Jackson v. Desoto Parish School Bd.

• Decision Date: 04 December 1978
• Docket Number: No. 76-3257,76-3257
• Citation: 585 F.2d 726
• Parties: Clinton JACKSON et al., Plaintiffs-Appellees, v. DeSOTO PARISH SCHOOL BOARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 726

585 F.2d 726

Clinton JACKSON et al., Plaintiffs-Appellees, v. DeSOTO PARISH SCHOOL BOARD, Defendant-Appellant.

No. 76-3257.

United States Court of Appeals,

Fifth Circuit.

Dec. 4, 1978.

John F. Ward, Jr., Baton Rouge, La., for Desoto Parish School Bd B. J. Woods, Shreveport, La., for plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before COLEMAN, CLARK and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

This is a case of re-reapportionment; it raises the issue whether the trial court properly ordered a new apportionment of a public body that had been reapportioned five years earlier in accordance with its own prior order. Because the procedure followed was improper, we remand for a hearing and reconsideration.

Plaintiffs, a class composed of black citizens of DeSoto Parish, first challenged the constitutionality of the apportionment scheme for the election of both the DeSoto Parish Police Jury (the county governing body) and School Board in 1971. After a full hearing, the district court held in Clark v. DeSoto Parish Police Jury, an unreported opinion, that the common apportionment plan used for the election of members of each governmental unit was invalid, and it subsequently approved a new plan submitted by the defendants as "constitutionally acceptable and equitable". It signed an order to this effect on April 7, 1972, requiring elections to be held pursuant to its plan, and did not reserve jurisdiction. Elections were held under this reapportionment plan in 1972, 1974 and 1975.

In February, 1976, prior to the School Board elections of that year, plaintiffs instituted the present action, initially against the Police Jury only, claiming that the reapportionment plan adopted by the court at the end of the 1971 litigation is itself unconstitutional. The district court denied motions to dismiss on grounds of res judicata and collateral estoppel, and issued an ex parte order declaring the existing apportionment plan unconstitutional, enjoining future elections under it, and requiring the submission of a new plan by the defendants. The plaintiffs later filed an amended complaint joining the School Board as a defendant, but the Board had neither been served nor given an opportunity to be heard before the order was signed. The Police Jury has since reached a compromise on a new apportionment plan applicable to its elections, and a motion to dismiss the appeal as to it was granted on September 8, 1976. We thus consider only the issues raised by the School Board's appeal from the order entered against it before it was even joined as a defendant.

American citizens have a constitutional right to participate fully and effectively in the election of county governmental authorities, Avery v. Midland County, 1968, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45. Reapportionment plans, whether adopted by legislative enactment or court order, are not immutable. The judicial process must be flexible enough to allow challenges to schemes that have, because of changing population patterns and a developing body of constitutional jurisprudence, become unconstitutional in their operation.

In Louisiana, each parish governing authority is required to examine its apportionment plan within six months after the official release of every decennial census to determine whether there exists any substantial variation in the representation of election districts. La.Rev.Stat.Ann. § 33:1411 (West Supp.1978). If the decennial census discloses a change in the population pattern sufficient to require a new apportionment plan, it is the duty of the legislative body to reapportion itself, and, if it fails to do so, then a voters group clearly has the right to demand judicial relief. See Zimmer v. McKeithen, 5 Cir. en banc 1973, 485 F.2d 1297, Aff'd sub nom., East Carroll Parish School Board v. Marshall, 1976, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296; Kirksey v. Board of Supervisors, 5 Cir. en banc 1977, 554 F.2d 139, Cert. denied, 1977, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454, and cases cited therein.

Decennial reapportionment is a "presumptively rational method to avoid 'daily, monthly, annual or biennial reapportionment' as population shift(s)", Whitcombv Chavis, 1971, 403 U.S. 124, 163, 91 S.Ct. 1858, 1879, 29 L.Ed.2d 363, 387, quoting Reynolds v. Sims, 1964, 377 U.S. 533, 583, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506, 540, but this does not mean that a political body cannot be compelled to reapportion itself more than once every 10 years. Reynolds v. Sims, supra, 377 U.S. at 584, 84 S.Ct. at 1393, 12 L.Ed.2d at 540; Whitcomb v. Chavis, 403 U.S. at 163, 91 S.Ct. at 1879, 29 L.Ed.2d at 387. Thus, in Whitcomb, the district court had denied reapportionment in 1965. In a later action it ordered reapportionment, "not . . . as a result of population shifts since the 1965 . . . decision, but only because the disparities among districts which were thought to be permissible at the time of that decision had been shown by intervening decisions of (the Supreme) Court to be excessive." 403 U.S. at 163, 91 S.Ct. at 1879, 29 L.Ed.2d at 387. Or, after a judicial reapportionment, a new census may show that the plan impinges on the rights of minorities to participate in the political process; when this is the case, it is the duty of the court to find it constitutionally unacceptable, whatever its source. See, e. g., Kirksey v. Board of Supervisors, supra, 554 F.2d at 142-43; Ferguson v. Winn Parish Police Jury, 5 Cir. 1976, 528 F.2d 592, 597-99.

A challenge to the constitutionality of a court-ordered reapportionment plan is not, in either case, precluded by principles of res judicata or collateral estoppel. It has long been established that res judicata is no defense where, between the first and second suits, there has been an intervening change in the law or modification of significant facts creating new legal conditions. See, e. g., Commissioner of Internal Revenue v. Sunnen, 1948, 333 U.S. 591, 599-602, 68 S.Ct. 715, 720-21, 92 L.Ed. 898, 906-08; State Farm Mutual Automobile Insurance Co. v. Duel, 1945, 324 U.S. 154, 162, 65 S.Ct. 573, 577, 89 L.Ed. 812, 819. In these cases, the operation of the preclusion doctrines would result in unequal treatment of similarly situated individuals, some of whom have the misfortune to have sought legal redress at an earlier phase of legal developments.

Such inequity becomes particularly intolerable when, as here, constitutional rights are involved. This court has thus been unwilling to bar subsequent challenges to reapportionment schemes, seemingly constitutional when instituted by the court, but apparently inadequate under the rapidly changing jurisprudence in this area. See, e. g., Parnell v. Rapides Parish School Board, 5 Cir. 1977, 563 F.2d 180, 185; Moch v. East Baton Rouge Parish School Board, 5 Cir. 1977, 548 F.2d 594, 598, Cert. denied, 1977, 434 U.S. 859, 98 S.Ct. 183, 54 L.Ed.2d 132. Cf. Christian v. Jemison, 5 Cir. 1962, 303 F.2d 52, Cert. denied, 1962, 371 U.S. 920, 83 S.Ct. 287, 9 L.Ed.2d 229. As Judge Wisdom wrote in Parnell v. Rapides Parish School Board, supra, 563 F.2d at 185, "Faced with changing law, courts hearing questions of constitutional right cannot be limited by res judicata. If they were, the Constitution would be applied differently in different locations."

The plaintiffs' contentions are not articulated clearly either in their complaint or in their brief. The 1972 court order was based on the 1970 census. No error in the facts on which the court acted is alleged, nor do the plaintiffs contend that there has been a change in the parish population sufficiently momentous to warrant intra-decadal reapportionment. Moreover, the plaintiffs...