Old Person v. Brown

• Decision Date: 04 December 2002
• Docket Number: No. 02-35171.,02-35171.
• Citation: 312 F.3d 1036
• Parties: Earl OLD PERSON; Carol Juneau; Joe MacDonald; Jeannine Padilla, Plaintiffs-Appellants, v. Bob BROWN, Secretary of State for the State of Montana; Judy Martz, Governor of the State of Montana, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

312 F.3d 1036

Earl OLD PERSON; Carol Juneau; Joe MacDonald; Jeannine Padilla, Plaintiffs-Appellants, v. Bob BROWN, Secretary of State for the State of Montana; Judy Martz, Governor of the State of Montana, Defendants-Appellees.

No. 02-35171.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 7, 2002.

Filed December 4, 2002.

Lauglin McDonald, American Civil Liberties Union, Atlanta, GA, for the plaintiffs-appellants.

Sarah A. Bond, Assistant Attorney General, Helena, MT, for the defendants-appellees.

Appeal from the United States District Court for the District of Montana, Philip M. Pro, District Judge, Presiding. D.C. No. CV-96-00004-PMP.

Before NOONAN, HAWKINS and GOULD, Circuit Judges.

OPINION

GOULD, Circuit Judge.

We enter again the turbulent and at times turbid waters of voting rights litigation. Four American Indian plaintiffs appeal the district court's judgment in favor of defendant officials of the State of Montana on the plaintiffs' vote-dilution claim under section 2 of the Voting Rights Act, 42 U.S.C. § 1973. The district court held that the plaintiffs had standing to allege Native American vote dilution only with respect to the House and Senate Districts where they resided. Also, the court held that the plaintiffs had not shown vote dilution in the House and Senate Districts where they resided. Finally and alternatively, the district court held that, even if the plaintiffs had shown vote dilution, their claim failed because of the state's imminent redistricting and because any remedy would impermissibly disrupt the 2003 elections. We have jurisdiction pursuant to 28 U.S.C. § 1291. Concluding that the district court did not clearly err in determining that the totality of circumstances did not establish vote dilution in the districts where plaintiffs resided, we affirm on that ground.

I

The four Indian plaintiffs, Earl Old Person, Carol Juneau, Joe MacDonald, and Jeannine Padilla, are before us again in appeal of the district court's rejection after bench trial of their vote-dilution challenge to Montana's districting scheme under section 2 of the Voting Rights Act.¹ The plaintiffs live on the Flathead and Blackfeet Indian Reservations, which are located in the four-county area including Flathead, Lake, Glacier, and Pondera Counties in northwest Montana. Defendants Bob Brown and Judy Martz are officials of the State of Montana, with responsibilities relating to elections.

Montana is divided into House Districts and Senate Districts. Each Senate District is composed of two House Districts; there are 100 House Districts and 50 Senate Districts. One representative is elected from each district. The current plan contains five majority-Indian House Districts and one majority Indian Senate District. State Senators serve four-year terms, whereas members of the state House of Representatives serve two-year terms. According to the 1990 census, on which Montana's current districting plan was based, Native Americans comprise about 6% of the state's population. The 2000 census indicates that the population of the state has increased but that the Native American population has increased in greater proportion than the white population. Montana will automatically redistrict under its laws in 2003.

In the first trial, the district court entered judgment for the defendants after a bench trial. The district court rejected the plaintiffs' claims 1) that Montana's 1992 redistricting plan ("the 1992 plan") had been adopted for a discriminatory purpose and 2) that the 1992 plan impermissibly diluted the voting power of Native Americans. Old Person I, 230 F.3d at 1117.

We affirmed the district court's rejection of the first claim relating to discriminatory legislative motive but reversed the district court's judgment on the second claim of vote dilution. We held that the district court erred in relying on the electoral success of Indians in majority-Indian House Districts when evaluating the extent of white bloc voting, and in concluding that Native Americans were proportionally represented as a result of the 1992 plan. Id. We remanded, directing the district court to evaluate further whether vote dilution had occurred under the totality of the circumstances.

