Coalition to Preserve Houston v. INTERIM BD., ETC.

• Decision Date: 01 July 1980
• Docket Number: H-77-121,Civ. A. No. H-77-92
• Citation: 494 F. Supp. 738
• Parties: COALITION TO PRESERVE HOUSTON and the Houston Independent School District, Plaintiff, v. INTERIM BOARD OF TRUSTEES OF the WESTHEIMER INDEPENDENT SCHOOL DISTRICT, Defendant. UNITED STATES of America, Plaintiff, v. WESTHEIMER INDEPENDENT SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Southern District of Texas

494 F. Supp. 738

COALITION TO PRESERVE HOUSTON and the Houston Independent School District, Plaintiff, v. INTERIM BOARD OF TRUSTEES OF the WESTHEIMER INDEPENDENT SCHOOL DISTRICT, Defendant.

UNITED STATES of America, Plaintiff, v. WESTHEIMER INDEPENDENT SCHOOL DISTRICT, Defendant.

Civ. A. Nos. H-77-92, H-77-121

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

July 1, 1980.

William Pannill, Houston, Tex., for plaintiff Coalition.

Harvey Knudson, Atty. in Charge, J. Stanley Pottinger, Asst. Atty. Gen., Civil Rights Division, Dept. of Justice, Washington, D. C., and Mary L. Sinderson, Local Counsel, Asst. U. S. Atty., Houston, Tex., for United States.

James Ross, Houston, Tex., for defendant Interim Bd. of WISD.

Nathan Johnson, Asst. Atty. Gen., Austin, Tex., for defendant State of Texas and Texas Ed. Agency.

Before BROWN, Circuit Judge, and CARL O. BUE and O'CONOR, District Judges.

MEMORANDUM AND ORDER.

The Voting Rights Act of 1965, as amended, 42 U.S.C. §§ 1971 et seq., ("the Act"), Section 5, prohibits a state or political subdivision from enacting or seeking to administer any voting qualification, prerequisite, standard, practice, or procedure different from that in effect on November 1, 1972 without first either instituting a declaratory judgment action in the United States District Court for the District of Columbia or obtaining approval from the Attorney General. 42 U.S.C. § 1973c. The voting change must not have the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority. Id.

The Interim Board of Trustees of the Westheimer Independent School District ("WISD") requested the Attorney General to preclear a WISD special election scheduled for January 15, 1977. On January 13, 1977 the Attorney General interposed an objection under the Act to the proposed election.

The Coalition to Preserve Houston and the Houston Independent School District ("the Coalition") filed suit on January 14, 1977 seeking declaratory and injunctive relief against the Interim Board of WISD. Judge Hannay denied the Coalition's request to convene a three-judge court and refused to issue a temporary restraining order. The election was held on January 15 and the WISD Board of Trustees was elected.

The United States of America filed suit on January 20, 1977 alleging that the WISD Board violated Section 5 of the Act, 42 U.S.C. § 1973c, and seeking declaratory and injunctive relief.

The Coalition appealed from Judge Hannay's order denying it relief, then sought dismissal of the appeal in order to renew its request for a three-judge court pursuant to 28 U.S.C. § 2284(a). The Coalition also sought consolidation of its case with the government's case. The Fifth Circuit dismissed the appeal without prejudice to the Coalition's right to request from the lower court the convening of a three-judge court. On July 1, 1977 Judge Hannay's order denying a three-judge court was vacated, the cases were consolidated, and Judge Noel requested a three-judge court.

On July 29, 1977 Chief Judge Brown consolidated the Westheimer cases with a series of pending cases in the Northern District of Texas in which the common issue was whether local school districts and municipalities in Texas are political subdivisions subject to Section 5 of the Act.

The three-judge court in the Northern District of Texas ruled in accordance with the decision in a related Supreme Court case, United States v. Sheffield Board of Commissioners, 435 U.S. 110, 98 S.Ct. 965, 55 L.Ed.2d 148 (1978) and found that municipalities and school districts in Texas are "political subdivisions" as that term is defined in Section 14(c)(2) of the Act, 42 U.S.C. § 1973l(c)(2), and are therefore subject to the provisions of Section 5 of the Act.¹Hereford Independent School District v. Bell, 454 F.Supp. 143, 144 (N.D.Tex. 1978). The court further held in its Memorandum and Order entered on June 2, 1978 that the school districts involved should be permanently enjoined from conducting elections under changed voting procedures until and unless these entities comply with Section 5 of the Act. Id. at 145.

