d

LEXSEE

Pos itiveAs of: Jun 02, 2011

John W. Rice e t a I . v . 13iI1 English et a l .

10 1 0968

SUPREME COURT OF ALABAMA

835 So. 2d 157; 2002 Ala . LEXIS 291

May 24 , 2002 , Re l ea sed

SUBSEQUENT HISTORY: [ ** 1] As CorrectedJuly 27 , 2002 . As Corrected December 9, 2002 . Re-leased for Publication January 10 , 2003 . As CorrectedMay 2 1 , 2003 .

PRIOR HISTORY: Appeal from Montgomery CircuitCourt. (CV-01-2311) . TRIAL JUDGE: Johnny Hard-wick .

DISPOSITION: AFFIRMED .

CASE SUMMARY:

PROCEDURAL POSTURE : Appellant voters chal-lenged the granting of summary judgment to appelleestate election officials, including the Alabama Governor,who intervened, by the Montgomery Circuit Court (Ala-bama), in the voYers' challenge to the redistricting planadopted by the Alabama Legislature, contending that itdid not satisfy the one-person, one-vote standard man-dated by Ala. Const. art. IX, & 200. Two senators alsointervened.

OVERVIEW: The voters sought a judgment declaringthat the new plan violated s tate law and injunctive relief.The trial court afforded the legislature appropriate defer-ence in its solution to the difficult question of dividingthe state into 35 s enate di stricts with approximately equalpopulation. The districts created by the legislature werewithin plus or minus five percent of the ideal populationof a senate di strict . A s judges, the appellate court couldnot overturn the redistricting plan on the ground s as -serted by the vote rs. The voters fail e d to overcome thepresumption of constitutionality that precedent required

to attach to the redistricting plan . The appellate courtdeclined to exercis e the powe r of judicial review , as noexpress cl au se of the constitution was clearly disre-garded . The appellate court refused to require furtherproceedin gs on wheYher a deviation in population of plusor minus five percent violated the constitutional mandateof Ala . Const . art . IX, & 200 that districts shall be asnearly equal to each other in the number of inhabitants asmay be . The trial cou rt properly entered a summaryjudgment in favor of the election officials, as joined in bythe intervenors .

OUTCOME : The judgment granting summary judgmentto state election officials was affirmed.

CORE TERMS: redistrictin g, deviation , summaryjudgment , senate districts , guidelines, election officials,s enator , inhabitants, reapportionment , judicial review,legislative districts, summary-judgment, federal law,splitting , genuine , apportionment , split , senatorial dis-tr icts, i ssue of material fact, preclearance, disregarded ,intervenors, decennial , untimely, census , state constitu-t i onal , separation-of-powers , m i nus, general rule, statesenate

Lexi sNe xi s(R) Hea dnotes

Governments > State & Territorial Governments > Leg-iS[¢YUreS[HN I ]See Ala. Const. art . IX. § 200.

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Constitutional Law > Congressional Duties & Powers >Census > General OverviewGovernments > State & Territorial Governments > Leg-is[n[ures[HN2 ] Ala . Const . art . IX, & 2 00 prohibit s a districtingpl an that divides a county between two districts. In otherwords , county lines must be preserved in any redistrict-ing pl an. To accommod ate the obvious fact that only aremarkably fortuitous c ircumstance would permit abso-lute equality in population between dis tricts while ob -serving the integrity of county lines § 200 speaks in prac -tical terms of the goal that the population of the districtsbe equal. It requires the districts to be as nearly equal toeach other in the number of inhabitants as may be .

Constitutional Law > Supremacy Clause > GeneralOverviewConstitutional Law > Equal Protection > Scope of Pro-tectionGovernments > State & Territorial Governments > Leg-islatures[I4N3]Pursuant to the Supremacy Clause in U.S. Const.art. VI, any provisions of Ala. Const art. IX, § 200 thatconflict with the Fourteenth Amendment to the UnitedStates Constitution would not be enforceable. In approv-ing the crossing of county lines, that part of § 200, whichforbids splitting any county between two or more legisla-tive districts, is not given effect. The requirements ofequal protection necessitate, in some instances, thatcounty lines give way in drawing legislative districts. Tothe extent that § 200 forbids such, it must yield for whenthere is an unavoidable conflict between the Federal anda State Constitution, the Supremacy Clause controls.

Governments > Courts > A utleority to AdjudicateGovernments > State & Territorial Governments > Leg-islatures[HN4]Courts should act on redistricting plans only if thelegislature fails to act constitutionally after having had areasonable opportunity to do so.

Civil Procedure > Venue > General OverviewGovernments > State & Territorial Governments > Leg-islatures[HN6]Th e re di str icting p l an pas s ed a s 200 1 Al a. Act s2 00 1 -7 27 establishes th e Montgomery Circuit Court asthe prop er venu e for challenges to the redistricting pl an .Act 2001-7 27 , § 4 .

Constitutional Law > Congressional Duties & Powers >General OverviewGovernments > Courts > Authority to AdjudicateGovernments > State & Territorial Governments > Leg-islatures[HN7]Abdication ofjudicial responsibility is inconsistentwith the settled principle that the people have forbiddenthe legislature from conducting itself in a manner incon-sistent with their constitution and when it does, it is in-cumbent upon the judiciary to nullify a legislative en-actment contrary to the constitution.

Governments > Courts > Authority to AdjudicateGovernments > State & Territorial Governments > Leg-islatures[HN8]While recognizing the court's power to exercisejudicial review of acts of the legislature, the court is alsomindful of the need for restraint.

Governments > Courts > Authority to Adjudicate[HN9]Since the power of judic ial review is not a logicaldeduction from the structure of the Constitution but onlya practical condition upon its successful operati on , itneed not be exercised whenever a court see s, or thinksthat is se es, an invasion of the Const itution .

Governments > Courts > Authority to A djudicate[I-IN10]The authority of the appellate court to reviewchallenges to acts of the legislature on constitutionalgrounds is a bedrock principle of Alabama's legal heri-tage.

Governments> Courts > Autlioriry to AdjudicateGovernments > State & Territorial Governments > Leg-isla tures[HN5]The court's disinclination to act in the earlier casesinvolving redis tricting has been based upon a judiciall yimpo sed prudential limitation on the cou rt's authority ins ensitive areas involving redis tr ictin g, rather than uponany prov i sion of th e State constitution lim iting th e powerof courts to enterta in the action.

Governments > Legislation > Interpretation[HNII]In reviewing a questio n regarding the constitu-tionality of a statute , the appellate court approach es theques tion with every presumption and intendment in favorof its va l idity , and s e ek to su stain rather than str i ke downthe enactment of a coordinate branch of the government.Moreover , where th e validity of a statute i s assa il ed andthere are two possible interpretati o n s, b y on e o f whichthe st a tute would be unconstitu t i o n a l and by the other

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would be va lid , the courts s h ould adopt the constructionthat would uphold it .

Governments > Legislation > Interpretation[HN 1 2]In passing upon the constitutionality of a leg i s la-t ive act, the courts uniformly approach the question withevery presumption and intendment in favor of it s valid -ity , and seek to su stain rather than strike down the en -actment of a coordinate branch of the government . Allthese principles are embraced in the simple statementthat it is the recognized duty of the court to sustain theact unless it is clear beyond reasonable doubt that it isviolative of the fundamental law .

Constitutional Law > Congressional Duties & Powers >Census > Apportionment & RedistrictingConstitutional Law > Congressional Duties & Powers >Census > Composition of the U.S. CongressGovernments > Federal Government > Elections[HN13 ]The appellate courts must afford the legi s laturethe highest degree of deference , and construe its acts asconstitutional if their lan guage so permits .

Civil Procedure > Summary Judgment > Hearings >General OverviewCivil Procedure > Summary Judgmeizt > Opposition >General OverviewCivil Procedure > Summary Judgn2ent > Time Linz&a-IiOitS[HN14]Absent an abuse of discretion, a trial court doesnot err in striking as untimely affidavits in opposition toa motion for summary judgment.

Civil Procedure > Summary Judgment > Appellate Re-view > General OverviewCivil Procedure > Summary Judgment > Motions forSummary Judgment > General OverviewGovernments > Federal Government > Elections[HNI S]The appellate courts will not consider a challengeto an order or a judgment of a trial court asserted for thefirst time on appeal. The rule has often been applied thatgeneral rule in the specific context of attempts to over-turn a trial court's summary judgment. The appellatecourt can consider an argument against the validity of asummary judgment only to the extent that the record onappeal contains material from the trial court record pre-senting that argument to the trial court before or at thetime of submission of the motion for summary judgment.

