Romero v. City of Pomona

• Citation: 883 F.2d 1418
• Decision Date: 24 August 1989
• Docket Number: 87-6517 and 88-5688,Nos. 87-6326,s. 87-6326
• Parties: Dr. Gloria J. ROMERO, Willie E. White, Joseph Lee Duncan, Tomas Ursua, and Harold Webb, Plaintiffs-Appellants/Cross-Appellees, v. The CITY OF POMONA; G. Stanton Selby, Mayor of the City of Pomona; Vernon M. Weigand, Councilman District 1; E.J. Gualding, Councilman District 2; Donna Smith, Councilperson District 3; Mark Nymeyer, Councilman District 4; In Their Official Capacities, Defendants-Appellees/Cross-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1418

883 F.2d 1418

Dr. Gloria J. ROMERO, Willie E. White, Joseph Lee Duncan, Tomas Ursua, and Harold Webb, Plaintiffs-Appellants/Cross-Appellees, v. The CITY OF POMONA; G. Stanton Selby, Mayor of the City of

Pomona; Vernon M. Weigand, Councilman District 1; E.J.

Gualding, Councilman District 2; Donna Smith, Councilperson

District 3; Mark Nymeyer, Councilman District 4; In Their

Official Capacities, Defendants-Appellees/Cross-Appellants.

Nos. 87-6326, 87-6517 and 88-5688.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 3, 1988.

Decided Aug. 24, 1989.

Rolando L. Rios, San Antonio, Tex., William Garrett, Dallas, Tex., Richard P. Fajardo and E. Richard Larson, Los Angeles, Cal., for plaintiffs-appellants/cross-appellees.

John E. McDermott and Erich R. Luschei, Los Angeles, Cal., for defendants-appellees/cross-appellants.

Appeal from the United States District Court for the Central District of California.

Before FLETCHER, ALARCON and KOZINSKI, Circuit Judges.

KOZINSKI, Circuit Judge:

I. Background

The plaintiffs, Gloria J. Romero, Willie E. White, Joseph Lee Duncan, Tomas Ursua and Harold Webb, eligible voters and residents of the City of Pomona, California, allege that that city's at-large districting plan impermissibly dilutes the right of black and Hispanic voters to elect candidates of their choice to the Pomona City Council.

These facts are not in dispute: Since its incorporation in 1888, Pomona has employed an at-large election system for choosing its mayor and four city council members. Under its 1911 Charter, the city is divided into four electoral districts. A candidate for city council competes only against other candidates residing in the same district, but must be elected by a majority of the voters city-wide; if no candidate in a district election achieves a majority, there is a runoff election between the two candidates who receive the most votes in the primary election. The mayor, who serves for two years and is also a member of the city council, is elected in a city-wide election and may reside in any district. City council members hold office for staggered four-year terms. Thus, the voters of Pomona elect the mayor and two city council members every other year.

As of the time the judgment below was entered, two Hispanics have been elected to the Pomona City Council: the first in 1967; the second in 1973 and again in 1977. See Romero v. City of Pomona, 665 F.Supp. 853, 856 (C.D.Cal.1987). ¹ No black has served on the city council, although eleven have run for office in fourteen campaigns. According to the 1980 census, the City of Pomona's population is 92,742, of which 30.5% or 28,287 have Spanish surnames, 18.6% or 17,250 are black, and 46.7% or 43,318 are white. According to a 1984 update, the population total increased to 97,998, of whom 30.5% were Spanish-surnamed and 19% were black. As of 1984, blacks and Hispanics together made up 49.5% of Pomona's population.

Plaintiffs brought this action under section 2 of the Voting Rights Act of 1965, 42 U.S.C. Sec. 1973 et seq. (as amended June 29, 1982), seeking: (1) a declaration that the at-large system of electing members of the Pomona City Council unlawfully dilutes Hispanic and black voting strength; and (2) an injunction against future city council elections under the at-large system and requiring the implementation of a plan whereby city council members would be elected from wards or single districts.

The case proceeded to trial but, following plaintiffs' case-in-chief, the district court granted defendants' motion for involuntary dismissal under Federal Rule of Civil Procedure 41(b). Applying Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), decided after plaintiffs' presentation of their case-in-chief, the district court found that plaintiffs failed to establish any of the three threshold requirements for proving a violation of section 2 of the Voting Rights Act: (1) geographical compactness; (2) minority group cohesion; and (3) bloc voting by the majority. More specifically, the district court found that plaintiffs failed to prove that the black and Hispanic voters of Pomona comprised a politically cohesive group. Relying on exit polls of the March 1985 city council primary, the district court found that a majority of black voters supported the white opponents of the Hispanic candidate for City Council District 3, while a majority of Hispanic voters supported the white opponents of Joseph Duncan, the black candidate for City Council District 2. Romero, 665 F.Supp. at 858. The district court concluded that, in the absence of significant cross-racial electoral support, blacks and Hispanics could not be considered a single, politically cohesive group. Id. The district court also found that "[a]fter taking into consideration factors such as eligible voting age and citizenship, the evidence conclusively establishes that neither hispanics nor blacks can constitute a majority of the voters of any single member district." Id.

