Brooks v. Georgia State Bd. of Elections

• Decision Date: 17 July 1995
• Docket Number: No. 94-8398,94-8398
• Citation: 59 F.3d 1114
• Parties: Tyrone BROOKS, Lanette Stanley, Billy McKinney, Joe Beasley, Venus E. Holmes, Michael Robinson, Edward Brown, John White, Mary Young-Cummings, Mary Black, Willie Mays, William Young, Deanie Frazier, G.L. Avery, Rev., Rev. Dr. William Howell, Plaintiffs-Counter-Defendants-Appellants, Donale E. Cheeks, Emil Klingenfus, Inez Wylds, Richard Dyson, Vince Robertson, Intervenors-Plaintiffs, Cross-Claimants, v. GEORGIA STATE BOARD OF ELECTIONS, Max Cleland, Secretary of State and Chairman of the Georgia State Board of Elections, Defendants-Cross-Defendants, Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1114

59 F.3d 1114

Tyrone BROOKS, Lanette Stanley, Billy McKinney, Joe Beasley,

Venus E. Holmes, Michael Robinson, Edward Brown, John White,

Mary Young-Cummings, Mary Black, Willie Mays, William Young,

Deanie Frazier, G.L. Avery, Rev., Rev. Dr. William Howell,

Plaintiffs-Counter-Defendants-Appellants,

Donale E. Cheeks, Emil Klingenfus, Inez Wylds, Richard

Dyson, Vince Robertson, Intervenors-Plaintiffs, Cross-Claimants, v. GEORGIA STATE BOARD OF ELECTIONS, Max Cleland, Secretary of

State and Chairman of the Georgia State Board of

Elections, Defendants-Cross-Defendants, Appellees.

No. 94-8398.

United States Court of Appeals, Eleventh Circuit.

July 17, 1995.

Laughlin McDonald, Neil Bradley, Mary Wyckoff, ACLU, Atlanta, GA, for appellants.

David Frank Walbert, Walbert & Herman, Atlanta, GA, for appellees.

Carol Atha Cosgrove, Atlanta, GA, for Ga. State Bd. and Max Cleland.

Charles L. Wilkinson, III, Stanley C. House, Augusta, GA, for Donald Cheeks, et al.

Randal Mangham, Randal A. Mangham, P.C., Atlanta, GA, for other interested parties.

Appeal from the United States District Court for the Southern District of Georgia.

Before DUBINA, Circuit Judge, RONEY and ESCHBACH, ^* Senior Circuit Judges.

DUBINA, Circuit Judge:

Plaintiffs/Appellants, a group of black registered voters in the State of Georgia ("Plaintiffs"), appeal the district court's order denying their motion for approval of a proposed settlement agreement with Defendants/Appellees, the Georgia State Board of Elections et al. ("Defendants" or "the state"), in this action under Section 2 of the Voting Rights Act of 1965, 42 U.S.C. Sec. 1973c (1988). The settlement agreement is opposed by certain intervenors who argue that the terms of the agreement violate their state and federal constitutional rights. Because we conclude that we cannot give any meaningful relief in this case, we dismiss this appeal as moot and remand the case to the district court for further proceedings.

I.

Plaintiffs brought this action against the Defendant state agencies and officers in 1988, alleging that the method of electing judges of the state court, superior court, and court of appeals and justices of the supreme court in Georgia ¹ violates Section 2 of the Voting Rights Act ("VRA") and the United States Constitution. Plaintiffs also claimed that superior court judgeships and circuit Pursuant to Section 5, a three-judge panel ("the Panel") was convened. In December 1989, the Panel held that Section 5 applied to judicial elections, that the Georgia electoral scheme has the potential for discriminating against minority voters, and that the State of Georgia failed to obtain the required preclearance for numerous changes to their electoral system. Brooks v. State Bd. of Elections, 775 F.Supp. 1470, 1484 (S.D.Ga.1989), aff'd, 498 U.S. 916, 111 S.Ct. 288, 112 L.Ed.2d 243 (1990). Consequently, the Panel enjoined further elections or appointments to judicial positions that had not been precleared, but allowed incumbents to serve out their terms. Id. at 1484. ²

configurations that had been enacted by the Georgia legislature prior to November 1, 1964, required federal approval pursuant to Section 5 of the VRA.

On June 17, 1992, Plaintiffs and Defendants reached a proposed settlement agreement. The agreement, presented to the district court in the form of a consent decree, provided, inter alia, that:

(1) the Governor will hereafter appoint all judges in Georgia; (2) appointed judges will thereafter be subject only to retention elections; (3) by the end of 1994 there will be at least twenty-five black superior court judges and five additional blacks will be appointed to either the state court or the superior court; (4) in order to realize these numerical requirements, a new category of judgeships, "State Assignment Superior Court Judgeships" may be created and filled by black candidates to serve by assignment in any of the state's judicial circuits; and (5) any disputes that arise under this system in the future will be overseen by Senior District Judge Anthony A. Alaimo.