Civil Procedure > Sunanaary /udgneent > Appellate Re-view > General OverviewCivil Procedure > Summary Judgment > Standards >General OverviewCivil Procedure > Appeals > Reviewnbiliry > Preserva-zdon for Keview[HN16]On an appeal from a summary judgment, theappellate court cannot hold the trial court in error on thebasis of arguments made for the first time on appeal.

Civil Procedure > Appeals > Standards of Review >Plain Error > General OverviewCriminal Law & Procedure > Appeals > Standards ofReview > Pla in Crror > General Overview[HN 17)The "plain-error" rule, which dispenses with thenecessity for error preservation, is confined to death-penalty cases.

Constitutional Law > Congressional Duties & Powers >Census > Apportionment & RedistrictingGovernments > Federal Government > ElectionsGovernments > State & Territorial Governments > Leg-islatures[HNI8]While it is true that the legislative districts cre-ated at the time of ratification of the Alabama Constitu-tion of 1901 were not governed by AIa. Const. art . IX, §200, which did not come into operation until the nextdecennial census, constitutional and statutory provisionsare construed in light of the circumstances and condi-tions prevalent at the time of enactment.

Governments > Legislation > Interpretation[HN19]It is a familiar canon of statutory constructionthat where there is doubt as to the meaning and intent ofa statute by reason of the lan guage employed , or arisingfrom the context , courts may look to the history , condi-tions which lead co that enactment , the material sur-rounding circumstances, th e ends to be accomplished,and evils to be avoided or corrected , in order that thelegislative intent be ascertained and given effect , if pos-sible . A question of statutory construction cannot be an -swered apart from the historical context within which thestatute wa s pas s ed .

COUNSEL: For Appellants: Mark G . Mont i el , Mont -gomery .

For Appe llee s: Bill Pryo r , atty . gen ., and John J . Park,ass t . a tty. gen ., for Bill Eng li s h , Gloria Sinclair , Albe rtO . Ho ward , Alfonza Mene fee, J ohnny H . Wi l liam son ,Nan cy O . Rob erts on , Lamar Turn e r , Jimmy Stubbs,Reese McKinney, Jr ., Alfred Q. Booth , John E . Hulett, J .

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MacDonald Russ ell , Dwight Faulk , Wi ll iam C . Ston e,and J ames B ennett.

James E. W i lli ams , Flynn Mozingo, and C. Mark Bain ofMelton , Espy & William s, P . C . , Montgomery; and LarryT . Menefee , Montgomery , for Governor Don Siegelman .

Rob ert D . Sega ll and Shannon L . Holl i day of Cope land ,Franco, Screws & Gill, P .A ., Montgomery, for SenatorHenry Sanders and Senator Lowe ll Barron .

JUDGES: LYONS, Justice . Brown, Johnstone , Har-wood, Woodall, and Stuart, JJ ., concur . Houston , J ., con -curs specially. Moore , C . J . , and See , J ., dissent .

OPINION BY: LYONS

No county shall be divided between two districts, and nodistrict sha ll be made up of two or m ore counties notcont iguous to each other."

(Emphas i s added . )

[HN2]S ecti on 2 00 proh i bit s a districting plan that dividesa cou nty b etween two di s tricts . In other words , county[**3] lin es must b e preserved in any redistricting plan .To accommodate the obvious fact that only a remarkablyfortuitous circumstance would perm i t ab s olute equalityin population between di str ict s while observing the integ-rity of county lines § 200 speaks in practical terms of thegoal that the population of the districts be equal. It re-quires the districts to be "as nearly equal to each other inthe number of inhabitants as may be . "

OPINION

[ * 159 ] LYONS , Justice .

This case involves a state-law challen ge to the newredistricting plan for Alabama senate districts . That plan,proposed by Act No. 2001-727 , 2001 Ala . Acts (herein-after "the redistricting plan") , was approved by GovernorDon S iegelman on July 3 , 2001 , and was precleared bythe Attorney General of the United States on October 15,2001. John W. Rice , W i lliam McCall Harris , and PatriciaChr i stine N . Wood (hereinafter collectively referred to as"the Rice plaintiffs") challenged the redistricting plan,naming as defendants state e lection officials and con-tending that the plan failed to satisfy the one-person ,one -vote standard they viewed as mandated by Art . IX200 , Ala . Const. 1901

1The Montgomery Circuit Court

entered a summary judgment in favor of the state elec-tion officials . This appeal followed .

1. Constitutional6ackground

Art. [ **2] IX, & 200, Ala . Const. 1901 , describesthe duty of the Legi s lature in the creation of senate dis -tricts . It provides :

[HN1]°Tt shall be the duty of the leg islature at itsfirst session after taking of the decennial census of theUnited States in the year nineteen hundred and ten , andafter each subsequent decennial census , to fix by law thenumber of senators , and to divide the state into as manysenatorial di stricts as there are senators, which districtsshall be as nearly equal t o ea ch other in the number ofinhabitants as may b e, and each shall be entitled to onesenator , and no more ; and such districts , when formed ,shall not be changed unt i l the next appo rt ionin g s es sionof the legisl ature, a fte r th e next de c enni a l c ensu s of th eUnited State s shall have been taken ; provid ed , that coun-t i e s created a ft er th e next preceding appo rtion i n g sess iono f th e le g i s lature may be att ach ed to s en ato ri a l d i str i cts.

In e arlier litigation challenging the constitutionality ofAlabama leg i s lative dis tr icts on the basis of populationdisp arity under the " one-man, one - vote" requirement asexpressed in Revnolds v Sims , 377 U.S . 533 , 12 L . Ed .2d 506, 84 S . Ct . 1362 (1964) , the Supreme Court dis-cuss e d the necess ity of harmonizing the requirement of §200 for integrity of county lines with the requirement forsubstantial equality of population in legislative districts .Of course , [HN3]pursuant to the Supremacy Clause inArt . VI of the United States Constitution , any provisionsof § 200 that con flict with the Fourteenth Amendment tothe United States Constitution would not be enforceable .Such a result was reach ed in Sims v. Amos, 336 F . Suoo.924 [**4] (M . D . Ala . ) , affd, 409 U.S . 942, 34 L. Ed. 2d2 15 , 93 S . Ct. 290 (1972) , in wh i ch the three-judge panelheld :

[ *1 60] " In approving the crossing of county lines , weneces s arily £a i l to give effect to that part of Art . IX200, Alabama Const itution of 1901, which forbids split-ting any county between two or more legislative districts.We find that th e requirements of equal protection neces-s itate , in some instan ce s , that county lines give way indrawing leg islative districts . To the extent that Section200 forb i ds such, it must yield for 'when there is an un-avoidable con fl ict between the Federal and a State Con-stitution, the Supremacy Clause of course controls . "'

336 F. Supp . at 939 n . 20 (quoting Revnolds v . Sims, 377U.S . at S84) .

11. Procedural History

On August 9 , 2001 , the Rice plaintiffs fil e d theircomplainCin the Montgome ry Circuit Cou rt, seek ingdecl aratory and injunctive relief. The Rice plaintiffsnamed Bi ll English, probate j udge of Lee County , and 13o th e r prob a te j udge s, as well as S e cretary of State JamesBennett, each in h is o r he r official capacity, as d efen-

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dants (here i na fter c o ll ec tiv ely referred to as the [ * *SJe l e ctio n offiei al s"). The Rice pl a inti ffs cont ended that thenew senate di stri cts fail e d to s ati s fy Art. 1, § 3 3 , ' andArt IX , § 200 , Ala . Con st. 1901 , in th at th e popu lati on o fthe new districts was not "as nearly equal to each other ...as may be." Art. IX , § 200 . The Rice plaintiffs sought ajudgment declarin g that the new pl an violates s tate lawand injunctive reli ef that would , among other thin gs,prohibit the use of the new di s tricts in any elect i on .

I Although the Rice plaint iffs state d in theircomplaint that the red istr icting plan failed to sat-isfy Art . T , � 33, Ala. Const . 190 1, they do notmake any argument in this appeal concerning §33 .

The election officials answered the complaint andmoved to stay fu rther proceedings pending preclearanceof the plan by federal officials. When the State received aletter from the United States Department of Justice stat-ing that the Attorney General of the United States inter-posed no objection to the plan , the State advi s ed the trialcou rt that the plan [ * *6 ] had been precl eared by fi ling acopy of the letter w ith the cou rt.