On remand, the district court heard additional evidence relating to the 1998 and 2000 elections. Only four out of the eleven plaintiffs who had been before us remained in the case. These four live in House Districts ("HD") 73 and 85, and Senate Districts ("SD") 37 and 43. The district court held that the plaintiffs had limited standing and to prevail had to show, but did not show, vote dilution in the specific legislative districts where they resided. Also, the district court held that even if the plaintiffs had shown vote dilution, their claim failed because of the unavailability of an adequate remedy. The district court reasoned that the state would be redistricting in 2003, and the 2002 elections (the last elections to be conducted under the 1992 plan) were fast approaching. This appeal by the plaintiffs followed.

II

We set forth the standard of review in Old Person I:

We review for clear error the district court's findings of fact, including its ultimate finding whether, in the totality of circumstances, vote dilution exists in violation of § 2. Thornburg v. Gingles, 478 U.S. 30, 78-79, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986); Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586, 591 (9th Cir.1997). We retain the power, however, "`to correct errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law.'" Gingles, 478 U.S. at 79, 106 S.Ct. 2752; Salt River, 109 F.3d at 591.

230 F.3d at 1119. The "clear error" standard generally requires that "[i]f the [trial court's] account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Phoenix Eng'g & Supply Inc. v. Universal Elec. Co., 104 F.3d 1137, 1141 (9th Cir.1997) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).

In Gingles, the Supreme Court stressed that a finding of vote dilution should be reviewed under the clearly-erroneous test because the examination of a vote-dilution claim "is peculiarly dependent upon the facts of each case[ ] ... and requires an intensely local appraisal of the design and impact of the contested electoral mechanisms." Gingles, 478 U.S. at 79, 106 S.Ct. 2752 (quotation marks and citations omitted). The Supreme Court has also stated that a district court's factual findings in a vote-dilution case represent "`a blend of history and an intensely local appraisal of the design and impact of the ... [voting] district in the light of past and present reality, political and otherwise.'" Rogers v. Lodge, 458 U.S. 613, 622, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982) (quoting White v. Regester, 412 U.S. 755, 769-70, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973)).

III

Old Person I is the law of the case. "Under the `law of the case' doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case." Richardson v. United States, 841 F.2d 993, 996 (9th Cir.1988). The law of the case is a discretionary doctrine, which is

founded upon the sound public policy that litigation must come to an end. An appellate court cannot efficiently perform its duty to provide expeditious justice to all if a question once considered and decided by it were to be litigated anew in the same case upon any and every subsequent appeal. This doctrine also serves to maintain consistency.

Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir.1997) (en banc) (citations and quotation marks omitted). The "law of the case" doctrine is subject to the following exceptions: "(1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial." Id. (citations, quotation marks, and footnote omitted). Here, none of the three exceptions applies. We are bound by the opinion of the prior panel as the law of the case. Also we have no discretion to depart from precedential aspects of our prior decision in Old Person I, under the general law-of-the circuit rule. See Ross Island Sand & Gravel v. Matson, 226 F.3d 1015, 1018 (9th Cir.2000) ("Since Newton remains the law of the circuit ... we are without authority to overrule its directives.").

IV

The district court concluded that the plaintiffs lacked standing to allege dilution beyond the House and Senate Districts where they reside. We need not reach that issue. As our analysis makes clear, even if the plaintiffs had standing to allege vote dilution outside of their own legislative districts, that would not affect our holding that, under the totality of the circumstances, it was not clearly erroneous for the district court to determine that there was no vote dilution.

V

To evaluate the district court's findings, we must address the elements of a vote-dilution claim and the type of evidence that is relevant in assessing it.

In 1982, Congress amended section 2 of the Voting Rights Act to eliminate any intent requirement with respect to vote-dilution claims. Section 2 as amended is set forth in 42 U.S.C. § 1973:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, ... as provided in subsection (b).

(b) A violation of subsection...