Zimmer v. McKeithen, 71-2649.

• Decision Date: 03 August 1972
• Docket Number: No. 71-2649.,71-2649.
• Citation: 467 F.2d 1381
• Parties: Charles F. ZIMMER, Plaintiff, Stewart Marshall, Intervenor-Appellant, v. John J. McKEITHEN et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

467 F.2d 1381 (1972)

Charles F. ZIMMER, Plaintiff, Stewart Marshall, Intervenor-Appellant, v. John J. McKEITHEN et al., Defendants-Appellees.

No. 71-2649.

United States Court of Appeals, Fifth Circuit.

August 3, 1972.

Stanley A. Halpin, Jr., Debra A. Millenson, George M. Strickler, Jr., Elie, Bronstein, Strickler & Dennis, New Orleans, La., for intervenor-appellant.

William J. Guste, Jr., Atty. Gen. of La., Baton Rouge, La., William B. Ragland, Jr., Voelker, Ragland & Brackin, Lake Providence, La., for defendants-appellees.

Before GEWIN, COLEMAN and INGRAHAM, Circuit Judges.

COLEMAN, Circuit Judge:

East Carroll is a small parish (county) located in the northeast corner of Louisiana. It adjoins the Mississippi River on the east and the State of Arkansas on the north. The area of the parish is 452 square miles. In 1970, it had 7568 black and 5316 white inhabitants; 59% black and 41% white. Lake Providence, the parish seat, has a population of 6183, about half of all the people in the parish. The remaining populace is scattered over an area of 450 square miles, at an average population density of fifteen persons per square mile.

Since 1968, the parish has been embroiled in litigation over the one man-one vote apportionment of its wards for the election of police jurors (county commissioners) and school board members. As they existed in 1968 the wards fell far short of compliance with the one man-one vote rule. The sole issue is the method to be used in bringing the parish into compliance with that constitutional principle.

The litigation was initiated by a white citizen of the parish, who sought enforcement of the rule. Thereafter, Stewart Marshall was allowed to intervene on behalf of himself and the class of black voters in East Carroll. The intervenor urged that allowing the police jury and school board to be elected from the parish at-large denied the rights of black voters secured by the Fourteenth Amendment, the Fifteenth Amendment, and the Voting Rights Act of 1965. However, no three judge court was convened as required in Voting Rights Act cases. See Allen v. State Board of Elections, 1969, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 and Perkins v. Matthews, 1971, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476.

This appeal emanates from a hearing held on August 2, 1971, after which the District Court adhered to its previously adopted parish at-large election plan. Notice of appeal, with the necessary appeal bond, was filed on August 9, 1971. The plaintiff's brief in this Court was filed December 1, 1971. The appellees' brief followed on December 15. Oral argument in this Court was scheduled for, and did take place, April 5, 1972.

In the meantime the original plaintiff was allowed to withdraw and the litigation was pursued by the intervenors.

On March 23, 1972, the plaintiff-intervenor-appellant, Stewart Marshall, filed a motion before the District Court, praying that the order of August 2, 1971, then on appeal to this Court, be withdrawn and that the parish officers be elected by wards according to a plan of population equalization which was filed with the motion.

On March 27, 1972, the District Court by detailed order, approved the plan thus submitted, reapportioning the parish by wards, and directing that police jury and the parish school board should be elected accordingly. The wards were of unequal population, so in some instances more than one official was to be elected from a particular ward, depending on its population quotient.

In the absence of exceptions not applicable to the situation now before us, once an appeal is taken, jurisdiction passes to the appellate court, Turner v. HMH Publishing Company, 5 Cir., 1964, 328 F.2d 136, 137; Janousek v. Doyle, 8 Cir., 1963, 313 F.2d 916, 920; Thompson v. Harry C. Erb, Inc., 3 Cir., 1957, 240 F.2d 452, 454.

The District Court was therefore without jurisdiction to enter the order of March 27, 1972. Since the defendants have duly appealed its entry that order is hereby vacated.

