Black Voters v. McDonough, CA 75-812-T.

Decision Date06 October 1976
Docket NumberNo. CA 75-812-T.,CA 75-812-T.
PartiesBLACK VOTERS et al., Plaintiffs, v. John J. McDONOUGH et al., Defendants.
CourtU.S. District Court — District of Massachusetts

Roger L. Rice, Cambridge, Mass., Margaret A. Burnham, Burnham, Stern & Shapiro, Boston, Mass., Liza Fitzgerald, Boston Legal Assistance Project, Boston, Mass., for plaintiffs.

Patricia C. Gunn, Asst. Atty. Gen., Boston, Mass., amicus curiae.

Kevin F. Moloney, Asst. Corp. Counsel, City Hall Law Dept., Marilyn Sticklor, Boston, Mass., for defendants.

Kline & Gordon, Joseph A. Gordon, Robert G. Kline, Boston, Mass., Louise Day Hicks, Boston City Council, Boston, Mass., Robert Emmet Dinsmore, Boston, Mass., for Boston School Committee.

TAURO, District Judge.


This is a class action brought by black registered voters of Boston, seeking declaratory and injunctive relief against Boston's Mayor, City Council, School Committee, Election Commissioners and City Clerk.1 The suit challenges the at-large voting procedure for election of members of the Boston School Committee.2

Plaintiffs claim that, due to a combination of circumstances, the at-large system effectively cancels out, dilutes and minimizes the voting strength of the Boston black community in School Committee elections. This, they say, deprives black residents of constitutional and statutory rights. They seek a declaration to this effect as well as injunctive relief.

The defendants disagree.3 They claim, first of all, that this action is barred by the doctrines of res judicata or collateral estoppel. They also defend on the merits, denying that plaintiffs' voting power has been diluted or that they have been deprived of constitutional or statutory rights by the at-large system.

The court has jurisdiction over this matter under 28 U.S.C. §§ 1343(3) and 1343(4), and 42 U.S.C. §§ 1971(d) and 1973j(f) (The Voting Rights Act). The power of this court to issue injunctive relief is granted by 28 U.S.C. §§ 2201 and 2202. This action arises under 42 U.S.C. §§ 1971, 1973, 1981 and 1983, and the First, Thirteenth, Fourteenth and Fifteenth Amendments of the United States Constitution.

Hearings on the merits in this case consumed thirty days, during which time the court heard testimony from thirty-two witnesses, recorded in some 3400 pages of transcript. More than 200 exhibits were introduced.

Upon review of the evidence and the law, this court holds: 1) that the plaintiffs are not barred from bringing this suit by either res judicata or collateral estoppel and 2) that the deficiencies of the challenged at-large election system do not deprive plaintiffs of any constitutional or statutory right.


On September 9, 1969, a complaint was filed in this district in the case of Owens, et al. v. School Committee of Boston, 304 F.Supp. 1327 (D.Mass.) The plaintiffs in that case alleged that Section 18 of the Boston City Charter, insofar as it provided for the at-large election of School Committee members, violated their constitutional rights. On November 4, 1969, plaintiffs' motion for a preliminary injunction was denied. Owens v. School Committee of Boston, 304 F.Supp. 1327 (D.Mass.1969). Two and a half years later, in an unreported one-sentence order, Judge Ford allowed the defendant School Committee's motion to dismiss for failure to state a claim. Owens v. School Committee of Boston, CA 69-934-F (D.Mass. March 31, 1972). His decision was not appealed. It is this final judgment which the defendants claim bars the present action, either by operation of the doctrine of res judicata or by collateral estoppel.

Three prerequisites control the application of these two doctrines: 1) entry of a final judgment on the merits in the first action; 2) identity of the causes of action adjudicated (res judicata), or identity of the issues fully and fairly litigated (collateral estoppel), and 3) identity or privity of parties in the two actions. 1B J. Moore, Federal Practice ¶ 0.401, at 11 et seq.; Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 99 L.Ed. 1122 (1955); Mendez v. Bowie, 118 F.2d 435, 440 (1st Cir.), cert. denied, 314 U.S. 639, 62 S.Ct. 76, 86 L.Ed. 513 (1941).

Analyzing Owens and the instant case, it is clear that Judge Ford's dismissal for failure to state a claim is a decision on the merits, satisfying the first prerequisite.