While preclearance of the redistrict ing plan waspending, Governor Siegelman moved to intervene as adefendant ; the trial court granted hi s motion . After theState obtained preclearance, Senators Lowell Barron andHenry Sanders also moved to intervene as defendants.The tr ial court granted that motion on January 10 , 2002 .

On November 19 , 2001 , the trial court entered ascheduling order , pursuant to which the part ies were tofi le an y dispositive motions by December 19 , 2 001 , andwere to argue those motions at a hearing to be held onJanuary 10, 2002 . On December 19 , 2001, Secretary ofState Bennett, for himself and the other election officials ,filed a motion for a summary judgment , together with asupport ing brief and a narrative summary of the undis-puted material facts . Governor Siegelman jo ined in theelection offi cial s' motion . Even though their motion tointervene had not been ruled on , S enators Barron andSanders , on December 1 9 , 2001 , also moved for a sum-mary judgment in their favor. On January 10 , 2002 , thetrial cou rt heard oral argument on th e election officials'summary-judgment mot i on . At the time [* * 7] of thehearing, the Rice plaintiffs had not filed any written re-sponse to any of the summary -judgment motions . Theydid not file any re spons e until January 17 , 2 002 , whenthey filed what they e nti tled "Rice Plaintiffs' Re spons eand Objection to [* 1 61] Motions for Summary Judg-ment by Oth er P art ies; o r , Alte rnatively , Respon s e andOppo si tion to M otion by interve n o rs Barron and Sandersfo r Summ ary Judgment."

On January 28, 2002 , the trial cou rt entered two or-d ers . In the fi rst order , it held that the state-law claimsbefore it were jusYic i able . In the second, i t (1) granted theelection officials' motion for a summary judgment , inwhich it noted that Senators Barron and Sanders hadorall y joined in the motion to the extent that it address edthe merits of the Rice plaintiffs' claims (as opposed to thejusticiabili ty of those claims) ; (2) stated that the sum-mary-judgment motion filed by Senators Barron andSanders was not before the cou rt on January 9, 2002, andwould not be considered; and (3) held that the Riceplaintiffs' response was not timely filed and would not beconsidered . On February 11, 2002 , the Rice plaintiffsfiled a notice of appeal .

The trial court's findings in its [* * 8] summary-judgmentorder can be summarized as follows :

(1) In adopting Art . IX, § 200 , the drafters of the Ala-bama Constitution of 1901 did not require senate districtsto be abs olutely equal in population and, in fact, en -dorsed overall population deviations in excess of 202%for senate districts ;

(2) Apportionment is primarily a legislative function;cou rts should act only if the Legislature fail s to act con-stitutionally after having had a reasonable opportunity todo so . Brooks v. Hobbie 631 So. 2d 883 , 890 (Ala .1993);

(3) The Legislature has itself adopted a 10% variancerule in its guidelines for reapport ionment;

(4) Other states also apply a 10% variance rule ;

(5) A federal distr i ct court in Alabama has already ruledthat § 200 does not require greater equality in populationin legislative districts than does federal law, and federallaw generally permits deviations not exceeding 10% .Sims v. Amos, supra; and

(6) The pla in meaning of § 200 itself does not requireabsolute population equality; instead , it requires the dis-tricts to be "as nearly equal as .. . may be . ,,

III. Jurisdiction

The election officials [ * *9] argue that the separation-of-powers doctrine enshrined in & 43 , Ala . Const. 1901 ,requires that this Court decline jurisdiction over thiscas e . The election officials remind us that in earlier cas esthis Court has refus ed to recogni ze the justiciability ofredi strictin g claims , citin g Waid v. Pool, 255 Ala. 441,51 So . 2d 869 (19 51 ) , and Ex parae Rice, 273 Ala . 71 2,14 3 So . 2d 84 8 ( 1 962 ) . Th e e l e ction o ffic i als attempt todi s tin g ui s h Brooks v Hobb ie , s unra , in wh i ch , they ar-

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gue , thi s Court recognized the justiciability of redi s trict -ing cla i ms onl y in those cas e s where theZe gislature haswholly failed to act . The election official s support theircontention with a quote from an opinion of the SupremeCou rt of Tenne s se e , quoted i n Brooks v . Hobbie, observ-in g that [I-IN4] " ' c ou rts should act only if the legislaturefa i ls to act cons titut i onally after having had a reasonableopportun ity to do so ."' 631 So. 2d at 888 (quotingLockert v Crowell . 631 S . W2d 702 , 706 (Tenn. 1982 )) .Howe ver, th e quoted text from Lockert refers to the fail-ure to act "constitutionally" - - not a failure to act at all .Id. We [* * 10] decline to read this Couit's statement inBrooks v . Hobble that "in the event the legislature fails toact, the responsibility shifts to the state judiciary" as lim-iting this Court' s jurisdiction to only those instance s inwhich the Legislature has failed to act at all. Brooks. 631So . 2d at 890 .

[ * 162] In Brooks v . Hobbie, this Court distinguishedWaid and Rice, not i ng that [HN51 the Court's di s inclina-tion to act in the earlier cases was based upon a judiciallyimposed prudential limitation on the Court's authority insen sitive area s involving redistricting, rather than uponany provision of the State constitution limiting the powerof court s to ente rtain the action . Brooks , 631 So. 2d at885 . The election officials dismiss this basis for distinc-tion as unconvincing; they suggest that "there is consid -erable tension between Brooks and Waid v. Pool." Wedecline this veiled invitation to overrule Brooks v . Hob-bie, mindful of the necessity for great deference to begiven to legi s l ative enactments when those enactmentsare challenged on constitutional grounds, as we discussmore fully below .'

2 Judicial review of the constitutionality of theredi strictin g plan cannot be said to have been be-yond the contemplation of the Legislature .[HN6]The redistricting plan established theMontgomery Circuit Court as the proper venuefor challenges to the redistricting plan . See § 4 ofAct No . 200 ] -727 .

[ * "1 l ] Just ice Houston's special concurrence states thatBrooks v. Hobble confused this Court's responsibilityunder federal law with "our responsibility under Statelaw, where our jurisdiction is restricted by the separa-tion-of-powers provision in the Alabama Constitution."631 So . 2d at 884 n . . It then concludes that "it is forthe Leg i s lature , not the judiciary, to determine whetherth e se senatorial di stricts are as 'nearly equal to each otherin th e number of inhabitant s as may be , "' citing Art . III , §43 Ala. Const. 1901 (the separ ation -of-powers claus e) .Id Such [HN7] abd i c at i o n of judic ia l responsibility i sinconsistent with th e sett l e d prin ci pl e that the peopl ehav e forb i dd e n th e Leg i s lature from conducting its e lf in

a manner incons istent with their constitut io n and when itdoes , it i s incumbent upon the judiciary to nullify a]eg is-lative enactment contrary to the constitution . S ee Exparte Selma & Gu1fR. R., 45 Ala . 696 (18 7 1) .

However , in Ex parte Selma & Gu[f X. R . , this Court,[HN8]while recognizing th e Court' s power to exercisejudicial review of acts of the Legislature, was also mind -fut of the need for restraint . This Cou rt [**12] therestated:

"No power of this grave nature [i .e ., judicial reviewof legislative acts] is expressly given . Considering itsimportance , it is a little strange that it has been whollyomitted. But, grant that it exists . It can not be permittedto rest upon mere inference and argument ; because, if theinference is a mistake, or the argument is false , its exer-cise is an usurpation by one branch of the govern mentagainst the authority of another . Did th e people mean togrant such a power, unless s ome express claus e of theconstitution was clearly disregarded? I think not. " 45Ala . at 728 (emphasis added) .

Th i s discussion of the doctrine of judicial review isremarkably parallel to the obs ervations of Judge Learn edHand, speaking of the United States Constitution, almost80 years later. Judge Hand stated :

"There was nothing in the United States Constitutionthat gave courts any authority to review the decisions ofCongress ; and it was a plausible - - indeed to my mind anunanswerable -- argument that it invaded the 'Separationof Powers' which, a s so many then believed, was thecondition of all free government . "

Learned Hand , The Bill of Rights : [ ** 13] TheOliver Wendell Holmes Lectures , 1958, 10-I I(HarvardUniversity Press 1958) . However , Judge Hand justifiedthe propriety ofjudicial review as follows :

[*163] "For centuries it has been an accepted canonin interpretation of document s to i nterpolate into the textsuch provisions , though not expressed, as are essential toprevent the defeat of the venture at hand; and this applieswith especial force to the interpretation of constitutions,which, since they are designed to cover a great multitudeof necessarily unforeseen occasions, must be cast in gen -era l language , unless they are constantly amended . If so ,it was altogether in keeping with established practice forthe Supreme Court to assume an authority to keep thestates , Congress , and the President within their pre-scribed powers . Otherwise the govern ment could notproceed as planned; and indeed would almost c ertainlyhave foundered , as in fact it alm os t did over that veryi ss ue .

