan is named as a defendant solely because of her role in administering elections; she takes no position on the merits of the Plaintiffs' claims. 5. Pursuant to Art. III, § 2 of the Missouri Constitution, on September 8,

2011, the SUpreme Court appointed six Missouri Court of Appeals judges to comprise the judicial apportionment commission, which was given responsibility for

drawing a new map and plan £OJ: Missouri House districts upon the failure of the bipartisan apportionment commission to timely file a final plan.

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6.

Based upon the 2010 census data, the population of the State of

Missouri is 5,988,927. Using the constitutional formula set forth in Article III, § 2, the population target for each new House district is 36,742.
7.

On November 80, 2011, the judicial commission unanimously signed

and filed its House Redistricting Plan (the "Plan") with the Secretary of State.
8.

Prior to that date, the judicial commission held one public hearing, arid

otherwise met in executive session, without public announcement, on variou.s occasions - including the meeting at which the judges on the commission agreed
upon the Plan.

9.

The Plan draws 163 Missouri House of Representatives districts. All of

them. consist of contiguous territory, i.e., there is no place in which parte of one district are divided by another district. 10. Plaintiffs filed this action for declaratory judgment in this Court on

January 27,2012, after the order of the Supreme Court denied a Petition for Writ of Prohibition without prejudice. The Supreme Court directed the trial court to expedite the matter. The matter was originally set for trial on February 3, 2012. After granting the motion to intervene, the defendants and the intervenors were not ready for trial. With no hearing date in the reasonable future considering the looming deadline for filing for office in the House seats, the Court ordered the parties to submit their evidence by stipulation or affidavit where no stipulation was possible and the Court would decide on these submissions and briefs of counsel.

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11..

No district was drawn with an intent to discriminate on an improper

basis. 12.. The overall population deviation in the plan is 7.8% - well within the

range allowed by federal courts, and within the range of plans filed since the current constitutional requirements were enacted in 1966. Although in some

instances lines could be redrawn to make districts, including adjacent districts, more equal in population, to do so would require that some districts become less compact, or that additional political subdivision lines be breached, or threatening create a violation of§ 2 of the Voting Rights Act, 42 U.S.C. § 1973.
13.

to

The districts in the Plan are compact. Although some of them could be

m.ore compact. to make one compact often would require another to become less compact, and for the population counts of the districts to be moved further from the ideal. 14. Despite the public filing o£the Plan and the announcements and public

debate over that filing, Plaintiff's did not file any suit regarding the Plan until seeking relief directly in the Missouri Supreme Court on January 25, 2012, and did

not file their petition in this Court until January 27, 2012.
CONCLUSIONS Count 1. OF LAW

Y: Sunshine Law

Missouri's Sunshine Law covers only "public governmsnta! bodies,"

which as defined in § 610.010(4), excludes "[udicial entities" except insofar as they are acting in an "administrative capacity."
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2.

The judicial apportionment

commission, appointed pursuant to Art.

III, § 2 and Art. V, § 4 of the Missouri Constitution, by the Missouri Supreme Court and consisting solely of judges of the Missouri Court of Appeals, is a "judicial entity," notwithstanding 3. its responsibility for performing a non-judicial task.

In drawing new legislative districts, the judicial apportionment capacity; its product bas the

commission was not operating in an administrative

force and effect of a generally applicable statute (such as §§ 128.245·.458), not the administration 4. of the courts (see Mo. S. Ct. Operating Rule 2.06). Because the judicial apportionment commission was a "judicial entityn

not operating in an "administrative 5.

capacity," it is not subject to Chapter 610. commission not a "judicial entity," or

Were the judicial apportionment

it was operating in an "adminiserative

capacity," the acts about which the plaintiffs

complain - holding meetings without following the procedures outlined in § 610.020 - would nonetheless not violate the law. By giving the apportionment commissions

the authority to schedule and hold meetings as they deem "advisable," Art. preempts the provisions of Chapter 610 with regard to meetings. 6.

In,

§2

Moreover, given that the commission iued its plan on November 30,

2011, that this case was not filed until January 27, 2011, and candidate filing begins on February 28,2012, it would not be in the public interest to invalidate the plan even if there were a Sunshine Law violation.

