Cottier v. City Of Martin

• Decision Date: 05 May 2010
• Docket Number: No. 07-1628.,07-1628.
• Parties: Pearl COTTIER; Rebecca Three Stars, Appellees,v.CITY OF MARTIN; Todd Alexander; Rod Anderson; Scott Larson; Don Moore; Brad Otte; Molly Risse, in their official capacities as members of the Martin City Council; Janet Speidel, in her official capacity as Finance Officer of the City of Martin, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

604 F.3d 553

Pearl COTTIER; Rebecca Three Stars, Appellees,v.CITY OF MARTIN; Todd Alexander; Rod Anderson; Scott Larson; Don Moore; Brad Otte; Molly Risse, in their official capacities as members of the Martin City Council; Janet Speidel, in her official capacity as Finance Officer of the City of Martin, Appellants.

No. 07-1628.

United States Court of Appeals,

Eighth Circuit.

Submitted: Sept. 23, 2009.

Filed: May 5, 2010.

Sara Frankenstein, argued, Donald P. Knudsen, on the brief, Rapid City, SD, for appellants.

Bryan Sells, argued, Atlanta, GA, Patrick Duffy, Rapid City, SD, for appellees.

Before RILEY, Chief Judge,¹ WOLLMAN, LOKEN, MURPHY, BYE, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges.

COLLOTON, Circuit Judge.

This appeal involves a claim that the City of Martin, South Dakota, and several of its officials violated Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973(b). The plaintiffs contend that the defendants adopted and maintained an ordinance that impaired the ability of Native American Indians to participate in the political process and to elect representatives of their choice in city elections. Sitting en banc, we conclude that the district court properly dismissed the action in its order of March 22, 2005, which was reversed by a panel of this court. We therefore vacate the court's later judgment of February 9, 2007, and remand with directions to dismiss the action.

I.

Pearl Cottier and Rebecca Three Stars, members of the Oglala Sioux Tribe and residents of Martin, brought suit against the City, several members of the city council, and the City's former finance director, alleging violations of the Voting Rights Act and the Constitution. The plaintiffs alleged that the City's Ordinance 122, which established boundaries for three voting wards within the City, diluted the votes of Indians in each ward, and thereby violated Section 2. They also alleged that the City enacted and maintained Ordinance 122 with a racially discriminatory purpose, in violation of Section 2 and the Fourteenth and Fifteenth Amendments.

After an eleven-day bench trial, the district court rejected the plaintiffs' claims and dismissed the action. Cottier v. City of Martin, No. 02-5021, slip op. (D.S.D. Mar. 22, 2005) (hereafter “ March 2005 Order ”). With respect to the Section 2 vote dilution claim, the court found that although the plaintiffs satisfied two of the three preconditions for liability that were established in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), they failed to show the third precondition, namely, that the “white majority” in the City voted “sufficiently as a bloc to enable it ... usually to defeat the [Indian] preferred candidate.” Id. at 51, 106 S.Ct. 2752. The court also found no evidence of discriminatory intent in the passage of Ordinance 122, and dismissed the plaintiffs' alternative Section 2 claim and the constitutional claims on that basis.

On appeal, a divided panel of this court reversed on the vote dilution claim. Cottier v. City of Martin, 445 F.3d 1113 (8th Cir.2006) ( Cottier I ). The court affirmed the district court's findings regarding the first two Gingles preconditions, but concluded that the district court clearly erred in finding that the third precondition was not satisfied. The court remanded to the district court with instructions to determine whether, in view of this court's ruling that the plaintiffs had met all three Gingles preconditions, the plaintiffs were entitled to relief under the totality of the circumstances. If so, the district court was directed to devise and implement an appropriate remedy. The City's petition for rehearing en banc was denied, with five judges voting to grant it.

On remand, having been directed to accept that the plaintiffs established all three Gingles preconditions for a Section 2 vote dilution claim, the district court found based on the totality of the circumstances that Ordinance 122 violated Section 2. Cottier v. City of Martin, 466 F.Supp.2d 1175 (D.S.D.2006). The City declined to propose a remedy, asserting that there was no possible remedy for the violation found by the court. The district court considered three remedies proposed by the plaintiffs, and adopted the plaintiffs' Plan C Cottier v. City of Martin, 475 F.Supp.2d 932 (D.S.D.2007). Plan C did not divide the City into aldermanic wards, but rather adopted an at-large voting scheme using cumulative voting. Although the district court concluded in its March 2005 order that it lacked authority to order such a remedy, because it was not authorized by South Dakota law see March 2005 Order at 21 n. 4 (citing Cane v. Worcester County, 59 F.3d 165, 1995 WL 371008 (4th Cir.1995) (unpublished), and Cane v. Worcester County, 35 F.3d 921 (4th Cir.1994)), the court on remand determined that Plan C was permissible. The court ruled that it was “bound to follow” dicta from this court's opinion in Cottier I, 445 F.3d at 1123 n. 7, which stated that “[i]f, at the remedy stage, a redistricting of Martin's wards appears unworkable, it appears that [Plan C] would be a viable option.” See 475 F.Supp.2d at 937.

