Greater Houston Civic Council v. Mann, Civ. A. No. 73-H-1650.

• Decision Date: 08 March 1977
• Docket Number: Civ. A. No. 73-H-1650.
• Citation: 440 F. Supp. 696
• Parties: GREATER HOUSTON CIVIC COUNSEL et al. v. Frank MANN et al.
• Court: U.S. District Court — Southern District of Texas

440 F. Supp. 696

GREATER HOUSTON CIVIC COUNSEL et al. v. Frank MANN et al.

Civ. A. No. 73-H-1650.

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

March 8, 1977.

L. A. Greene, Jr., Houston, Tex., George J. Korbel, San Antonio, Tex., Frumencio Reyes, Craig Washington, Houston, Tex., Jesse Roy Botello, San Antonio, Tex., for plaintiffs.

Otis H. King, City Atty. and John R. Whittington, Jr., Asst. City Atty., Houston, Tex., for defendants.

MEMORANDUM AND OPINION

HANNAY, Senior District Judge.

This is a class action suit in behalf of black and Mexican-American minorities in Houston, Texas against members of Houston's City Council. The suit seeks to enjoin on federal constitutional grounds further elections for positions on the Council under the present system of voting. Under attack here is the city wide multidistrict voting that obtains for all councilmen, as it does for the mayor, in Houston's mayor-councilmen form of municipal government. Under Houston's Charter, and in practical operation, the mayor has pronounced and perhaps preponderant political authority. The mayor exercises unfettered administrative control over all departments of the City, has the power to appoint subject to confirmation by the Council all department heads in the City government, and has the unfettered power to remove them from office without reference to the City Council. All the administrative work of the city government is directly under his control and the Council is charged by the Charter to "deal with that part of the administrative service for which the Mayor is responsible solely through the Mayor, and neither the Council nor any member thereof shall give orders to any of the subordinates of the Mayor in said departments, either publicly or privately." General legislative power is vested in the Council with the Mayor sitting as a member thereof; councilmen are expressly prohibited from exercising any administrative power or serving as a department head. The Mayor has effective administrative control and is in full time service as Mayor while councilmanic positions contemplate part time service by the councilmen. The Mayor likewise sits on the City Council.

There are eight councilmanic positions as such in Houston city government. Five of these positions (which have a residency requirement) represent five distinct geographical districts with the electing vote for each of these five districts being city wide and by majority vote. The three additional councilmanic positions are at-large and they are, of course, likewise elected by a city wide vote and by majority vote. This suit is brought in behalf of black and Mexican-American racial minorities in Houston that constitute, respectively, some 26% and 13% of the population thereof. Plaintiffs' contention here is that this multidistrict representation in Houston's city government serves to dilute, minimize, and cancel out said minorities' voting strength in Houston in violation of their federal constitutional rights ... under the privileges and immunities, due process and equal protection clauses of the Fourteenth Amendment and under the Fifteenth Amendment to the Constitution of the United States.

I.

In Zimmer v. McKeithen, 5 Cir., 485 F.2d 1297, at 1305, affirmed sub. nom., East Carrol Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296, the Court set out the criteria for determining impermissible voter dilution:

"... Clearly, it is not enough to prove a mere disparity between the number of minority residents and the number of minority representatives. Where it is apparent that a minority is afforded the opportunity to participate in the slating of candidates to represent its area, that the representatives slated and elected provide representation responsive to minority's needs, and that the use of a multi-member districting scheme is rooted in a strong state policy divorced from the maintenance of racial discrimination, ... would require a holding of no dilution. (Dilution would exist, however) where the state policy favoring multi-member or at-large districting schemes is rooted in racial discrimination. Conversely, where a minority can demonstrate a lack of access to the process of slating candidates, the unresponsiveness of legislators to their particularized interests, a tenuous state policy underlying the preference for multi-member or at-large districting, or that the existence of past discrimination in general precludes the effective participation in the election system, a strong case is made. Such proof is enhanced by a showing of the existence of large districts, majority vote requirements, anti single shot voting provisions and the lack of provision for at-large candidates running from particular geographical subdistricts. The fact of dilution is established upon proof of the existence of an aggregate of these factors." Accord: Paige v. Gray, 5 Cir., 538 F.2d 1108, 1110; McGill v. Gadsden County Commission, 5 Cir., 535 F.2d 277; Nevett v. Sides, 5 Cir., 533 F.2d 1361.