Perhaps out of an abundance of caution, the district court went on to apply the so-called "Senate" or "Zimmer" factors, see Thornburg, 478 U.S. at 36-37, 106 S.Ct. at 2758-59, and concluded that "the City has not used any of the enumerated voting practices or procedures to discriminate against hispanic or black voters." Romero, 665 F.Supp. at 868. ²

Having prevailed on the merits, defendants moved for retaxing of costs for the production of exhibits under 28 U.S.C. Sec. 1920(4) (1982) and Local Rule 16.4.17(a). The district court denied this motion, along with defendants' motion for attorney's fees under Rule 11, 28 U.S.C. Sec. 1927 (1982) and 42 U.S.C. Secs. 1973l (e), 1988 (1982).

On appeal, plaintiffs argue that the Supreme Court's opinion in Thornburg significantly altered the requirements for proving a section 2 vote dilution claim. They suggest that the district court should have allowed them to present additional evidence made relevant under Thornburg. On the merits, they contend that the district court misapplied Thornburg by measuring geographic compactness by comparing eligible voters, rather than raw population totals, and by measuring the political cohesiveness of black and Hispanic voters by determining whether blacks and Hispanics voted in tandem, rather than determining whether the two groups voted differently from whites. Third, plaintiffs challenge the district court's failure to make detailed findings as to the Senate factors and the district court's "verbatim" and "wholesale" adoption of defendants' proposed findings of fact. Appellants' Opening Brief at 36, 37. Finally, they object to the district court's refusal of class certification. Defendants appeal the district court's denial of certain costs and attorney's fees. ³

II. Refusal to Reopen

Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), which interpreted the 1982 amendments to the Voting Rights Act, held that a violation may be proved "by a showing of discriminatory effect alone." Id. at 35, 106 S.Ct. at 2758. ⁴ In order to prove that the multidistrict voting scheme impermissibly diluted minority voting strength, plaintiffs had to show that "a bloc voting majority [is] usually ... able to defeat candidates supported by a politically cohesive, geographically insular minority group." Id. 478 U.S. at 49, 106 S.Ct. at 2766. The Court noted seven factors, the presence of which would tend to establish an impermissible scheme. ⁵ As a preliminary matter, however, plaintiffs had to show the existence of three threshold elements: (1) geographical compactness, (2) minority political cohesion, and (3) majority bloc voting. Id. at 50-51, 106 S.Ct. at 2766. As noted, the district court dismissed plaintiffs' case because it found they had failed to prove any of these elements.

Plaintiffs argue that, had they been given the opportunity to reopen, they would have presented further evidence on three issues: (1) the feasibility of redrawing city council district lines to create a single district in Pomona with a majority of black and Hispanic voters; (2) the political cohesiveness of minority voters; and (3) the impact of Pomona's at-large city council election system on the ability of minority voters to "influence" the election of preferred candidates.

"A motion to reopen for additional proof is addressed to the sound discretion of the trial judge." Contempo Metal Furn. Co. v. East Texas Motor Freight Lines, 661 F.2d 761, 767 (9th Cir.1981); accord United States v. Kelm, 827 F.2d 1319, 1323 (9th Cir.1987). Although a change of law may warrant reopening a case where plaintiff wishes to present evidence pertinent to the new legal standard, a change that does not "substantially affect" the burden of proof and was reasonably anticipated by existing law will not warrant reopening. See Skehan v. Board of Trustees, 590 F.2d 470, 479 (3rd Cir.1978), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979); 6A J. Moore, J. Lucas & G. Grotheer, Jr., Moore's Federal Practice p 59.04, at 33-34 (2d ed. 1987). Further, only "reasonably genuine surprise," Moylan v. Siciliano, 292 F.2d 704, 705 (9th Cir.1961); see also Air et Chaleur, S.A. v. Janeway, 757 F.2d 489, 495 (2d Cir.1985), combined with a reasonably specific description of the additional evidence made relevant by the change in the law, cf. Berns v. Pan American World Airways, 667 F.2d 826, 829 (9th Cir.1982), will justify reopening.

We agree with the district court that Thornburg did not announce such a fundamental, unanticipated or sweeping change in the law as to warrant reopening plaintiffs' case. First, Thornburg did not substantially alter plaintiffs' burden of proof; it merely explained which of the Senate factors were most relevant in proving a section 2 violation. Two of the "necessary preconditions," 478 U.S. at 50, 106 S.Ct. at 2766, discussed in Thornburg (minority group cohesion and majority bloc voting)...