This leaves for disposition the judgment of August 2, 1971, the original subject of this appeal. That judgment was the result of a hearing conducted on July 29, 1971, at which the parties to the litigation submitted several plans of reapportionment and witnesses were examined.

The District Court then found that the black population of East Carroll comprised 58.7% of the parish, that the plan of reapportionment offered on behalf of the police jury and school board was more satisfactory than any other plans presented because it offered a "zero deviation" while the other plans did not; that the plan did not discriminate against the black population nor dilute its voting strength, whereas other plans did dilute the black population of different areas within the parish; that the plan adopted had been endorsed by two of the three black public officials then serving on the police jury and the school board; hence the plan would be approved by which the parish would be divided into seven wards and that one police juror and one school board member would be elected from each of the wards, except that three would be elected from Ward 3, with all officials to be "elected at-large throughout East Carroll Parish".

As stated, this is the judgment now before us for review.

On appeal, Stewart Marshall, and the class he represents, do not contend that the District Court findings are clearly erroneous. They do urge that the District Court was without power to order parish at-large elections because under Section 5 of the Voting Rights Act of 1965 the Attorney General of the United States had duly objected to Louisiana statutes which would have permitted at-large elections for school board and police juries. The Attorney General held, as a general proposition, that such elections discriminated against Negro voters on account of their race and denied them an effective voice in the election of parish officials. The Attorney General thus denied approval to state statutes of general application and appellants say this was binding on the District Court in the exercise of its equity jurisdiction in a case primarily concerning the application of the one man-one vote rule.

It must be noted that this is not a case in which a legislature, board, or commission attempted to reapportion itself. In such a case, Section 5 clearly applies. What we have here is an adversary action, invoking the equity jurisdiction and the equitable adjudication of the District Court. As the Supreme Court succinctly said in Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268, and as this Court said in Sheffield v. Itawamba County Board of Supervisors, 5 Cir., 1971, 439 F.2d 35, court ordered plans resulting from equitable jurisdiction over adversary proceedings are not controlled by Section 5. If this were not so, the exercise of jurisdiction by the courts would be meaningless. The Attorney General has no authority to review or to set aside the judgments of courts duly entered in the exercise of their jurisdiction over the parties and the subject matter.

Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) was concerned with legislative enactments, not judicial determinations. Neither had there been any prior litigation or judicial determination in Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971).

On June 3, 1971, the Supreme Court entered its Per Curiam opinion-order in Connor v. Johnson, supra. Connor involved the election of twelve Representatives from Hinds County, Mississippi, pursuant to a court ordered plan of reapportionment. The Three-Judge District Court had directed that these twelve state legislators be elected from the county at-large. The Supreme Court, on the representations contained in the briefs and on the language contained in the lower court decision, directed the District Court, "absent insurmountable difficulties, to devise and put into effect a single-member district plan * * * *."

It is to be noted, however, that Hinds County had a population of 214,973 and a representative was required for a population norm of 18,171 per seat. In an at-large election the candidate would have to make the race before 196,802 more people (twelve times the number) than was required for a single-member district. As it developed in that case, there were insurmountable obstacles to the creation of single-member districts within the time frame involved and the search continues for a solution.

In the case of East Carroll Parish the total population amounts to only 12,884. In 99% of the land area the population density averages only fifteen persons per square mile. There may be insurmountable difficulties to the creation of single-member districts for the election of police jurors and school board members. As to this, the present record presents no findings. The plan approved by the District Court after the perfection of this appeal had some multiple member wards.

We are unable to see how at-large elections in this small parish could possibly discriminate against its black citizens. They have a commanding majority of the total population. This majority would participate in the election of not one but of every police juror and every school board member in the parish. Every elected official would thus be answerable to all black citizens of the entire parish. On a single-member district plan, if such can be devised, the voters would have a voice in the election of only one member on the police jury or the school board, It would, therefore, be just as easy to say, in the exercise of discretion, that a single district plan in this parish would more clearly dilute the voting power of the blacks than would one in which every voter, black and white, has the same identical voice in the selection of not one, but all, members of the elective body. As a matter of fact, the District Judge so found.

We are aware of no case in this Court or in the Supreme Court which...