Recognizing that the phenomena is deeply rooted and widespread in American political life, the Supreme Court of the United States has expounded and established the rule that multidistrict representation is not per se unconstitutional. Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363; Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376; Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401; Lucas v. Colorado General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. The burden of proof is clearly upon the proponent of disestablishment. Whitcomb v. Chavis, supra; White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314.

White v. Regester, 412 U.S. 755, at 765-766, 93 S.Ct. 2332, at 2339, would require a showing that the multidistrict councilmanic system in Houston is:

"... being used invidiously to cancel out or minimize the voting strength of racial groups ... To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiff's burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice."

See also: Paige v. Gray, 5 Cir., 538 F.2d 1108; Bradas v. Rapides Parish Police Jury, 5 Cir., 508 F.2d 1109; Turner v. McKeithen, 5 Cir., 490 F.2d 191; and Reese v. Dallas County, Alabama, 5 Cir., 505 F.2d 879.

Access to the political process rather than minority population-representation ratios is the keystone for determining dilution of minority voting strength. Reese v. Dallas County, Alabama, supra.

In Wilson v. Vahue, N.D.Tex., 403 F.Supp. 58, 61, affirmed by the Court of Appeals for the Fifth Circuit at 537 F.2d 1142 with no further appellate history, the basic jurisprudence on the subject herein was stated as follows:

"The Supreme Court of the United States and the Fifth Circuit have articulated a set of legal standards by which the constitutionality of an election system is to be gauged. It is clear that multi-member districts are not per se unconstitutional. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971). The plaintiffs must show the court that the system has the effect of invidiously canceling out or minimizing their voting strength. To sustain their burden, plaintiffs must prove to the satisfaction of the court that the at-large system here in question prevents them from enjoying full access to the processes of nomination and election. To show only that the group in question has not had elected officials in proportion to its voting power is insufficient. White v. Regester, supra; Whitcomb v. Chavis, supra. With these guidelines as a framework, the United States Court of Appeals for the Fifth Circuit has set out factors which, when viewed collectively in light of the existing circumstances, may support a finding of dilution of a group's voting strength. The factors to consider are (1) the opportunity for participation in the candidate selection process, (2) the responsiveness of elected officials to the particular concerns of the group, (3) the continuing effects of past discrimination on a group's ability to participate in the political process, and (4) the policy underlying the preference for multi-member or at-large voting. Wallace v. House, 515 F.2d 619 (5th Cir. 1975); Bradas v. Rapides Parish Police Jury, 508 F.2d 1109 (5th Cir. 1975); Turner v. McKeithen, 490 F.2d 191 (5th Cir. 1973); Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973).

Although these dilution factors warrant primary consideration, the court must look to any structural devices that could enhance whatever dilution potential may be found. Wallace v. House, supra; Bradas v. Rapides Parish Police Jury, supra; Turner v. McKeithen, supra.

This court must examine the evidence presented by plaintiffs and determine whether they have been denied meaningful participation in the City Commission elections in Amarillo in light of the four basic dilution factors, together with any enhancement factors. Every factor need not be proved in order to obtain relief; rather they should be viewed in the aggregate. Wallace v. House, supra."

II.

The City Charter of Houston as it governs the day to day operation of municipal government is mainly the creature of a 1955 amendment which was achieved by popular vote. The central aim and purpose of this 1955 amendment was to secure adequate authority in the office of the mayor. This aim and purpose has been fully realized; and it is operating today to the distinct advantage, not...