Velasquez v. City of Abilene, Tex.

• Decision Date: 02 March 1984
• Docket Number: No. 82-1630,82-1630
• Citation: 725 F.2d 1017
• Parties: Maria VELASQUEZ, Isaiah Moreland, Amelia Aguirre, Ben Aguirre, and John McCowan, Individually and on behalf of all Black and Mexican-American Citizens of the City of Abilene, Texas, Plaintiffs-Appellants, v. The CITY OF ABILENE, TEXAS, E. Hall, B. Proctor, K. Webster, L.D. Hilton, J. Bridges, A.E. Fogle, Jr., and J. Rodriguez, the Mayor and City Councilmen of the City of Abilene, Texas, all in their official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1017

725 F.2d 1017

Maria VELASQUEZ, Isaiah Moreland, Amelia Aguirre, Ben Aguirre, and John McCowan, Individually and on behalf of all Black and Mexican-American Citizens of the City of Abilene Texas, Plaintiffs-Appellants, v. The CITY OF ABILENE, TEXAS, E. Hall, B. Proctor, K. Webster L.D. Hilton, J. Bridges, A.E. Fogle, Jr., and J. Rodriguez the Mayor and City Councilmen of the City of Abilene, Texas all in their official capacities, Defendants-Appellees.

No. 82-1630.

United States Court of Appeals, Fifth Circuit.

March 2, 1984.

William L. Garrett, Dallas, Tex., Gale Patterson, Fort Worth, Tex., for plaintiffs-appellants.

Harvey Cargill, Jr., City Atty., Gary Landers, John T. Patterson, Karen L. Anderson, Asst. City Attys., Abilene, Tex., for defendants-appellees.

Appeals from the United States District Court for the Northern District of Texas.

Before GARZA, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

GARZA, Circuit Judge:

We have before us an appeal by plaintiffs-appellants (Blacks and Mexican-Americans) from the denial of their petition for declaratory judgment and other relief alleging that the at-large election system for selection of Abilene City Council members violates the Fourteenth and Fifteenth Amendments, as well as 42 U.S.C. Secs. 1971, 1973, 1983 and 1988. The trial was to the court, which made extensive findings in a memorandum opinion. The City of Abilene cross-appeals from the denial of its motion for attorneys fees.

Abilene was organized as a city in 1885. From 1890 to 1892 aldermen were elected at-large. In 1893 and 1894, at the same time that the Populist Party appeared in Taylor County challenging the democrats, ward elections were held. After the Texas Attorney General ruled that ward elections were unconstitutional and a Texas court agreed, and after the Texas legislature had passed an act requiring city-wide elections, Abilene reverted to at-large elections. The city adopted a home rule charter in 1911, continuing the at-large election system. In 1962 Abilene adopted its present charter, continuing an at-large election scheme and also adding a majority vote requirement.

Under the present at-large system there are six (6) councilmen and a mayor. The councilmen each run for a specific seat and must win by a majority vote. Elections are staggered, with two (2) councilmen elected each year and the mayor every third year. Three councilmen must live on the north side of the city, three on the south side, and the mayor may reside anywhere within the city.

Blacks make up 6.7 percent of the population of Abilene and Mexican-Americans constitute 12.6 percent. Both groups are concentrated in one area. Under the plaintiffs' proposed election system, minorities would constitute 48.3 percent of the population of one district. One Black and two Mexican-Americans have been elected to the council since 1973. All three were sponsored by the Citizens for Better Government, a white-anglo dominated slating organization which exercises nearly complete control over Abilene City politics through its endorsement and support of candidates. The Citizens for Better Government, CBG hereafter, has had a success rate of 92.5 percent since 1966 and 100 percent since 1974. The record shows that no independent Black or Mexican-American has ever been elected, although several have run unsuccessfully.

The minority voters have alleged that the at-large system of elections unconstitutionally dilutes their voting strength. Such dilution is said to be caused by their lack of access to the political system, the lack of responsiveness of the city to their particularized needs, the state policy favoring multi-member districts, and the continuing effects of general and official racial discrimination. They also allege that the structural devices of large voting districts lacking a minority vote and an anti-single shot voting requirement, and a modified district residency voting requirement, enhance the opportunity for their votes to be diluted.

Appellants also allege that while it is true that one Black and two Mexican-Americans have been elected to the council since 1973, all three were sponsored by CBG and those elected were mere tokens put forward by a slating organization in which minorities have no real influence under the current system.

