Citizens Com. to Op. Annex. v. City of Lynchburg, Va., Civ. A. No. 75-0009-L.

• Decision Date: 11 August 1975
• Docket Number: Civ. A. No. 75-0009-L.
• Citation: 400 F. Supp. 68
• Parties: CITIZENS COMMITTEE TO OPPOSE ANNEXATION, Plaintiff, v. CITY OF LYNCHBURG, VIRGINIA, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

400 F. Supp. 68

CITIZENS COMMITTEE TO OPPOSE ANNEXATION, Plaintiff, v. CITY OF LYNCHBURG, VIRGINIA, et al., Defendants.

Civ. A. No. 75-0009-L.

United States District Court, W. D. Virginia, Lynchburg Division.

August 11, 1975.

COPYRIGHT MATERIAL OMITTED

J. Leyburn Mosby, Jr., Hugh J. M. Jones, III, Lynchburg, Va., E. A. Prichard, K. Stewart Evans, Jr., George F. Trowbridge, Jr., Boothe, Prichard & Dudley, Fairfax, Va., for plaintiff.

William Phillips, Lynchburg, Va., for the City of Lynchburg.

John S. Davenport, III, William R. Cogar, Mays, Valentine, Davenport & Moore, Richmond, Va., for the City of Lynchburg.

Royston Jester, III, Lynchburg, Va., for Members of the Electoral Board of City of Lynchburg.

E. Bruce Harvey, Rustburg, Va., for Members of Electoral Board of Campbell County.

OPINION and ORDER

TURK, Chief Judge.

The plaintiff Citizens Committee to Oppose Annexation (hereinafter CCOA) brought this action seeking to void and enjoin the enforcement of a state court decree ordering the annexation of portions of Campbell and Bedford Counties, Virginia to the City of Lynchburg, Virginia effective December 31, 1975. CCOA, which is an unincorporated association composed of citizens of Lynchburg and the two counties, also seeks to enjoin the holding of elections pursuant to the decree and requests that the court award money damages in the amount of $500,000. The complaint asserts as bases for the action U.S.Const. Art. I, § 2, Art. IV, § 2, Amend. V, Amend. XIV, and Amend. XV,¹ as well as 42 U.S.C. §§ 1971, 1973, 1981, and 1983. The case is now before this court on motions to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b) (6).

On May 21, 1974 the Circuit Court of Campbell County, Virginia, sitting as a special three-judge annexation court as provided in § 15.1-1038 of the Code of Virginia,² entered a final decree ordering that certain portions of Bedford and Campbell Counties be annexed to the City of Lynchburg. A petition for writ of error and supersedeas to this order was denied by the Supreme Court of Virginia on January 20, 1975. On March 14, 1975, CCOA filed the present suit naming as defendants the City of Lynchburg and the individual members of the electoral boards for the three areas. Lynchburg and its electoral board members filed motions to dismiss and the other defendants answered generally. Thereafter, Campbell County was granted leave to intervene as a party plaintiff.

A preliminary issue raised by the motions to dismiss concerns the effect of the state court proceedings on the present suit. Alleging that the issues presented by six of CCOA's seven causes of action were raised in the petition to the Virginia Supreme Court, Lynchburg and its electoral board members (both hereinafter referred to as defendants) argue that CCOA is barred from relitigating these issues. In considering this argument, it should initially be noted that CCOA and a number of its members were not involved as parties or privies in the state court. For this reason, the present suit is not barred by the doctrine of res judicata. See Partmar Corp. v. Paramount Corp., 347 U.S. 89, 74 S.Ct. 414, 98 L.Ed. 532 (1954); Drummond v. United States, 324 U.S. 316, 65 S.Ct. 659, 89 L.Ed. 969 (1945); Duncan v. Town of Blacksburg, 364 F.Supp. 643 (W.D.Va.1973). Furthermore, there is nothing in the record now before this court to establish that any of the issues raised by the present action were necessarily adjudicated in the state courts.³ Therefore, collateral estoppel would also not be a proper ground for dismissal. See Kauffman v. Moss, 420 F.2d 1270 (3d Cir. 1970); McNally v. American States Ins. Co., 382 F.2d 748 (6th Cir. 1967); Miller v. Shell Oil Co., 345 F.2d 891 (10th Cir. 1965).

