Corder v. Kirksey

• Decision Date: 16 November 1978
• Docket Number: No. 76-3601,76-3601
• Citation: 585 F.2d 708
• Parties: James H. CORDER and Harry W. Western, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Robert H. KIRKSEY, Individually and as Probate Judge of Pickens County et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 708

585 F.2d 708

James H. CORDER and Harry W. Western, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Robert H. KIRKSEY, Individually and as Probate Judge of

Pickens County et al., Defendants-Appellees.

No. 76-3601.

United States Court of Appeals,

Fifth Circuit.

Nov. 16, 1978.

Edward Still, Birmingham, Ala., Laughlin McDonald, Neil Bradley, Atlanta, Ga., for plaintiffs-appellants.

W. O. Kirk, Jr., Carrollton, Ala., Martin Ray, Tuscaloosa, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, HILL and FAY, Circuit Judges.

TJOFLAT, Circuit Judge:

Black residents of Pickens County, Alabama, brought this action to challenge the electoral schemes for the county commission, board of education, and Democratic Executive Committee. The plaintiffs contested the districting of all three bodies on the basis that the districts did not satisfy the "one person, one vote" mandate of the fourteenth amendment to the Constitution. See generally Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). They also questioned the at-large method of electing county commissioners and school board members; ¹ the plaintiffs alleged that this feature of the electoral process operated to dilute the black vote in Pickens County. See generally Nevett v. Sides, 571 F.2d 209, 215-17 (5th Cir. 1978), Petition for cert. filed, 47 U.S.L.W. 3247 (U.S. Sept. 22, 1978) (No. 78-492). The plaintiffs' case, therefore, sounded in both genres of reapportionment actions: the "quantitative" (one person one vote) and the "qualitative" (dilution). ² See id. at 215-16.

The plaintiffs moved for partial summary judgment on their quantitative claims. The district court granted the plaintiffs' motion, enjoined the acts under which the county commission and board of education districts were apportioned, and invalidated the Democratic Executive Committee's apportionment. The court held the case in abeyance "in order to give the legislative process an opportunity to correct outstanding apportionment problems in Pickens County without further judicial intervention." Record, vol. 1, at 53.

The Alabama legislature responded by enacting plans for the county commission and board of education. The legislature redrew the commission districts but continued the at-large method of election. The school board residence districts were abolished, and the members ran at-large as before. See note 1 Supra. The Democratic Executive Committee resolved itself to comply with the court's order by tying its districting into that to be approved for the county commission. ³

The court approved the legislature's action as to the county commission but declined to accept the plan for the board of education because the Attorney General of the United States, acting pursuant to section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1970), had interposed an objection to that plan. Due to the imminence of the school board elections, the Court fashioned its own apportionment scheme for the board. Its plan consisted of four single-member districts, corresponding to the nominating districts of the county commission, and one at-large district.

The plaintiffs appeal the judgment of the district court on two grounds. First, they claim that the district court erred in providing an at-large seat for the board of education. Second, they assert that the court was incorrect in validating the commission plan. We hold that the district court failed to set forth sufficiently its justifications for employing the at-large school board seat, and therefore we remand with instructions that the district court make justifying findings. As regards the second ground, we conclude that the court erred by omitting to make adequate findings of fact as to the constitutionality of the commission plan; therefore, we remand to enable the district court to make appropriate findings.

I

The electoral schemes that are the subject of this litigation are unusual and complex. We think it profitable to discuss them in some detail, and, because the county commission districts form the basis for the school board's apportionment, we shall begin with the commission.

A

At the inception of this suit on November 15, 1973, Pickens County was divided into four separate commission districts. ⁴ Each district nominated candidates for its seat. In the general election, however, these nominees ran county-wide; all the voters in Pickens County had the opportunity to vote for a candidate for each seat. ⁵ The Pickens County Probate Judge served ex officio as the fifth member and chairman of the commission.

As we briefly sketched above, the plaintiffs attacked this scheme at two levels. First, they alleged that the districts from which the commission candidates were nominated were malapportioned. Second, they claimed that the at-large feature of the general election acted to dilute the votes of blacks in Pickens County, who in 1973 constituted forty-two percent of the population and twenty-nine percent of the registered voters of that county.