" Howeve r , [HN9]since th is powe r i s not a logicald eduction from the structure of th e Constitution but only

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a practical condition upon its s uccessful operation , itn eed not be exercised whenever a court sees, or th inksthat is sees, an invasion of [* * 14] the Constitution."

Id. at 1 4 - 15 ( emphasis added) . Judg e Hand later de -scr i bed the power of judicial review as "no doubt a dan -gerous l iberty , not li ghtly to be resorte d to ...." Id. at 2 9 .

When Ex part e Selma & Gulf R. R. was wri tten , as eparation-of-powers clause appeared in Art icle III of theConstitution of 1868 . The same text had appeared inevery version of the Constitution s i nce statehood in1819. Article III of the Constitution of 1868 was copiedword-for-word into Article III of the Constitution of1875. The text was slightly modified in Art icle III , § 43 ,of the Constitution of 190 1 . However, William C . Oates ,a delegate to the Constitut i onal Convention of 1901 ,comparing the differences between the Constitutio n of1 875 and the Constitution of 1901, stated, "The distribu -tion of powers of government is substantially the same asin the old or present [1875] Constitution." 4 Officiad Pro-ceedings of th e Constitutional Convention of 1901 , p .4948 . We conclude that [HN10]the authority of thisCourt to review challenges to acts of the Legislature onconstitutional grounds is a bedrock principle of ourState's legal heritage .

IV. Standard ofReview

In [ ** IS] Monroe v. Flarco Inc., 762 So. 2d 828, 831(Ala . 2000) , this Court restated the long - standing rulesgovern ing review of acts of the Legislature under consti-tutional attack:

[HNIl]"'In reviewing [a question regarding] the consti-tutionality of a statute, we "approach the question withevery presumption and intendment in favor of its valid-ity , and seek to sustain rather than strike down the en-actment of a coordinate branch of the govemment . " 'Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156 , 159(Ala. 1991) (quoting Alabama State Fed'n of Labor v.McAdorv. 246 Ala. 1 , 9, 18 So. 2d 810 , 815 (1944)) .Moreover , ' where the validity of a statute i s assailed andthere are two possible interpretatio n s , by one of whichthe statute would be unconstitutional and by the otherwould be valid , the courts should adopt the construction[that] would uphold iC . ' McAdory, 246 Ala. at 10, 18 So .2d at 815 . In McAdory, this Cou rt further stated :

[HNI2]'"In pas s ing upon the constitutionality of a]egis-lative act , the cou rts uniformly approach the questionwith every presumption and intendment in favor of itsvalidity, and s eek Co sustain [ ** 16] rather than strikedown the enactment of a coord i nate b ranch of the gov -ernmen t. All thes e p r i nciple s are embrac ed in th e s impl estatement that it i s the recognized duty of th e court to

sustain the act unless it is clear [M1641 beyond reason-able doubt that it is violative of the fundamental law.'

" 246 Ala. at 9, 18 So 2 d at 81 5 (citation omitted).[HN1 3 ]We must afford the Legisl ature the highest de -gre e o f deference , and construe its acts as constitutionalif thei r l an guage so perm its . ld."

V. Analysis

By the redistricting pl an, the Legi s lature es tablished35 senate districts for the State . The Senate, according tothe redistricting plan , is to be composed of 35 members,each representing a district whose total population iswithin plus or minus five percent of the ideal populationof a senate district. In creating those districts , the Legis-lature split 30 of the State's 67 counties . While the Riceplaintiffs rely on § 200, they concede, as they must, that ,notwithstanding the clear prohibition of § 200, disregardof county lines is necessary to accommodate enforce-ment of the United States Constitution .

The Rice plaintiffs base a signific an t port ion of their[ ** 1 7] appellate argument on the contention that split-ti ng counties must be held to the absolute minimum andthat the Legislature's attempt in the redis tr icting plan tosatisfy the requirements of population equality at theexpense of preserving county lines exceeds the absoluteminimum . The trial court's order conspicuously fails toaddress this contention; however, that omission is not anovers i ghT .

The Rice plaintiffs contended in the trial court th atthe redistricting act vi olated § 200 in that the act disre-garded the requirement of the Alabama Constitution thatsenate districts must have equal populations . The Riceplaintiffs' complaint stated :

" 32 . In order to achieve required population equali tyamong Alabama's thi rty-five (35) state senate districts , asproscribed by Ala . Const. art. IX. § 2 00 , the populationof each state Senate district should be 127,060 person swith each senate district 'as nearly equal to each other inthe number of inhabitants as may be. ' See Ala. Const . art .IX, § 200 .

" 33 . Pursuant to Act No . 2001-727 , Alabama's mostpopulous state senate district, Senate Distr i ct 8, has133 , 302 persons. Accordingly, Senate District 8 exceedsthe constitutionally [**18] required population by 6 ,242persons, or 4.91%. Alabama's least populous state senatedistrict , Senate District 6 , has 120 ,942 persons . Accord-ingly , Senate District 6£alls short of the constituti onallyrequired population by 6 , 118 person s, or - 4 . 82%. Thediffe rence between the populations of the most populousand the l eas t populou s s tate senate districts in Act No .2001 -727 is 12 ,360 person s, which constitutes a 'relativeoverall range ' of 9 . 73% . "

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8 35 So . 2 d 157 , *; 2002 Ala. LEXIS 29 1 , **

(Footnotes omitted.) Nowhere i n the complaint doth e Rice plainti ffs cha llenge the degre e to which countyl ines were disregarded. Likewis e , in the summary-judgment hearin g he l d by the tri a l c ou rt o n January 10 ,2002 , the Rice plaintiffs argued :

"MR . MONTIEL [c ounse l for the Rice plaintiffs] :The first argument that the State makes , which is joinedapparently by intervenors Ban on and Sanders, is thatSection 200 does not mean what we contend it i s ; that is ,that the districts be as nearly as equal in the inhabitant sas may be.

"A rt icle 1 , Section 2 [of the Un ited States Constitu-tion] deals with congressional districts . Federal courtsare crystal clear , and the caselaw is undisputed in thiscountry . The congressional [ W* 19J distri cts , because ofthat language in [ * 165] the Federal Constitution , haveto be drawn as nearly as equal , and I will submit to YourHonor that most states draw on to zero deviation; i . e . ,equal population .

"THE COURT : But not all of them?

"MR . MONTIEL : Occasionally a very , very small ,de minimis , and the court s have said that these ranges ,this , plus or minus 5 percent wouldn't be de minimis.There's no case -- its going to be like .017 percent, verysmall. It's where they may not be splitting a precinct andleave a few hundred people in the district. Might be con-stitutional or perm i ssible under Art icle 1, Section 2 forthe Constitut ion in congressional districts.

"THE COURT : The drafters of this 1901 provision ,if they wanted equal , all they had to say was equal --draw them equal. Why would they modify that by sayingnearly equal?

"MR. MONTIEL : Well, I think at that time -- and Ithink that's why the cou rt has to look at the developmentof technology. They wrote , 'shall be' -- it's mandatory --'shall be as nearly equal to each other in number of in-habitants as may be.' And we believe that requires thecourt to analyze whether or not the State of Alabama --

"THE [**20] COURT: If I were drafting this statuteand I wanted -- and my intention was for the districts tobe equal, I would have wri tt en, 'they shall be equal . '

"MR . MONTIEL : And we submit that's what it says ._ It says 'shall be as nearly as equal.' And as nearly asequal in inhabitants as may be in 2001 is zero deviat i on .And for purposes of the record , every district shouldhave an equal number of inhabitants.

"THE COURT : Doesn ' t [ th e phrase' a s may b e' ] allow forsome movem ent there , some -- I mean, do es n ' t it conjureup the notion that somebody real ized that these thin gscouldn't be mathematically certain?

"MR . MONTIEL : Judge , ... the an swer to that i s, if y ouare not spli tt in g counties --

"THE COURT : Uh-huh .