Turning to the substantive claims presented in the complaint, the plaintiffs allege as a first cause of action that Lynchburg has failed to comply with the Voting Rights Act of 1965, as amended, 42 U.S.C. §§ 1973-1973p.⁴ Specifically, they assert a violation of § 5 of the Act, 42 U.S.C. § 1973c, which prohibits any state or political subdivision subject to its provisions from enforcing any change of "standard, practice, or procedure with respect to voting" prior to consideration of the change by a three-judge federal district court for the District of Columbia or, alternatively, by the Attorney General of the United States. Plaintiffs argue that the annexation court's neglect of this requirement and Lynchburg's failure to obtain the necessary approval have thereby violated a number of their constitutional and statutory rights.

In actions alleging violations of § 5, the power of local, federal district courts is quite narrow. They can determine whether the challenged action is subject to § 5 and enjoin enforcement pending compliance by the state or its subdivision, but they lack jurisdiction to authorize implementation of the proposed change where it is found to be subject to § 5.⁵ Allen v. State Bd. of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); Beer v. United States, 374 F.Supp. 357 (D.D.C.1974); see Holt v. City of Richmond, 459 F.2d 1093 (4th Cir.), cert. denied 408 U.S. 931, 92 S.Ct. 2510, 33 L.Ed.2d 343 (1972). Insofar as the present case is concerned, there is no doubt that Virginia is subject to the Voting Rights Act of 1965. 30 Fed.Reg. 9897 (1965); Virginia v. United States, 386 F.Supp. 1319 (D.D.C.), aff'd 420 U.S. 901, 95 S.Ct. 820, 42 L.Ed.2d 833 (1975). It is now also well-established that annexations which enlarge the number of voters in a city are changes in a "standard, practice, or procedure with respect to voting" which are covered by § 5. Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971).

Defendants in the present case have not challenged these conclusions but instead have offered a letter from the office of the Attorney General of the United States which establishes that Lynchburg submitted the Bedford and Campbell annexations to the Attorney General for approval on May 15, 1975.⁶ Although the Attorney General in a July 14, 1975 letter submitted by plaintiffs refused to grant approval on the basis of this submission, it was indicated in that letter that a reconsideration would be in order should Lynchburg undertake to elect its city council from single-member districts. Since Lynchburg appears to concede the applicability of § 5 and has undertaken to comply with its provisions, this court finds no basis for enjoining the annexation which is not to become effective until December 31, 1975. Furthermore, the state court's neglect of § 5 does not constitute a grounds for relief. Section 5 only requires that a state or subdivision seeking to implement a covered change comply with its provisions prior to enforcement of the change.

CCOA asserts as two further causes of action that the annexation will effect unconstitutional reapportionments of Virginia's fifth and sixth U. S. Congressional districts and Virginia's eighteenth and twenty-third state senatorial districts. Section 24.1-4.2 of the Code of Virginia apportions U. S. congressional districts and it places Lynchburg and Bedford County in the fifth congressional district and Campbell County in the sixth congressional district. Thus, on the effective date of the annexation, residents of the annexed areas of Campbell County will be shifted from the sixth to the fifth congressional district. Section 24.1-14.1 of the Code of Virginia, which apportions state senatorial districts, also places portions of the annexed areas in a senatorial district different from that of Lynchburg, but an undecided question of state statutory construction leaves the effect of the annexation on these senatorial districts somewhat in doubt.⁷ Regardless of the proper interpretation of this statute, however, the court can find no basis in either of these two asserted causes of action for granting the relief which CCOA requests at this time. While recognizing the "one-man, one-vote" rule of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L. Ed.2d 481 (1964); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) and subsequent apportionment cases, this court notes that the Supreme Court has often emphasized the proper role of the judiciary in such matters:

Legislative reapportionment is primarily a matter for legislative consideration and determination, and ... judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so. Reynolds v. Sims, supra at 586, 84 S.Ct. at 1394.

See also Connor v. Williams, 404 U.S. 549, 92 S.Ct. 656, 30 L.Ed.2d 704 (1972); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966). Although it is true, as plaintiffs contend in their briefs, that courts may consider apportionment plans prior to their effective date, judicial intervention should occur only after the legislature has had an adequate opportunity to act. Howell v. Mahan, 330 F.Supp. 1138 (E.D.Va.1971), rev'd 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), which is cited by plaintiffs in support of their contention, did involve review by the district court of a reapportionment plan prior to its effective date. The plan there had been devised by the state legislature, however, and was not merely the inadvertent result of an annexation. That case and others cited by plaintiffs are thus clearly distinguishable from the present situation where the legislature cannot be said to have had a reasonable opportunity to review the apportionment effects of the annexation.

Taking a somewhat different tack, CCOA also challenges the effect which the annexation will produce under § 24.1-12.1 of the Code of Virginia. That statute apportions state House of Delegate districts and it places Campbell...