The City appealed both the finding of a Section 2 violation and the remedy, and a divided panel of this court affirmed. Cottier v. City of Martin, 551 F.3d 733 (8th Cir.2008) ( Cottier II ). The court then granted rehearing en banc and vacated the panel opinion in Cottier II. The en banc court notified the parties that the court may wish to consider issues decided in Cottier I, as well as those briefed in Cottier II.

II.

As the case is before the en banc court for the first time, we must first consider the scope of our review. The present appeal arises from the district court's rulings on remand from Cottier I, but this does not mean that we are constrained as a matter of law to accept the panel decision in Cottier I. The en banc court does not lightly review a prior panel decision in the same case, but we have the power to do so.

When sitting en banc, the court has authority to overrule a prior panel opinion, whether in the same case or in a different case. The en banc court has not considered the questions decided in Cottier I, and the law of the case does not preclude our consideration of those issues at this stage. The law of the case doctrine “expresses the practice of courts generally to refuse to reopen what has been decided,” but it is “not a limit to their power.” Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912); see Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988). The doctrine, moreover, holds less sway with respect to an en banc court that is considering issues previously decided by a three-judge panel. That the court previously denied a petition for rehearing en banc is not controlling, because the decision to deny rehearing en banc is a pure exercise of discretion. It is not a ruling on the merits.

The parties have no justifiable expectation that a denial of rehearing en banc at an interlocutory stage resolves issues for all time. A remand order is not final until the Supreme Court denies certiorari at the end of the case. See Christianson, 486 U.S. at 817, 108 S.Ct. 2166 (“A petition for writ of certiorari can expose the entire case to review.”); Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 365 n. 1, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973) (holding that a prior dismissal of a writ of certiorari at an interlocutory stage did not establish law of the case or amount to res judicata on the points raised); E. Gressman et al Supreme Court Practice 82-83 (9th ed. 2007) (“The Court can reach back and correct errors in the interlocutory proceedings below, even though no attempt was made at the time to secure review of the interlocutory decree or even though such an attempt was made without success.”). The parties likewise must recognize that when the court of appeals declines in its discretion to rehear a case en banc after a panel orders a remand, the court retains authority to rehear the matter en banc at a subsequent stage of the proceedings.

To the extent that a footnote in Robertson Oil Co. v. Phillips Petroleum Co., 14 F.3d 373, 376 n. 5 (8th Cir.1993) (en banc), purports to restrict the authority of an en banc court to consider prior panel decisions, we overrule it. Robertson cited law of the case principles that constrain a subsequent three-judge panel, see Liberty Mut. Ins. Co. v. Elgin Warehouse & Equip., 4 F.3d 567, 573 (8th Cir.1993) (order denying rehearing en banc), and seemed to apply them to an en banc court. We reject this view, and align ourselves instead with the uniform position of the circuits that an en banc court may overrule an erroneous panel opinion filed at an earlier stage of the same case. See Irving v. United States, 162 F.3d 154, 161 & n. 7 (1st Cir.1998) (en banc); Watkins v. U.S. Army, 875 F.2d 699, 704-05 n. 8 (9th Cir.1989) (en banc); Shimman v. Int'l Union of Operating Eng'rs, Local 18, 744 F.2d 1226, 1229 n. 3 (6th Cir.1984) (en banc); Van Gemert v. Boeing Co., 590 F.2d 433, 437 n. 9 (2d Cir.1978) (en banc); In re Cent. R.R. Co. of N.J., 485 F.2d 208, 210-11 (3d Cir.1973) (en banc); see also 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper Federal Practice and Procedure § 4478.2 (2d ed.2002).

We conclude that it is appropriate in this case for the en banc court to consider the panel decision in Cottier I. For the reasons set forth below, we hold that Cottier I erred in reversing the district court's dismissal of the action and remanding for further proceedings on liability and remedy. A federal court order directing a city to redraw its election ward boundaries, or to alter fundamentally its voting system, raises significant issues of federalism. See Voinovich v. Quilter, 507 U.S. 146, 156-57, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993). We think it exceptionally important for a ...