"MR . MONTIEL : And that's another part of Section 200you 're going to read. . .. You cannot use splitting countiesas an excuse to violate equal population requirementsunder federal law . That's what the federal courts havedetermined in Reynolds v. Sims [377 U . S. 533 , 12 L. Ed.2d 506, 84 S . Ct. 1362 (196411 . And what the federalcou rt did in Reynolds v . Sims i s [it] determined that cer-tain provisions of Section 200 are [ *" 21] unconstitu-tional , but -- and there 's caselaw, plenty of caselaw atthis point, Judge. . . . [The federal court] specifies that allprovisions of Section 200 .. . that don't violate federallaw , should continue in existence , and certainly as-near ly - as- equal - Sn-inhabitants language doesn't violatefederal law . I mean , that's saying if it's zero deviat i on,that violates no one . "

The only reference to splitting counties in the argu -ment before the trial court dur ing the hearing on thesummary-judgment mot ion occurs in the context of rec-ognizing the ineffectiveness of that port ion of § 200 con -demning the spl itt ing of counties when it stand s in theway of the requirement of population equality in the leg-islative districts .

The Rice plaintiffs did not submit any written oppo-s ition to the summary-judgment motion , either before orat the hearing . At the conclusion of the hearing, the trialcourt gave the Rice plaintiffs permission to file addi-tional materials [ * 166 ] in response to the motion for asummary judgment filed by intervenors Senators Sandersand Barron, which was not before the court at the time ofthe hearing on the election officials' summary-judgmentmotion . One week after the [**22] hearin g, the Riceplaintiffs submitted materials, including affidavits , whichthey styled as a response to the motion for summaryjudgment filed by the election officials or, alternatively,a response to the motion for summary judgment filed byintervenors Senators Sanders and Barron. In its orderentered 11 days later, the trial court stated that it did not"reach the Motion for Summary Judgment filed by De-fendant Intervenors Ba rron and Sanders . " With respect tothe Rice plaintiffs ' response filed afte r the hear i n g, th etrial cou rt stated that it did not consid er th at responsebecau se it was untimely . [HN 14]Abse nt an abuse of dis -c ret ion , a trial co urt d o e s not err in strikin g as untimelyaffidav i t s i n o ppo s iti o n to a mo ti on for s umm ary jud g-

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835 S o. 2 d 157, " ; 2 002 Ala . LEXIS 2 91 , '` "

ment . Murray v. Timberlake, 564 So 2d 885 , 889 (Ala .1990) ; Nolen v. Peterson, 544 So. 2d 863 (Ala . 1989) ;Johnson v. Allstate Ins. Co., 505 So. 2 d 362 (Ala. 1987) .To the extent that thi s contention i s ra ise d in th e re spon sefi led after th e h earing on the e lection o ffi cials' motion forsummary judgment , we hold that the trial cou rt did notabuse its discretion in rejectin g it as untimely. Indeed ,the ( **23] Ric e plaintiffs do not contend otherwise, stat-ing in the ir reply brief, "County splitting was not consid -ered at all by the trial court, as admitted by each of theAppellees in their respective briefs . " Reply Brief at pp .2 - 3 .

The Rice plaintiffs , therefore , contend for the first t imeon appeal that the redistricting act unnecessarily and ex-cessively splits county lines in creating the State senatedistricts . Recently , in Porter v . Colonial Life & AccidentInsurance Co., [Ms. 1991600 , January 11 , 2002] 2002Aia. LEXIS 9(Ala . 20021, we restated the long-standinggeneral rule that [HN15]"the appellate cou rts will notconsider a challenge Co an order or a judgment of a trialcourt asserted for the first time on appeal." This Courthas often applied that general rule in the speci fic contextof attempts to overturn a trial court's summary judgment .See Ex parte Rya1s , 773 So. 2d 1011 (Ala . 20001 , wherethis Court stated , " The appellate cou rt can consider anargument against the validi ty of a summary judgmentonly to the extent that the record on appeal contains ma-terial from the trial cou rt record presenting that argu-ment to th e trial co urt [ ** 24] before or at the time ofsubm i ssion of the motion for summary judgment . " 773So . 2d at 1 013 (citing Andrews v. Merritt Oil C.o 612So . 2d 409 (Ala. 1992)) (second emphasis added) . Seealso Ex parte Elba Gen . Hosp . & Nursing Home, Inc .,[Ms. 1000770, September 14, 2001] 2001 Ala. LEXIS344 (Ala . 2001) , where this Court, after stating the gen-eral rule , observed :

"Put another way, [HN16]on an appeal from a summaryjudgment, this Court cannot hold the trial court in erroron the basis of arguments made for the first time on ap-peal. See Barnett v. Funding Plus ofAmerica Inc., 740So. 2d 1069 (Ala. 1999); West Town Plaza Assocs., Ltdv. Wal-MartStores Inc., 619 So. 2d 1290 (Ata. 1993)."

The Rice plaintiffs seek to avoid this result by contend -ing that § 200 requires , in addition Co an evaluation of thepopulation -equality requirement , an analysis of spl i tcounties . The Rice plaintiffs, however , cite no authori tyfor setting aside the general rule requirin g pres entation ofissues in the trial court a s a predicate for appe llate reviewin c i v i l cases. [AN17 ]The " plain-error " rule , whi ch di s-p enses [ **2 5 ] wi th the necess ity fo r error preservation ,i s confined to death-p en a lty ca ses. The Rice p la in ti ffs 'e ffo rts to u rge fo r the firs t t i m e on appeal excess iv e di s-

regard of county l in es [" 16 7 ) in creat in g the senate dis-tric t s as a b as i s upon wh i ch to rev erse the tr i a l cou rt i stherefore no t b efore us .

The Ri ce plainti ffs also contend that the trial courterroneously applied the standard for equal protectionunder th e Fou rte enth Amendment to the United StatesConstitution , rather than the standard under § 200 . Wedisagre e. Th e trial court' s references to standards derivedin adherence to th e Eq ual Protection Clause of the Four-teenth Amendment to the United States Constitution arepresented as illustrations or analogies and are not giventhe force of precedent . The trial cou rt recognized theadopt ion of guidelines by the Legislature ' that embracean overall percentage deviation of 10 percent, w ith whichthe redistrictin g plan complies. The trial court also tookaccount of relevant historical context when it cited factsindicating that the framers of the Alabama Constitutionof 1901 had a remarkably high tolerance for deviations inpopulation between s enate districts . [HN18 ] While it istrue that [ *" 26 ] the leg islative districts created at thetime of ratification of the Constitution of 1901 were notgoverned by § 20 0, which did not come into operationuntil the next decennial census , we cons true constitu-tional and statutory provi sions in l ight of the circum-stances and conditions prevalent at the tim e of enact-ment .

3 Reapportionment Committee guidel i n es forLegislative , State Board of Education , and Con-gressional Redistricting.

[HN19]"IC is a familiar can on of statutory constructionthat 'where there is doubt as to the meaning and intent ofa statute by reason of the language employed, or ari singfrom the context, courts may look Co the history, condi -tions which lead to that enactment, the material sur-rounding circumstances , the ends to be accomplished,and evils Co be avoided or corrected, in order that thelegislative intent be ascert a i ned and given effect, if po s-s iUle . " '

Eagerton v Graves , 252 Ala 326, 331-32 , 40 So . 2d417, 422 (1949) (quoting Henry v. McCormack Bros .Motor Car Co., 232 Ala. 196 198 167 So. 256, 257,1936 . [ **27 ] See also State Farm Fir e & Cas . Co. v .

Lambert, 291 Ala. 645, 648 285 So . 2 d 917. 918 (1973)( "This question [of statuto ry construction] cannot be an -swered apart from the historical context within which thestatute was passed . ") . The tr ial court did not inappropri-ately adhere to principles applic abl e only to proceedingsgoverned by th e Equal Protecti on Clau s e of the Four-te enth Amendment to the United St ates Constitution toth e e xcl u s i on o f prin ci ple s of Alabam a l aw app l ic able tothe cons tr u ct io n of § 2 00 .