COunt II: Contiguity

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7.

The Missouri Constitution requires that House districts be

"contiguous." Art. III, § 2. 8. "Contiguous" means that the district is not discontinuous, i.e., that no

district is divided by another district or districts. Contiguity does not require that there be a bl.'idgeover any and every river or stream or other body of water that stretches across a district. State ex rel. KansCJ8City v. North Kan..8Cl8 City, 228 S.W.2d 762,773 (Mo. 1950); Wilkins u. West, 571 S.E.2d 100,109-111 (Va. 2002). 9. No district was drawn with the purpose of favoring or disfavodng any

group of individuals compared to any other group of individuals including, but not limited to, any constitutionally protected or suspect class of citizens. Counts I and IV: Populatign 10. The Missouri Constitution does not insist on precise equality of

population. Rather, it requires the commission to draw districts that are merely "as
nearly as possible, equal" to the State's population divided by 163. Art. III, § 2

(emphasis added). The Missouri Supreme Court has held that other interests inform the redistricting process, that "absolute precision" in population equality is not required, and that "minimal and practical deviations" from population equality are appropriate. Pearson v. Koster, Mo. Supreme Court Case No. S092200,
S092203 slip op. at 6·7 (Jan. 17,2012). 11.

As noted above, no district defined in the judicial commission's plan

varies more than 3.92 percent from the ideal. That is "nearly equal" in population.

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12.

The parties have stipulated that the House Map was drawn without

any intent to benefit or disfavor any particular group over another group. Thus, the deviations that exist in the House map are incidental and not the product of a "gerrymander" or other attempt to benefit or disadvantage a particular group. 13. Because the plan in essence represents an exercise of legislative

discretion, it is the burden of the plaintiffs to show that the plan "clearly and undou.btedly" violates the requirement that the districts be "as nearly as possible, equal" in population.

See, e.g., Aebury v. Lombardi, 846 S.W.2d 196,199 (Mo. bane

1993); Oeello v. Koster, -•• S.W.3d --., 2011 WL 5547027 at "'3 (Mo. bane 2011). The plaintiffs have failed to make that showing. Although they have pointed to other plans that have lower deviations from the ideal, they have not proven that those plans are "possible" legally (i.e., that every district in each of those plans complies with constitutional and statutory requirements, and that the plan overall complies

with the Voting Rights Act, 42 U.S.C. § 1973) or practically (i.e., balancing the other relevant political considerations that legitimately inform the redistricting process). Qounty III: Cgmpactnees 14. Finally, the Missouri Constitution requires that districts be lias

compact as may be." Art. III, §2. Again, the burden is on the plaintiffs to show that the plan filed by the appellate apportionment requirement. 15. Both from visual observation of the districts in the plan and from the commission does not meet that

expert and statistical evidence presented by Dr. HofeIler, Defendant-Intervenors'

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expert, it is apparent that the districts in the plan are "compact." In contrast with the distdcts shown in the record from other states cited by Dr. Hofelier - states in which there are also compactness requirements - the districts in the judicial commission's Plan do not unduly stretoh across the state, in an apparent effort to gerrymander for partisan gain Orany other questionable purpose. And the compactness scores for the Plan are comparable to or better than those of other plans available to the judicial commission. 16. As with population equality, the plaintiffs failed to show that the plan

"clearly and undoubtedly" violates the "compactness" requirement. To merely show that one or more districts could be redrawn to be more compact is not enough; that

will be true of some, if not many, districts in any and every possible plan.
17. Count VI asserts a claim for injunctive relief premised on the

violations alleged in Counts I-V. Since the Court has ruled those counts against Plaintiffs, Count VI has no merit and Plaintiffs' request for relief therein is denied.

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CONCLUSION AND JUDGMENT

Having found that the judicial apportionment commission did not violate the Sunshine Law, that the distriots in its plan are contiguous, and that plaintiffs have failed to prove that the districts are not as nearly equal in population as possible nor that they are not as compact "as may be," the CO'rt enters judgment for the defendants.

CIRCUIT JUDGE

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