The court below concluded that there was no invidious purpose behind the adoption of the at-large election scheme at any of the dates of its adoption. The trial court examined the evidence according to the Zimmer factors, Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973), aff'd on other grounds sub nom., East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), to determine if there was sufficient circumstantial evidence to demonstrate an invidious purpose behind the maintenance of the system. It concluded there was no such invidious purpose. Finally, the court found that although the Voting Rights Act amendments of 1982, 42 U.S.C.A. Sec. 1973 (West Supp.1983), abolished any necessity to prove a discriminatory purpose in order to establish a violation, the at-large election scheme in Abilene did not have a discriminatory effect.

Appellants' principal attacks on the judgment of dismissal by the court below are: (1) that the trial court improperly decided the case upon constitutional grounds when it could have decided the same on statutory grounds alone; (2) that the trial court failed to make detailed findings of fact in its resolution of the minority voters' Voting Rights Act claim, as required by Rule 52(a) F.R.C.P.; and (3) that the trial court did not use the correct standard of proof to decide that there was no violation of the Voting Rights Act.

Plaintiffs-appellants' argument that the trial court improperly decided the case upon constitutional grounds is unmeritorious for a variety of reasons. First, plaintiffs have not shown that the trial court could properly have decided the case on statutory grounds alone. Second, plaintiffs' complaint included allegations of constitutional violations as well as statutory violations; plaintiffs cannot now be heard to complain that the trial judge addressed those allegations. Finally, in voting dilution cases many of the questions asked to determine whether there has been a statutory violation are also asked when a constitutional violation claim is evaluated. We see no reason why in voting dilution cases, in light of the interrelated standards, a trial court cannot consider both the constitutional and statutory claims together. Plaintiffs-appellants' first attack on the judgment below must therefore be rejected.

After reading the record we find merit in plaintiffs-appellants' charge that the trial court failed to make detailed findings of fact in its resolution of their claim that the Voting Rights Act, as amended in 1982, was violated.

Although the trial court is not required to recount and discuss every bit of evidence offered to it, it is required to discuss all the substantial evidence contrary to its opinion. The trial court offered a fairly thorough analysis, but did not discuss all the substantial contrary evidence. In Cross v. Baxter, 604 F.2d 875 (5th Cir.1979), vacated on other grounds, 704 F.2d 143 (5th Cir.1983), this circuit discussed the need for detailed findings of fact in voting dilution cases:

F.R.C.P. 52(a) requires the district court to make findings of fact and conclusions of law in deciding all cases tried without a jury, and these must be sufficiently detailed that the court of appeals can ascertain the factual and legal basis for the district court's ultimate conclusion. Because the resolution of a voting dilution claim requires close analysis of unusually complex factual patterns, and because the decision of such a case has the potential for serious interference with state functions, we have strictly adhered to the rule 52(a) requirements in voting dilution cases and have required district courts to explain with particularity their reasoning and the subsidiary factual conclusions underlying their reasoning. '[C]onclusory findings as to each of the Zimmer criteria are no more helpful than an overall conclusory finding of dilution. The factual predicates for such conclusions must be clearly stated by the trial court.' Perhaps in no other area of the law is as much specificity in reasoning and fact finding required, as shown by our frequent remands of voting dilution cases to district courts. As a general rule, if the district court reaches a conclusion on one of the Zimmer inquiries without discussing substantial relevant contrary evidence, the requirements of rule 52 have not been met and a remand may be called for if the court's conclusions on the other Zimmer inquiries are not sufficient to support a judgment.

Id. at 879 (citations omitted).

A close reading of the briefs submitted by the parties indicates that none of the law on any issue in this case is in real controversy. Both the constitutional and statutory claims of the plaintiffs below involve extraordinary fact-oriented issues. The district court's factual findings in voting dilution cases represent "a blend of history and an intensely local appraisal of the design and impact of the ... multimember district in the light of past and present reality, political and otherwise." White v. Regester, 412 U.S. 755, 769-70, 93 S.Ct. 2332, 2341, 37 L.Ed.2d 314 (1973). The Supreme Court has squarely held that the finding of intentional discrimination necessary in voting dilution cases under the Fourteenth Amendment, and by implication under the Fifteenth Amendment, is factual, governed by Rule 52's clearly erroneous standard. Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982). We have no doubt that the finding of discriminatory effect or result under the Voting Rights Act amendments of 1982 is also governed by the clearly erroneous standard, and while appellants try to argue that...