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83 5 So. 2d 157, *; 20 02 Al a. LEXIS 291 , **

The Rice pla i ntiffs al s o contend that the tr ial c ourtfailed to con si d er the obv i ou s ly racially di scr i minatorypattern of population assignments" in the re di strictingpl an . Y et the Rice plaintiffs state d in th e tr ial court, "Wedon't make any allegations of rac e in thi s case. "

VI. Conclus ion

The tr ial court afforded the Leg i s lature appropriatedeference in its s olution to the difficult question of divid-ing the State into 35 senate dis tricts with approximatelyequal population. The districts created by the Legislatureare with i n plu s or minus fi ve percent of the ideal popula-tion of a senate distr ict. While various members of thisCourt , had we been [ * *28] privileged to participate inthe leg islative deliberations and then to cast votes ac-cordin g to our respective conscience s, might have optedfor different district boundaries , less disregard of coun tylines, or greater concern for more uniformity of [ * 168]population with in districts , we recognize that the peopleelected us to cast our votes as judges and not as legisla -tors . As judges, we cannot overturn the redistricting planon the grounds asserted by the Rice plaintiffs in the ap-peal before us . The Rice plaintiffs have failed Co over-come the presumption of constitutionality that precedentrequires u s to attach to the redistricting plan. In so hold-ing, we adhere to the admonition of this Court in Exparte Selma & Gulf R. R. that we should re frain fromexercising the power of judicial review , described as oneof "grave nature," "unless some express clause of theconstitution was clearly disregarded. " 45 Ala . at 728( emphasis added). We therefore decline Co invoke whatJudge Hand described as "no doubt a dangerous liberty,not lightly to be resorted to" (L. Hand, id at 29) so as tore quire further proceedings on whether a deviation inpopulation of plus or minus five [* *29] percent violatesthe constitutional mandate of § 200 that "di stricts shallbe as nearly equal to each other in the number of inhabi-tants as may be . "

The Leg i s lature did its duty . ( °It shall be the duty ofthe legislature ... after each .., decennial census, to fi x bylaw the number o f sen ators, and to d i vide the state into asmany senator ia l districts as th ere a re senators ...." Art .IX, 200 Constitution of Alabama of 1901 . ) The Con-stitutional Convention of 1901 unequivocally definedwhat it meant wh en it provided in the Constitution th atthe Legi s l ature shall do something. The Legislature isrequired to do the act the Constitution provides it shalldo . "They [the Legislature] would violate their oaths ifth ey d i d not do so . " OfJicia d Proceedings of th e Constitu-tional Convention of 1901 , p . ["*30] 1800 .

The Legislature has done its constitutional duty ; indoing so, it has in no way violated an express constitu-tional prohibition, such as encroaching on the rights re-tained in the Declaration of Rights of the Alabama Con-stitution (Art. I, §§ I through 36) . There is no Equal Pro-tection Clause in the Alabama Constitution. See Ex parteMelo , 553 So . 2d 554 (Ala. 1989) . Under State law,which is all that is involved here, ' it is for the Legisla-ture, not the judiciary , to determine whether these sena-torial districts are as "nearly equal to each other in thenumber of inhabitants a s may be," because § 43 of the190 1 Constitution provides : "the judicial [department ofgovernment] shall never exercise the leg islati ve or ex-ecutive powers , or either of them; to the end that it maybe a government of laws and not of men."

4 The effect of Brooks v. Hobbie 631 So. 2d883 (Ala. 1993) , is to confuse our responsibilityunder federal law, where our jurisdiction is ex-panded by the Supremacy Clause in the UnitedState s Con stitut i on , with our responsibility underState law, where our jurisdiction is restricted bythe separation-of-powers provision i n the Ala-bama Constitution.

[ ** 31]

The trial cou rt properly entered a summary judg-ment in favor of the election offic i als, as jo ined in by thei ntervenors ; we affirm that judgment .

AFFIRMED .

Brown , Johnstone , Harwood , Woodall , and Stuart,JJ., concur .

Houston , J., concurs specially .

Moore, C . J ., and See , J ., diss ent .

CONCUR BY: HOUSTON

CONCUR

HOUSTON , J us t ice (concurr i n g s pec i al l y) .

DISSENT BY: MOORE; SE E

DISSENT

MOORE , Ch ief Justice (dis senting) .

I stron gly di s agree with th is Court's affirmance ofthe summary judgment in this important case .

The standard of review for a summary judgment iswell-settled.

[ *169] " We review a summary judgment de novo .... A summ ary j udgment is proper where ' the pleadings ,d epo s iti on s, an s wers to interrogatories, and admiss ionson file , to ge the r with affi d a vi ts, if any , show that there i sn o genuin e i ss u e as to a ny mater i a l fact and that the mov-ing party i s e nti t le d t o a judgm e n t as a matter o f law .'

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Rule 56(c)(3 ) , Ala. R. Civ . P . ... [A] par ty moving for asummary judgment alway s b e ars th e init i al burden ofinforming the tri a l cou rt of the bas i s for its motion andi d ent ify ing those po rtio ns of th e record that i t argu esdemonstrate the ab s ence of a genuine iss u e of materialfact ."

Northwest Florida Truss, Inc. v Ba ldwin CounNCommission, 782 So. 2d 274 , 2 7 6 (Ala . 2 000) .

The defendants presented only three p i ec e s of e vi -dence to support their argument for a summary judg -ment: (1) the October 15 , 2001 , letter from the UnitedStates Department of Justice indicating that Act No .2001-727 , Ala . Acts 2001 , [**32] had re ce ived pre-clearance under § 5 of the Voting Rights Act; (2) 1903records of the State of Alabama Department of Archivesand History, showing the population of Alabama coun-ties from 1800 to 1900 ; and (3) an affidavit of Ms . Bon-nie P . Shanholtzer , authenticating the reappo rtionmentcommittee guideline s for the leg islative, state board ofeducation, and Congressional redistricting for the Stateof Alabama .

These submissions lack any relevance to the ques-tion before us in this case , which is whether Act No .2001 -727 violates A rt . IX, § 200, Ala. Const . of 1901 .Preclearance from the United States Justice Departmentdemonstrates that the plan is p robably constitutional un -der the Voting Rights Act of 1964 prohibiting racial dis -crimination , but here , where no racial discrimination isalleged , preclearance does not help u s in evaluatin g thestate constitutional claims under Art. IX , § 200 .

The population record s from 1903 were submi tt edostensibly to demonstrate that th e State permitted widedeviations i n the populations of di s t ri cts at the time ofthe adoption of Art . IX , § 200, However, population de-viations before the effective date of the 1901 Constitu-tion are simply [ * "33] irrelevant . First, the lan guage ofA rt. IX , § 200 stipulate s that that section is to be appliedafter each decennial census; thus , it first applied to redis -tricting in 1910 . Second , in Reynolds v . Sims, 377 U.S .533 , 569, 12 L . Ed . 2d 506 , 84 S . Ct . 1362 (1964), theUnited States Supreme Court later confirmed the fi ndingof a lower court that th e Alabama Legislature had notadhered to federal or state constitutional guidelines re-garding appo rtionment for over 60 years and orderedreapportionment according to its "one-man, one-vote"analysis. At the time Reynolds v. Sims was decided, theState had not reapportioned its districts s ince 1901 ;therefore , in 1903 the districts had never been appor-tioned "as nearly equa l to e ach other in the number ofinhabitants as may be," A rt. IX , § 200 . See Sims v. Friiz h ,208 F . Supp . 431 , 435 (M .D . Ala . ]9 62)_ (three-jud gepanel). Indeed , ex istin g po pula t i o n deviations from 1 90 3until 1 9 6 4 were th e very reason the Un ite d Sta tes Su-

preme Court found Alabama's legislative scheme to be i nv i olation of the "one-man, one-vote " rule propounded inReynolds .

Nevertheles s, the trial court cite d the population[**34] deviatio n of di stricts at the t ime of the adoptionof Art . IX, § 200 , as its main evidence in support of itsholding that Art. IX , § 200 , doe s n ot re quire strict popu-lat i on equality among senate districts . Stated alterna-tively, the trial court us ed a population - deviation schemethat violated the federal constitution to demonstrate thatthe present scheme does not violate [*170] the Stateconstitution. This conclusion is clearly contrary to th erules of constitutional interpretation : A state " 'may , infact, provide more protection for private rights than theUnited States Constitution requires; " but it cannot pro-vide less. Brooks v. Hobbie, 631 So. 2d 883, 889 (Ala .1993), quoting Moore v. Mobile Infirmarv Ass'n , 592 So.2d 156, 170 (Ala. 1991).