By an order dated September 12, 1978 the three-judge court severed the Westheimer cases from those in the Northern District of Texas and remanded them to the Southern District for judgment to be entered in accordance with the decision in the consolidated case. Both of the Plaintiffs have filed Motions for Entry of Judgment and the Coalition has filed a Motion for Award of Attorneys' Fees.

The Plaintiffs point out that in the Memorandum and Order issued on June 2, 1978 the three-judge court held that school districts should be permanently enjoined from conducting elections under changed procedures until and unless Section 5 of the Act is complied with. The Plaintiffs request that the election held by WISD on January 15, 1977 be set aside and declared null and void for failure to comply with the preclearance requirements of the Act.

A request to have county elections set aside was declined by the Supreme Court of the United States in Allen v. Board of Elections, 393 U.S. 544, 571-72, 89 S.Ct. 817, 834-35, 22 L.Ed.2d 1 (1969), because Section 5 coverage was then an issue of first impression, the state enactments were not so clearly subject to the Section that a failure to submit them for approval constituted deliberate defiance of the Act, and the discriminatory purpose or effect of the statutes had not yet been determined by any court.² At the time of the election which is the subject of the present controversy, the Defendant apparently acknowledged the Section 5 coverage of the changed election procedures. This was evidenced by the Defendant's request to the Attorney General in a letter received on December 17, 1976, that he preclear the January 15, 1977 election (Stipulation ¶ 14). The discriminatory purpose or effect of the proposed voting changes accompanying the January 15 election was determined by the Attorney General, and he interposed an objection to the special election in a letter dated January 13, 1977 (Stipulation ¶ 15). The holding of the election by the Defendant despite the Attorney General's refusal to approve it was in deliberate defiance of the Act. Thus the instant case is readily distinguished from the circumstances of Allen.

The Supreme Court decided a Voting Rights Act case in 1971 in which the appellants sought to have certain elections set aside. Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971). The determination of an appropriate remedy was left for the District Court.³ The Supreme Court, however, observed that some considerations in the determination might include the nature of the election-procedure changes complained of and whether it was reasonably clear at the time of the election that the changes were covered by Section 5. The Court further suggested that officials should be given an opportunity to seek approval of the changes and that a new election should be required only if they refused to do so or if approval is not forthcoming. Id. at 396-97, 91 S.Ct. at 440-441.

In 1978 the Supreme Court implemented the relief suggested in Perkins: affording local officials the opportunity to apply for federal approval of a voting change under Section 5 instead of ordering a new election. Berry v. Doles, 438 U.S. 190, 193, 98 S.Ct. 2692, 2694, 57 L.Ed.2d 693 (1978) (per curiam). Such remedy is clearly inapplicable to the present Defendant since it did attempt to have the voting change approved by the Attorney General before the election took place.

The fact that federal authorization of the election was denied rendered the holding of the election unlawful⁴ and its legally unenforceable results shall be set aside. Pre-election relief having been sought by the Coalition and improperly refused, the election now will be set aside. See Hamer v. Campbell, 358 F.2d 215, 222 (5th Cir.), cert. denied, 385 U.S. 851, 87 S.Ct. 76, 17 L.Ed.2d 79 (1966).

Section 14(e) of the Act gives the court discretion to award the prevailing party, other than the United States, reasonable attorneys' fees as part of the costs. 42 U.S.C. § 1973l(e). The legislative history of the 1975 amendments to the Act characterizes the fee awards as essential to the full enforcement of the applicable constitutional requirements and federal statutes. S.Rep.No. 94-295, 94th Cong., 1st Sess. 41, reprinted in 1975 U.S.Code Cong. & Admin.News, pp. 774, 808.

The standards for awarding fees under Section 14(e) are the same as under the fee provisions of the 1964 Civil Rights Act. Id. at 807. A successful party "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). The Coalition obviously meets the "prevailing party" requirement for attorneys' fees purposes. It has succeeded on the significant issues in litigation,⁵ i. e., whether school districts in Texas are political subdivisions under the Act and are subject to the Section 5 preclearance provisions, and has achieved the benefits sought in bringing suit.⁶

The fee award is not recoverable against the State of Texas or the Texas Education Agency ("TEA"), however. The Coalition contends that the State of Texas and the TEA are liable because school districts are agencies of the State and pursuant to statutorily authorized procedures, the State and the TEA became responsible for creating the WISD. By analogy to cases wherein courts have interpreted identical language in the legislative history⁷ of the Civil Rights Attorney's Fees Awards Act of 1976, amending 42 U.S.C. § 1988, a portion of the Senate Report accompanying the 1975 amendments to Section 14(e)⁸ apparently would support a finding that the State and the TEA can be held liable for attorneys' fees assessed against WISD,⁹ if WISD is closely...