Ballas v. Symm

• Decision Date: 13 November 1972
• Docket Number: Civ. A. No. 72-H-1377.
• Citation: 351 F. Supp. 876
• Parties: Charles R. BALLAS, Plaintiff, v. LeRoy E. SYMM, Defendant.
• Court: U.S. District Court — Southern District of Texas

351 F. Supp. 876

Charles R. BALLAS, Plaintiff, v. LeRoy E. SYMM, Defendant.

Civ. A. No. 72-H-1377.

United States District Court, S. D. Texas, Houston Division.

November 13, 1972.

COPYRIGHT MATERIAL OMITTED

Michael Anthony Maness, of Maley & Friedman, Houston, Tex., for plaintiff.

Will Sears and David F. Beale, of Sears & Burns, Houston, Tex., for defendant.

SUPPLEMENTAL AND AMENDED MEMORANDUM AND ORDER

NOEL, District Judge.

On October 12, 1972, plaintiff Charles R. Ballas, a white male student whose parents reside in McKeesport, Pennsylvania, filed his complaint alleging violations of his constitutional and statutory civil rights by defendant LeRoy E. Symm, the Tax Assessor-Collector of Waller County, Texas. In particular, plaintiff Ballas individually complains of defendant Symm's practice of requiring students who seek to register as voters in Waller County to complete what he denominates as a Questionnaire Pertaining to Residence, referred to herein as questionnaire.

Defendant, in the performance of his statutory duties, utilizes these questionnaires as an aid in determining whether an applicant is a bona fide resident of Waller County. Plaintiff alleges that this practice, which is not required of non-students, is a constitutionally impermissible deprivation of his federal civil rights in contravention of the Fourteenth Amendment, the Civil Rights Act of 1965, 42 U.S.C. § 1971, and the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1988. Plaintiff also contends that he is undoubtedly a bona fide resident of Waller County, Texas, and should be registered to vote there.

In addition to his individual claim, plaintiff seeks to maintain his action as a class action, F.R.Civ.P. 23, on behalf of a class defined as "all persons who are qualified electors under the Constitution and laws of the State of Texas and who, being so qualified, made application to defendant for a voter registration certificate in accordance with the laws of the State of Texas but were denied such certificate because in determining their ineligibility for such a certificate, defendant (or other authorized public employees or officials acting at defendant's direction or instruction) applied to such persons any standard, practice or procedure different from the standards, practices or procedures applied under color of law to other individuals within Waller County, Texas who have been found by defendant to be qualified to vote in that county." (Plaintiff's Complaint, p. 2).

Plaintiff seeks injunctive and declaratory relief, in particular:

(1) an order declaring the case to be a proper class action F.R.Civ.P. 23(c) (1) ;

(2) a declaratory judgment decreeing that defendant's acts have deprived plaintiffs of rights, privileges and immunities;

(3) a preliminary and permanent mandatory injunction directing defendant immediately to issue to each plaintiff a valid Texas voter registration certificate;

(4) an award of $1,000 in attorneys fees; and

(5) general relief, to wit, "such further relief as the Court may deem just and equitable under the circumstances."

At pretrial hearing held October 24, the Court heard testimony of plaintiff relative to his claim of residency in Waller County. At that time defendant interposed a motion to dismiss on several grounds. Defendant's motion was later reduced to writing, supported by brief, and has been carried with the case to this point.

On October 30, the Court held a hearing on plaintiff's request for a preliminary injunction. Plaintiff presented testimony from the defendant, Deputy Registrar of Waller County Eristus Sams, and the plaintiff. At hearing the Court suggested that the case was not properly a class action. The Court also suggested that since state court relief was appropriate and available to individual applicants denied registration, a federal court should abstain from decision. Finally, the Court expressed the view that the individual plaintiff, Ballas, presented an appealing claim to bona fide residency.

On November 3, testimony resumed with the defendant presenting his case. Mrs. Linda Wallingford, a deputy county clerk, the Honorable Jack Taylor, Waller County Judge, and defendant Symm testified for defendant. At the close of testimony, the Court announced it would render its decision in open court on Monday, November 6, 1972, 9:30 a. m.

1. Procedures Regarding Movement of the Case

In his pleadings and motions, and orally at each of the hearings, plaintiff through his attorney in charge, has expressed impatience and dissatisfaction with the movement of the case. The attorney is a young, inexperienced lawyer, not heretofore admitted to practice in this Court. The latter fact did not become known to the Court at or before the pretrial hearing of October 24, although under the requirements of Rule 1.E. of the Local Rules of this Court, the attorney should have obtained leave of the Court to appear before filing plaintiff's complaint. For the purposes of this case only, the attorney was admitted at the hearing on October 30.