Finally, the reapportionment committee guidelinesmerely show what the Legislature feels to be the criteriathat must be met to satisfy federal and state constitutionalstandards in executing a redistricting plan. The guide-lines stipulate that "the relative population deviation forany legislative .. . district should not exceed plus or minusfive percent (+-5%) , " but this rule exists expressly toensure "that [" * 35] the overall deviation in the plan"meets the "pennissible overall dev iation" according to"federal judicial decisions . " Reapportionment CommitteeGuidedenesfor Legislativ e, State Board ofEducation, andCongressional Redistricting, II . I .b . (emphasis added) .This ru le does not address whether the requirements ofArt, IX, § 200, have been met. Moreover, whether a leg-islative scheme has met federal or state constitutionalrequirements is not up to the Legislature if the scheme ischallenged in cou rt , because the court , not the legislature,must interpret constitutional requirements .

Furthermore , a review of the guidelines shows thatits stipulations were not fo ll owed in structuring this re-districting plan . The guidelines speci fically state that" proponents of Legislative and State Board of Educationreapportionment plans should establish as a high priorityminimizing population deviati ons among districts . "Guidelines, II . l.b . The plus-or-minus-five-per cent rangeis intended as a last resort, not a goal , when designing aredistricting plan. The guidelines require that any devia-tions in population contained in a proposed plan must bej usti fi ed in a written "detailed [ ** 36] explanation" thatshows how the deviations "furt her[ ] rational state poli-cies." II.I . c. Maintainin g county boundaries is not onlylisted as one of tho se "rational state policies , " but is alsoa s tate constitutional re qui rement under Art. IX , § 200 .See Guidelin es, IV . 7 .b. In oth e r word s, acco rd ing to theguid e lines , the Legislature mus t s tr ive to ach i eve max i-mum equa lity i n di s tr i c t popula t i on s while maintaining

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83 5 So . 2d 157, '; 2002 Ala . LEXIS 291 , **

county boundar i es. If there are d e viation s, a detail edwritten exp lanati on should be submitted of how thosedeviations fu rther s tate policies, yet no explanation wasgiven to th e tria l c ou rt here, even though the de vi ationsunder th e re di strictin g plan clearly disregarded the goalof maintaining county boundaries .

None of the evid ence submitted by the defendantsaddre s s es the State constitutional question at issue andsome o f the ev id ence even shows a clear v i olation of theleg islature's own reapportionment guidelines . Neverthe-less , the trial court cited all of these submissions as un-di sputed facts in support for granting the defendants'motions for a summary judgment . This misapplication,alone, of the evidence to the issue of state constitutional-ity merits reversing [* * 37 ] the summary judgment inthi s case .

But even if the defendants had met their initial bur-den , the arguments and evidence presented by the Riceplaintiffs constitute substantial evidence creating a genu-i ne issue of material fact . Once the moving party makesan initial showing in favor of a summary judgment, theburden shifts to the nonmoving party to present substan -tial evid ence creating a genuine issue of material fact inorder to avo i d a summary judgment. Substantial evi-dence i s " evidence of such weight and qual ity that fair-minded persons in the exercise of impartial judgment[*171] c an reasonably infer the existence of a factsought to be proved . " West v. Founders Life AssuranceCo. ofFlorida, 547 So. 2d 870, 871 (Ala . 1989) ; see alsoEx party Trinity Indus., Inc . , 680 So. 2d 262, 269 (Ala.1996) . Initially , the Rice plaintiffs pointed out, and thedefendants conceded, that this is an issue of first impres -s ion in Alabama . Only three cases have been decidedconstruin g the meaning of the requirements of Art . IX, §200 ; all of those cases are federal district court cases . SeeSims v. Amos, 336 F . Supp . 924 (M.D . Ala. 1972 ) ;Burton v. Hobbie. 543 F. Supp . 235 (M.D. Ala. 1982) ;[ " * 38 ] and Burton v. Hobbie, 561 F. Supp. 1029 (M.D.Ala. 1983). These cases provide conflicting conclusionsas to how much population deviation is permitted by thelanguage " a s nearly equal to each other in the number ofinhabitant s a s may be . " A rt. IX , § 200 . Because there areno controllin g cases on what standard of deviation theAlabama Constitution permits , a plus-and-minus-five-percent deviation under the legislative reapportionmentscheme simply has no legal suppo rt .

Additionally , th e Rice plaintiffs' written response tothe motion for a summary judgment submitted by Sena-tors Barron and Sanders raises s everal genuine is suesregardin g the reapport ionment plan . The trial court curi -ou s ly con s id ered nei th er Senators Barron and Sanders' smot ion for a summary judgment no r th e Rice plaintiffs'response -- ru li n g that both were untimel y. The B arronand Sanders mot io n was fil e d on January 9 , 2002; th e

trial court did not rule on their motion to intervene in theca s e until the January 1 0 hearin g. The summary -judgment motion of those defendants could not evenhave been offici ally fil ed with the court until J anuary 10 ;th erefore , holding that their motion for a summary judg-ment [ ** 39] was untimely makes no sen s e , part icularlywhen the trial court heard argum ents on th e motion fromtheir counsel at the January 10 hearin g.

The motion for a summary judgment filed by Sena-tors Barron and Sanders was filed on January 10 ; theRice plaintiffs filed their re spon se to that motion onJanuary 17, certainly a timely respon se . In fact , the trialjudge told the Rice plaintiffs at the January 10 hearingthat they could file their response by January 24 . Despitethis statement by the tr ial court , the court subsequentlyruled on January 28 that the response was untimely, andthe court did not consider in its decision the argumentsmade in the motion or response or the affidavits submit-ted therewith.

Those affidavits clearly show that the redistrictingplan at issue had not been submitted to the permanentlegis lative commi tt ee on reappo rt ionment , the committeecharged with considering those issues and that the plandid not conform fully with the legislative committeeguidelines. As explained above , those guidelines clearlyprovide that deviations in population require a detailedwri tten explanation justifying the deviations as furtheringrational state goals. The guidelines [* * 40] also state thatredistricting plan s should strive to maintain countyboundaries . ' Although this redistr i cting plan failed in allof these respects , the trial court still found no genuineissues of material fact .

5 I recognize that the practicali ty of meetingfederal requirements , keeping district population"as nearly equal .. . as may be , " and the politicalprocess of the Legislature may impinge on the in-tegrity of county boundaries . But the Legislaturemust strive for as little deviation as possible whendealing with a constitutional requirement .

However, even if we i gnore the Rice plaintiffs' re-sponse to the summary-judgment motion of SenatorsBarron and Sanders , their remaining arguments demon-strate [ * 172] the constitut i onal problem with the redis-tricting plan in this case, i.e ., the plan contains substan -tial deviations in population and disregards countyboundaries . This Court finds that the integrity of countyboundaries is not in issue becau s e th e Rice plaintiffs didnot make the argument at trial ; [ ** 41 ] howev er, I be -lieve their arguments relative to Art. IX, § 2 00 , weresufficient to p l ace the i s sue before u s, b ecau s e the integ-rity of county boundari es i s an integral p art o f § 200 . TheRice p l aintiffs state in th e ir c omp l a int that Act No . 2001 -7 27 violates A rt . IX , & 2 00, of the Al abama Constitution

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835 So. 2 d 157 , M; 2 002 Ala . LFXIS 2 91 , **

of 1901 . Although the Rice plaintiffs stre ss the require -ment that senatorial districts " shall be as n e arly equal toeach other in the number of inhabitants as may be," thecomplaint itself -- c omb ined with the defendants ' sub -mission of the redistricting map - - mandate s that thisCourt consider , and the tr ial court should have cons i d-ered , the fact that the redis tr ict in g plan splits nearly halfof the State's 67 counties, when Art. IX , § 2 00, explicitlys tates that "no county shall be divided between districts

The federal district court for the Middle District ofAlabama ordered a relaxation of the "no-division" provi-sion of Art . IX, § 200, regarding county boundaries , inSims v. Amos. 336 F. Supp. 924, 939 (M.D. Ala . 1972 ),because the "one-person, one-vote" rule instituted by theUnited States Supreme Court has priority over the Staterequirement of maintaining [**42 ] political boundaries.However, in relaxing the standard, the court made it clearthat "the requirements of equal protection necessitate , insome instances, that county lines give way in drawinglegislative districts." 336 F . Sunp . at 939 n . 20 (emphasisadded). Indeed, "boundary lines are sacrifi ced only whereabsolutely necess ary Co satisfy the constitutional re -quirement of one man one vote . " 336 F . Supp . at 939(emphasi s added). Consequently, the "no - division" pro -vision of Art. IX, § 200, cannot be arbitrarily disregardedby the legislature.