While the thrust of the complaint in Owens, as here, was a challenge to the at-large voting system, application of both res judicata and collateral estoppel may be limited when substantial shifts occur in the factual and legal underpinnings of a cause of action. See, e. g., Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975); Whitcomb v. Chavis, 403 U.S. 124, 162-63, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971).4 Important factual and legal developments have occurred during the seven years that have passed since the Owens decision. A 1974 referendum calling for a change in the challenged election procedure was defeated. This court and the Court of Appeals for the First Circuit have determined that there has been official de jure segregation of the Boston public schools,5 and that they are racially imbalanced in violation of state law.6 Boston's school children have been bused as part of a federal court-ordered integration program. Moreover, since Owens, the Supreme Court has substantially clarified the guidelines to be employed by district courts in weighing the merits of challenges to at-large voting systems. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973).

Finally, the parties bringing this action are neither identical to, nor in privity with those in Owens, thus precluding application of either res judicata or collateral estoppel. No class was ever certified in Owens. As a result, the decision binds only the named plaintiffs and those in privity with them. See, e. g., Board of School Commissioners of the City of Indianapolis v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975); Gonzales v. Cassidy, 474 F.2d 67 (5 Cir. 1973); Citizens for Community Action at the Local Level, Inc. v. Ghezzi, 386 F.Supp. 1, 5-6 (W.D.N.Y.1974) vacated on other grounds sub nom. Town of Lockport, New York v. Citizens for Community Action at the Local Level, Inc., 423 U.S. 808, 96 S.Ct. 11, 46 L.Ed.2d 24 (1975); Paddison v. Fidelity Bank, 60 F.R.D. 695, 697 (E.D.Pa.1973).

This court, therefore, is not precluded by the decision in Owens from adjudicating this case on the merits.


Two recent Supreme Court cases present detailed guidelines to be employed in assessing the constitutionality of at-large voting systems, Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971) and White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973).

The plaintiffs in Whitcomb challenged, among other things, the at-large voting system for General Assembly seats in Marion County, Indiana. A three-judge panel determined that the challenged at-large system did violate the constitutional rights of Marion County blacks. In reaching this conclusion, the court found that an identifiable minority population existed within Marion County that had special and unique interests in various areas of substantive law, but whose voting strength had been minimized by a number of factors. One such factor was that the selection of candidates had been controlled by white dominated political parties, seriously limiting the opportunity of blacks to vote for prospective legislators who would be responsive to their needs. The court concluded that redistricting of Marion County was essential to remedy the situation and, further, that reapportionment of the entire state was needed to avoid an imbalance created by the redistricting of Marion County.

The Supreme Court reversed. The Court reemphasized each citizen's inalienable right to participate fully and effectively in the political processes of his or her state, including the election of legislators. Weighing the effect of multi-member districts on this right, the Court reiterated that such districts, though suspect and subject to challenge, are not, per se, unconstitutional.

Multi-member district systems may be subject to challenge where the circumstances of a particular case may "operate to minimize or cancel out the voting strength of racial or political elements of the voting population." . . . But we have insisted that the challenger carry the burden of proving that multi-member districts unconstitutionally operate to dilute or cancel the voting strength of racial or political elements.

Id. 403 U.S. at 143-44, 91 S.Ct. at 1869, 29 L.Ed.2d at 376 Citations omitted.

In coming to the conclusion that there were "major deficiencies" in the lower court's decision, the Supreme Court emphasized certain key factors:

1) The challenged multi-district system was not conceived or operated as a purposeful device to further discrimination.7

2) Absent evidence demonstrating less opportunity for them to participate in the political processes, the election of a disproportionately low number of ghetto residents as legislators, standing alone, did not prove invidious discrimination. Significant to the Court was the absence of any evidence that blacks in Marion County were not allowed to a) register, b) vote, c) choose a political party and participate in its affairs, including the selection of candidates.

3) The plaintiffs had not established that their interests diverged significantly from those of other citizens within the multi-member district, or that the special needs of the ghetto residents had been ignored by the elected representatives.

The Court observed that "the voting power of ghetto residents may have been `cancelled out' as the District Court held, but this seems mere euphemism for political defeat at the polls." Id. 403 U.S. at 153, 91 S.Ct. at 1874.

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