Brooks v. State Bd. of Elections, 848 F.Supp. 1548, 1551 (S.D.Ga.1994) (citing Consent Decree at 10-14). ³

On August 30, 1993, the Attorney General of the United States ("Attorney General") approved the proposed settlement, preclearing the changes to the Georgia system of judicial elections provided for in the settlement agreement. The Attorney General's approval was conditioned upon approval of the agreement by the district court and based on assurances by the Georgia Attorney General that the terms of the plan do not violate the Georgia Constitution. The Attorney General expressed concern, however, that certain provisions of the plan may be contrary to the United States Supreme Court's decision in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989).

In November of 1993, the Panel denied a motion to allow interim gubernatorial appointments to certain judicial posts pending a final decision by the district court on the proposed settlement agreement. Importantly, the Panel also severed the Section 5 and Section 2 portions of the case, retaining control over the Section 5 claims and directing that the Section 2 claims be addressed by the district court. ⁴

On November 22, 1993, the district court certified a Plaintiff class consisting of all present and future black registered voters in Georgia, ordering that notice be given to absent class members pursuant to Fed.R.Civ.P. 23(e). On January 12, 1994, the court held a fairness hearing, at which the court heard evidence and argument from the Plaintiff class representatives, the Defendants, the intervenors, and several objectors.

Finally, on March 7, 1994, the district court entered an order denying the joint motion of Plaintiffs and Defendants seeking

                approval of the settlement agreement.  The court first noted that there had been no determination to date, and no admission by Defendants, that the current Georgia judicial election system violates Section 2 or the federal Constitution.  The court reasoned that absent such a finding, it would be inappropriate to force a change upon Georgia's citizens that would reduce their rights to elect public officials of their choice.  Brooks, 848 F.Supp. at 1577.   Furthermore, the court determined that certain provisions of the settlement would violate Georgia law.  Most notably, the court found that a retention election system would not satisfy the Georgia constitutional requirement that judges be elected.  Id.  Moreover, the court held that some provisions of the settlement would violate the Equal Protection Clause of the Fourteenth Amendment, finding that the provisions requiring the appointment of thirty black judges by December 31, 1994, and establishing state assignment superior court judgeships were race-conscious measures that were not narrowly tailored to achieve a compelling state interest.  Id.  In sum, the court concluded that the settlement agreement was not "fair, adequate, reasonable and legal" under the "totality of [the] circumstances."  Id. at 1578.   Plaintiffs then perfected this appeal pursuant to 28 U.S.C. Sec. 1292(a)(1). 5
                

II.

We first must address the threshold jurisdictional question of whether this appeal is moot. Defendants suggest in their brief that the issues raised by Plaintiffs "may be moot." Appellee's Brief at 21. In response, Plaintiffs emphasize that "[t]he state has not argued that the case is in fact moot." Appellants' Reply Brief at 2. Regardless of whether the state has argued mootness, however, "[i]t is incumbent upon this court to consider issues of mootness sua sponte and, absent an applicable exception to the mootness doctrine, to dismiss any appeal that no longer presents a viable case or controversy." Pacific Ins. Co. v. General Development Corp., 28 F.3d 1093, 1096 (11th Cir.1994).

Defendants point out that the proposed settlement agreement requires the state to add approximately twenty black superior court and/or state court judges to the bench by December 31, 1994, bringing the total number of black trial judges to thirty. Subsequent to January 1, 1995, the Governor of the State of Georgia is to make judicial appointments without regard to race, color, or ethnic origin. Obviously, because the deadline for the appointment of these black judges has passed, it is impossible for the state to comply with the "thirty-black-judge-minimum" requirement. Moreover, any race-conscious appointments made at this late date would directly contravene the provision in the agreement requiring that appointments made subsequent to January 1, 1995, be "colorblind." Thus, even if we were to reverse the district court's order rejecting the settlement agreement, the agreement could not be implemented under its present terms.

Under Article III of the United States Constitution, federal courts may adjudicate only actual, ongoing cases or controversies. U.S. Const. art. III; Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). "It has long been settled that a federal court has no authority 'to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.' " Church of Scientology of California v. United States, --- U.S. ----, ----, 113 S.Ct. 447, 449, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293 (1895)). "For that reason, if an event occurs while a case is pending on appeal that makes it impossible for the court to grant 'any effectual relief whatever' to a prevailing party, the appeal must be dismissed." Id.; see also Ethredge Research reveals no case law on mootness presenting the exact situation in the present appeal; that is, an appeal from a district court's rejection of a settlement agreement with specific deadlines that have expired. In an...