Certain findings of the Court concerning certain procedural matters are contained in a separate writing prepared and filed on November 6, 1972. This was done in order to shorten the text of this Supplemental and Amended Memorandum and Order for publication. They are incorporated herein and made a part hereof, from which I turn to the dispositive aspects of the case.

2. The Class Action

An important procedural question is whether the case is properly a class action within the meaning of F.R.Civ.P. 23. Plaintiff focuses on the questionnaire used by defendant as an aid for determining residency and views its constitutionality as the dispositive issue, and thus urges the "questions of law or fact common to the class." F.R.Civ.P. 23(a)(2). Defendant views the issue as one of determining on an individual basis the residence of each applicant for registration and therefore as to each member of the class as such is defined by plaintiff. In that regard, defendant urges that the facts surrounding the residency of each applicant differ, which prevents the presence of common questions of fact requisite to maintenance of the case as a class action. Manard v. Miller, 53 F.R.D. 610 (E.D.Va.1971) aff'd 405 U.S. 982, 92 S.Ct. 1253, 31 L. Ed.2d 449 (1971).

Two factors prevent the Court from considering this case an appropriate class action. First, because of the proximity of the election, the requested relief could not be granted to the entire class at this late date. The case is therefore moot as far as the entire class is concerned. Secondly, the constitutionality of the questionnaire and the supporting statute, Texas Election Code, Art. 5.08(k), V.A.T.S., the issues common to all class members, have already been decided by this Court in Wilson v. Symm, 341 F.Supp. 8 (S.D.Tex.1972). That decision is clearly res judicata to at least six members of the proposed class here.

A. Class Action Barred by Mootness

The first ground upon which the Court must decline to entertain a class action in this case is mootness. Defendant strongly urges that plaintiff's claim is mooted because absentee voting began on October 18. Defendant claims that insufficient time remains to provide the relief requested for the plaintiff class.

Mootness is a very practical concept. Events may transpire resolving a dispute such that a judicial decision will not affect the position of the parties. Such cases present no justiciable controversy and must be dismissed. E. g., Munoz v. Amador, 340 F.2d 590 (5th Cir. 1965).

The test for mootness is whether the class can be given the substantial relief sought for it by plaintiff. If the requested relief for the class cannot be provided by a decision favorable to plaintiff, the case must be considered moot. Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895).

Plaintiff's claim would unquestionably be mooted had the November 7 election, the last election of the year, already taken place. United Public Workers v. Mitchell, 330 U.S. 75, 88, 67 S.Ct. 556, 91 L.Ed. 754 (1946). Defendant contends that with the start of absentee balloting, the election is and has already begun, as a result of which plaintiff's claims are moot. Skelton v. Yates, 131 Tex. 620, 119 S.W.2d 91 (1938); Sterling v. Ferguson, 122 Tex. 122, 53 S.W. 2d 753 (1932).

The Texas Election Code is a comprehensive, statutory enactment which applies to all elections and primaries held in the state.

Under the Code, the Tax Assessor-Collector and the County Clerk have extensive functions which must be performed before an election day. The Tax Assessor-Collector must prepare current lists of voters at least 20 days before the election and again four days before election. Article 5.19a. In addition to the alphabetical master list, he must provide each of the thirteen precinct judges with lists of the voters in their respective precincts. Finally, the defendant Registrar must maintain current records of deaths, felony convictions, and adjudications of incompetency, Article 5.18b, subd. 5.

The work of the County Clerk begins upon receipt of the voter lists. The Clerk must order the ballots from the printer. From time of order, it takes a minimum of ten days for the ballots to be printed and delivered to the County Clerk. After receipt, the Clerk must check them for accuracy and count them. The Clerk must prorate the ballots among the various precincts. Finally, three days before election day, the Clerk must cause the ballots and election supplies to be delivered to the precinct judges by the County Sheriff.

The population of Waller County is not large. Only 6,845 ballots have been ordered for this general election. The staffs of the County Clerk and the Tax Assessor-Collector are small. Experienced volunteers in sufficient numbers are not available for registering and providing ballots for 1,500 to 2,500 additional voters in a short period of time.

In view of the above facts, ...