The district court agreed that the nominating districts did not satisfy the quantitative apportionment standards of the fourteenth amendment, held applicable to local governmental entities by the Supreme Court in Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). Hence, on January 23, 1975, the court invalidated the act under which the county commission had been apportioned and enjoined commission elections until the Alabama legislature drew new districts. The court did not at this time pass upon the constitutionality of the at-large feature of the general elections for county commission.

On August 21, 1975, the Alabama legislature passed an act redistricting the commission, 1975 Ala.Acts No. 594, but not affecting the method of election. The Governor signed the bill on October 1, 1975, and the county commission moved the court to approve Act 594. ⁶ On March 6, 1976, the court conducted an evidentiary hearing on the merits of the plaintiffs' prayer to enjoin the at-large feature of the commission. In an order dated March 12, 1976, the district court approved Act 594, whose districting met the plaintiffs' approval. The court upheld the at-large method of electing commissioners in the general election and thus denied the plaintiffs' motion for injunctive relief.

The plaintiffs appeal the ruling of the court upholding the at-large method of election. We conclude that the district court failed to make sufficient findings of fact for us to determine whether the at-large feature operated impermissibly to dilute the votes of blacks.

In upholding the at-large aspect of the commission elections, the court made absolutely no findings of fact. It merely stated,

The Court has considered the motions, . . . the pleadings and other papers on file in this case, the briefs and argument of counsel, the applicable law and the evidence received in open court. . . . The Court is . . . of the opinion that the request for relief as to the County Commission made by plaintiffs in their motion for injunctive relief should be denied.

Record, vol. 1, at 76-77. As several cases of this circuit decided since the district court entered its order of March 12 demonstrate, this conclusory language is grossly inadequate.

The most recent applicable precedent is Blacks United for Lasting Leadership v. City of Shreveport, 571 F.2d 248 (5th Cir. 1978). In Shreveport, a suit challenging the at-large election of that city's commission we found the district court's findings inadequate to satisfy Fed.R.Civ.P. 52(a), which requires the district court, in cases tried without a jury, to "find the facts specially and state separately its conclusions of law thereon." ⁷ We observed that the need for specific factual determinations has special significance in qualitative reapportionment cases alleging dilution, because such cases are "founded . . . upon 'an intensely local appraisal of the design and impact of the (at-large) district in the light of past and present reality, political and otherwise.' " 571 F.2d at 255 (quoting White v. Regester, 412 U.S. 755, 769-70, 93 S.Ct. 2332, 2341, 37 L.Ed.2d 314 (1973)). In three other dilution cases, Hendrix v. Joseph, 559 F.2d 1265 (5th Cir. 1977), David v. Garrison, 553 F.2d 923 (5th Cir. 1977), and Nevett v. Sides, 533 F.2d 1361 (5th Cir. 1976), we held that district courts had similarly made inadequate findings of fact and remanded the cases for additional findings.

These precedents require us to remand to the district court that aspect of the case concerning the constitutionality of the at-large commission races. We offer the following words to guide the court on remand. The court should apply the precepts set forth by this court sitting en banc in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), Aff'd on other grounds sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). Zimmer requires district courts to consider certain primary and enhancing criteria in deciding dilution cases. ⁸ Essentially, these criteria establish categories of circumstantial evidence that the district court must specifically consider both separately and in the aggregate. As we said in Nevett v. Sides, 571 F.2d 209, 226 (5th Cir. 1978), Petition for cert. filed, 47 U.S.L.W. 3247 (U.S. Sept. 22, 1978) (No. 78-492):

The ultimate issue in a case alleging unconstitutional dilution of the votes of a racial group is whether the districting plan under attack exists because it was intended to diminish or dilute the political efficacy of that group. Zimmer establishes certain subissues, the criteria, that a trial court must address before it can reach the ultimate issue of dilution. In essence, the criteria are directions that tell the trial court what type of circumstantial evidence can make out...