The district court in Sims explained that "the justifi-cation most o ften advan ced by the states for permitt ingdeviation from the ideal of one man one vote is the ne -cessity for maintaining the integrity of political subdivi-sions such as counties ." 336 F. Supp. at 933. Indeed , theUnited States Supreme Court observed in Reynolds :

"It may be feasible to use political subdivision linesto a greater extent in establishing state legislati ve dis-tricts than in congressional districting while still afford-ing adequate representation to all parts of the State . .. .Somewhat more flexibility [ **43 ] may therefore be con-stitutionally permissibte with respect to state ]egislativeapportionment than in congressional districting . ...

"A State may legitimately desire to maintain the in-tegrity of various political subdivisions , insofar as possi-ble , and provide for compact districts of contiguous terri-tory in de s igning a legislativ e apportionment scheme . "

carves up nearly half of the counties i n th e State. For th edefendants to justify th e p l an's substantial dev i ations inpopulation by point i ng to the percentage deviations per-mitte d by fed eral courts and then t o ignore th e very re a-son those courts permit those deviations defies log ic .

The few federal district cou rt cases referenced ear-l i er that have examined the [* 1 73] constitutionality oflegislative apport ionment [ ** 44] schemes under Art. IX,§ 200 , be ar out the impo rtance of the interplay betweenthe percentage deviation i n population provided und erthe scheme and the number of counties split by thescheme . Sims v. Amos. 336 F. Supp. 924 (M .D . Ala .1972), Burton v . Hobbie, 543 F. Supo . 235 (M .D. Ala .1282), and Burton v . Hobbie. 561 F . Supp. 1029 (M.D.Ala. 1983), all examine both the percentage of deviationsin population between districts and the number of splitcounties created by the redistricting when evaluating theconstitutionality of a State legislative apportionmentscheme under the Alabama Constitution. There is noreason why we should not do the same, given the man-date of Art. IX, § 200 .

When all of the facts and arguments are considered,it would appear that Act No . 2001-727 probably violatesArt. IX , § 200, but that conclusion is not even necessaryfor a revers al here . All that is required is that the Riceplaintiffs have created a genuine issue of material fact .Given the lack of evidence presented by the defendantsto carry their in itial burden , the lack of precedent on thisissue , the substantial deviations in population permitted[ ** 45] by the plan , the number of counties split by theplan in direct contravention to both Art. IX , § 200 , andthe reapportionment committee guidelines , the trialcourPs failure to consider arguments and affidavits I be-lieve it should have considered , and the logical contra-diction in the defendants' argument, a genuine issue ofmaterial fact clearly exists in this case.

The majority of this Court discusses the proprie ty ofjudicial review an d the Cou rt' s need to practi ce restraintin exercising that power . However, our power and scopeof judicial review is not in issue here, where , as the ma-jori ty recognizes, we would abdicate our responsibili ty ifwe allow the Legislature to conduct "itself in a mannerinconsistent with [our] constitution and when it does , it isincumbent upon the judiciary to nullify a leg islative en -actment contrary to the constitution." So . 2 d at .

377 U.S . at 578.

Thus , the United States Supreme Court's rationalefor allowin g a five-percent deviat ion i n population forstate legislative apportionment i s to enable state s tomaintain pol i t i cal subdivi s ion s, s uch a s counties , yet theredistricting p l an at i ss u e here devi ate s substantially fromthe "n e arly as equa l ... as may be" populat io n re quire -ment of Art. IX , § 2 00, for each s enate district, whi le i t

The Court is necessarily exercising judicial reviewin thi s ca s e , because i t reviews the constitutionality ofAct No . 2001 -727 ; the outcom e of that review does notd etermin e whether we are exercis ing that power . If theCourt believes that it does not have the power to reviewthi s i ss ue becau s e i t present s a purely [ ** 46] l eg i s lativematter, then i t s hould so s tate and re fira in . But a deCerm i -nation that th e Rice plainti ffs have not ove rcome th e

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8 3 5 S o. 2 d 1 57, *; 2 002 Ala . LEXIS 2 9 1, **

presumption of constitutionality i s, in esse nce , an exer-cise of judicial review . An argument that judic i a7 rev i ewprecludes a review of a summary judgment on such animpor tant constitution a l i ss u e i s, in actuality, an avo id-ance of our const i tutional respo ns ibiliry .

Representation is the bedrock tool of our democraticrepublican government . "Representative government isin essence self-government through the medium ofelected representatives of the p eople , and each and eve rycitizen has an inalienable right to full and effective par-ticipation in the political processes of his State' s legisla-tive bodies." Reynolds v. Sims, 377 U.S. 533, 565 , 12 L.Ed. 2d 506, 84 S. Ct. 1362 (1964 ) . It means just as much,if not more, where state legislative bodies are concernedas it does for Congress, because "state legislatures are,historically, the fountainhead of representative govern-ment in this country . " Revnolds , 377 U.S. at 564 . Preter-mitt ing argument on the legislative reapport ionmentscheme when possible constitutional violations [ * *47]are at stake is unconscionable . Further cons i deration ofthe issues is warranted ; thus , summary judgment shouldnot have been granted . Accordingly, I dissent .

[ * 174] SEE, Justice (dissenting).

I do not disagree with the well-reasoned main opin-ion; I dissent only because , given the importance of thiscase, I would grant oral argument solely on the questionof the effect of Reynolds v. Sims , 377 U.S. 533, 12 L. Ed.2d 506, 84 S. Ct. 1362 (1964) , on the obligation theAlabama Constitution. Art. IX, & 200 , places on the Leg-islature to create districts "as nearly equal to each otheri n the number of inhabitants as may be . " The questionwhether the Legislature fulfilled its obligation to pre-serve county lines -- indeed, whether in light of Reynoldsv . Sims it any longer has such an obligation -- is ex-pressly not before us on appeal ; yet, it is not clear to mehow this Court can construe the "as nearly equal" obliga-tion except in light of the county-preservation obligation.It may be that the Legislature should have tried hardernot to divide counties and that a 10% deviation in thepopulation of the distri cts would have been permissiblehad few counties been divided ; [ ** 48] however, 30 ofthe 67 counties in the State were , in fact , divided. Whateffect should this fact have on our evaluation of the Leg-islature's performance of its constitutional obligation tocreate districts "as nearly equal ... as may be"?

I agre e with the main opini on that thi s Court i s notwithout the powe r to revi ew whether the Legislature hascarr i ed out it s constitutional duty to re distr i ct . See Rice v .English, [M s. ]0109(8 , M ay 24 , 2002 ] 2 002 Ala . LEXIS291 (Ala. 2002) . H owever , for prud entia l re asons , thatpower should rare ly be ex erci sed . ` Leg i s lators take thesame oath of offic e that we do :

"I solemnly swear that I will support the Constitu-tion of the United States , and Constitution of the State ofAlabama, so lon g as I continue a citizen thereof, and thatI wi ll faithfully and honestly discharge the duties of theoffice upon which I am about to enter , to the best of myability . So help me God,"

Thus, it well may be that whatever the answer to myquestion, I ultimately would defer to the judgment of theLegislature , but I cannot know that without first resolv-ing the Reynolds v . Sims question .

6 See Jensen v . Wisconsin Elections Board,2002 WI 13 249 Wis.2d 706, 713 639 N W 2d537 , 540 (2002) ( " Despite the reality that redis -trictin g i s now almost always resolved throughlitigation rather than legislation , we are moved toemphasize the obvious : redistricting remains aninherently political and legislative - - noYjudicial -- task . "); and In re ReaRportionment of Towns ofHartland, Windsor, and West Windsor, 160 Vt . 9,14-15, 624 A .2d 323, 326 (1993) ("Redistrictingis 'primarily a matt er for legislative considerationand determination . ' In re Senate Bill 1 77, 130 Vt .365, 371 , 294 A.2d 657. 660 (1972) . Accord-i ngly, the redistricting plans approved by theGeneral Assembly are presumed to be valid , In reSenate Bill 1 77, 130 Vt . 358 361 294 A.2d 653654 ( 1972), and there is 'a heavy burden of proofon those who alle ge that a redistricting plan vio -lates the Con stitution . ' Davis v . Bandemer . 478U . S . 109 185, 106 S Ct 2797 2838 92 L Ed 2d85 (1986) (Powe ll, J . , concurring in part and dis -senting in part .) Fu rther , it is primarily the Legis-lature, not this Court, that must make the neces -sary compromises to effectuate state constitu-tional goals and statutory policies within the limi-tatio n s imposed by federal law.").

I **49)

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