Constitutionality of proposal that any town paying 45% or more of county tax appropriation automatically have a representative on the board of county commissioners

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) J RICHARD.:,. co:-,£:. r':.:T-iQ::i~J::·~' G'.:'JERAL t.>( . f·•''•i• 1·-,•· \"' I ) r, 'i et~ ,, . ,ii. ,JOHN M R PATERSON DEPUTY ATTORNEY GnlERAL STNn: r>t•· :VL\ 1:--.F. DEPARTMENT OF THE ATTORNEY GENERAL AUGUS'rA, MAIN!;; 04333 February 15, 1979 Senator Donald O'Leary Maine State Senate Augusta, Maine 04.333 Re: Constitutionality of Proposal that Dear Senator O'Leary: any Town paying 45% or moreof-County Tax Appropriation Automatically Have· a Representative on the Board of County Commissioners. You have requested an opinion regarding the constitu- tionality of legislation which would provide that any muni- cipality that pays 45% or more of the county tax appropriation would automatically have a representative on the Board of C:Junty Commissioners. For the reasons stated below, it is my opinion that such a proposal would violate the Fourteenth A:nendment to the United States Constitution. Under present law, each county has three commissioners w:io each serve for a four year term. JO M.R.S.A. §101. Begin- ~ing i.::-i. 1969, the Legislature began a legislative program where- b.:t each county is divided into three commissioner districts. See 30 M.R.S.A. §§105-A to 105-U. The three commissioner dis- tricts within each county appear to be substantially equal_ in population. Moreover, the Legislature has provided that each com..71.issioner district will have a representative from that dis- trict on the Board of County Commissioners. In Westberry v. Sanders, 376 U.S.l (1969) the United States Supreme Court held that in Congressional elections each person's vote must be substantially equal in weight. This principle of "one man-one vote" was later applied to elections - 2 - for representatives to State legislatures. 1 See Reynolds v. Sims, 377 U.S. 533 (1964). Subseq1.:u2.ntly, the.Uriitec1 States Supreme Court applied the "one man-one vote" principle to county governmental units. Avery v. Midland County, 390 U.S. 474 (1968). As stated by the Court ln Hadfey··v:- Junior College !?i..:>_~_ri_~:t:._.?f Metropolitan Ket_nS_?.tS City, 397tT:s~:--snIT7o), ". . . a qualified voter in a locc:tl eJ.ection .•. has a constitutional right to have his vote counted with substantially the same weight as that of any other voter in a case where the elected officials exercised 'general governmental powers over the entire geo- graphic area served by che body'" Id. at 53 quoting Avery v. Midland County, 390 U.S. at 485. Thus where a Board of County Commissioners exercises "general governmental powers," the election of members to that Board is governed by the Equal Protection Clause of the Fourteenth Amend- ment, and, in particular, the "one man-one vote; principles articulated by the United States Supreme Court. There can be little question that County Commissioners in the State of Maine exercise general governmental powers in the area over which they have jurisdiction. For example, the county commissioners have the power to tax, to maintain and repair courthouses and jails, and to borrow money. (See 30 M.R.S.A. §§251, 301, and 404 respectively). County Commiss- ioners in Maine certainly exercise governmental powers and therefore fall within the scope of the Supreme Court's deci- sion in Avery v. Midland County, supra. 1. In Maine, the State Constitution expressly provides for apportiorment of the State into Representative ano. Senatorial Districts based on population. See Art. IV, Pt. 1, §§2 and 3; Art. IV, Pt.2., §§1 and 2. This has been done, of course, in order to comply with equal protection requirements. For an examination of the "one man-one vote" principle as it has been applied to apportionment in the State of Maine, see In re Apportionment of the House of Representatives, Me., 315 A.2d 211, amended as to description of certain districts, 316 A.2d 508 (1974). 2. Prior to the Supreme Court's decision in Avery v. Midland County, supra., several state and federal courts had applied the one man-one vote principle to local governmental units. See, e.g., Hyden v. Baker, 286 F.Supp. 475 (D.C.M.D. Tenn. T'9'b8);-.Martinolich v. Dean, 256 F.Supp. 612 (D.C.S.D. Miss. 1966); :fihller v. Board orsupervisors, 63 Cal.2d 343, 405 P.2d 857, 46 Cal.Rptr. 617(1965); Montgomerv County Council v. Garrott, 243 Md. 634, 222 A.2d 164(1966); Hanlon v. Towez, 274 Minn. 187, 142 N.W.2d 741(~966); Armentrout v. Schooler, 409 S.W.2d 138 (Mo.1966); Searnan v. Fedour.fcn;:-T6-T.r.Tcr9':r, 209 N.E.2d 778, 252 N.Y.s."2"2i.- 4·44 (1965)-; Dailey V, Jones, 81 S.D. 617, 139 N.W.2d 385(1966); State ex rel. Sonneborn v. Sylvester, 26 Wis.2d 43, 132 N.W.2d 249 (1965) .. In view of the Supreme Court's decisions addressing the principle of "one man-one vote," it is apparent that a proposal to provide that all municipalities within a county which pay 45% or more of the county tax appropriation would automatically have a representative from th.:1t municipality on tb:; Board of County Commissioners, would run afoul of the Fourteenth Arne.nc1ment. Such a propos,.tl would dilute th8 vote:-: of those persons who are residents of towns paying less than 45% of the county tax appropriation. 3 The proposal dlscrimin~tes between voters on the basis of the amount of cour1ty tax a parti- cular municipality pays. Such a di.stinction is not reasonable ttn(I of:fc,ncL: Ll1c'_' cuncc~pL of "on< .. !-nt,:1r OlH:.> vol-.<'-" I hope the foregoing information is helpful to you anc1 if I can be of further assistance to you, please feel free to contact me. \since:i;e,ly, \ ;: ~ ! /' I . l ~ ~ .'. "'\ / ./ 1 ,. ~ ".,,. II RICHARD s. '-coH~N....._ Attorney _General RSC: sm 3. For example, assume o. municipality pays 45% of the county tax appropriation but has only 20% of the county population. If this municipality were to automatically have a representu- tive on the Board of County Commissioners, the voters in that ·municipality would, at a very•minimum, be electing one-third of tht~ representatives on the Board. Consequently, the votes of these residents would have a weight and influence dispro- portionate to the actual population of the municipality. Con- versely, the voters of a different municipality with a lower county tax assessment but a higher population would have their votes diluted.