Hendrix v. Joseph, 76-1725

• Decision Date: 12 September 1977
• Docket Number: No. 76-1725,76-1725
• Parties: T. J. HENDRIX et al., Individually and for all others similarly situated, Plaintiffs-Appellees, v. William F. JOSEPH, Jr., Individually and in his official capacity as Chairman of the Montgomery County Commission, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1265

559 F.2d 1265

T. J. HENDRIX et al., Individually and for all others

similarly situated, Plaintiffs-Appellees, v. William F. JOSEPH, Jr., Individually and in his official

capacity as Chairman of the Montgomery County

Commission, et al., Defendants-Appellants.

No. 76-1725.

United States Court of Appeals, Fifth Circuit.

Sept. 12, 1977.

Jack Crenshaw, W. Mark Anderson, III, Montgomery, Ala., for defendants-appellants.

Pamela S. Horowitz, Jr., Morris S. Dees, Joseph J. Levin, Jr., Howard A. Mandell, Montgomery, Ala., for plaintiffs-appellees.

Wm. Baxley, Atty. Gen., State of Ala., Montgomery, Ala., for State of Ala.

Appeal from the United States District Court for the Middle District of Alabama.

Before AINSWORTH and RONEY, Circuit Judges, and ALLGOOD, ^* District Judge.

RONEY, Circuit Judge:

The County Commission of Montgomery County, Alabama, is elected at-large by all the voters of the county. The black plaintiffs allege that this twenty-year-old practice dilutes their votes. The lack of consideration of, and sufficient factual findings on, several of the elements which are relevant to a claim of dilution require a remand, consistent with our recent decisions in David v. Garrison, 553 F.2d 923 (5th Cir. 1977); Paige v. Gray, 538 F.2d 1108 (5th Cir. 1976); and Nevett v. Sides, 533 F.2d 1361 (5th Cir. 1976).

The population of Montgomery County is approximately 170,000 and 36% of its residents are black. The county includes the city of Montgomery, which is the state capital and contains all but 35,000 of the persons living in the county. The city of Montgomery has its own government, which provides the full range of municipal services to the residents of the city. That government has no power outside the city limits. The needs of persons living in the other areas are taken care of by the County Commission, which consists of five Commissioners.

The county is divided into three districts, the northern, which contains the city of Montgomery, the southeastern and the southwestern. The population of the latter two is predominantly black, that of the urban northern district predominantly white. Prior to 1957 each district elected its own County Commissioner, with the northern district electing three. This meant that the rural southern portion of the county, with less than 7% of the population, was electing 40% of the membership of the Commission. In 1957 the Alabama Legislature passed Act 685, Ala.Code Appx., § 523(16.008) (1958), the effect of which was to transform the election of all five Montgomery County Commissioners into at-large contests. It required one Commissioner to reside in the southeastern district, one to reside in the southwestern district, and three to reside in the northern district. Each candidate was assigned a place on the ballot and thus was in a head-to-head race with a specific opponent for a specific seat on the Commission. Under Alabama law a majority vote was required for election.

This suit was commenced by eight black residents of the northern district as a class action. The class consists of all blacks eligible to vote in Montgomery County, and seeks declaratory and injunctive relief on the theory that the scheme imposed by Act 685 unconstitutionally dilutes black voting strength. The defendants include the present members of the County Commission, the County Probate Judge, and the State Attorney General.

The district court concluded that the plan established by Act 685 did "operate to minimize or cancel out the voting strength" of the black minority in the county, and held the Act unconstitutional. It then stayed any action on a remedy pending the outcome of this appeal.

Much of what we said in David v. Garrison, 553 F.2d 923, 925-928, 930-931 (5th Cir. 1977), is directly applicable to this case. The discussion there forms a necessary backdrop for our decision today. In order to place that analysis in this file, but to avoid burdening the Federal Reporter with repetition, we incorporate here, in an unpublished footnote, a substantial portion of that opinion. ¹

As enunciated in David v. Garrison, 553 F.2d at 928, the correct approach to a claim of dilution is to examine the situation in light of the factors identified in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd per curiam on other grounds sub nom., East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). A conclusory finding by the trial court that there has been dilution is not sufficient. See Nevett v. Sides, 533 F.2d 1361 (5th Cir. 1976). It remains therefore to address each of the factors through which a plaintiff may show dilution. In doing so we keep in mind that while no factual finding may be disturbed unless clearly erroneous, the failure to find facts necessary to support a result is an error of law.

Slating

The first factor which must be addressed is minority access to the slating process. The district court made no findings with respect to the existence or absence of screening organizations, petition requirements, or other barriers to minority group members. It did discuss a number of successful and unsuccessful black candidates for public office. The very fact that there have been such candidacies is "suggestive of the fact that there is minority access to the nomination process." David v. Garrison, 553 F.2d at 929. The court did not, however, make any findings concerning the process through which one may become listed on the ballot, and it is the ability of blacks to get on the ballot which is the core of the inquiry as to slating. Absent such findings, a pausity of black candidates may be caused by a multitude of factors other than an unequal slating process and a diluting at-large system.

Responsiveness

The analysis of the responsiveness question requires a consideration of two distinct problems. The first is the provision of governmental services to minority communities. This is the area in which citizens most typically rely on their local governments for equal treatment. Yet the district court made no findings whatsoever on whether the Montgomery County Commission was presently providing equal services to all communities within the county. The only evidence concerning county services related to the refusal of the Commission to build a football field at a school when it was an all black junior high school with no football team, followed by the construction of such a field when the school was converted to an integrated high school with such a team. This alone seems insufficient.

The district court opinion did catalog the long, and certainly undisputed history of official racial discrimination in Alabama in general and Montgomery County in particular, and took judicial notice of a series of desegregation suits concerning Montgomery recreation facilities, buses, bus terminals, libraries, and museums. In each of these cases, however, the County Commission itself was not a party, and there is no indication that the matters involved were within its jurisdiction. Instead, in each instance the lawsuits were concerned with conditions existing within the city of Montgomery and the activities of the city government. Such facts cannot properly bear on the "governmental services" responsiveness inquiry here since they do not deal with matters within the control of the County Commission.

The second problem faced in making the responsiveness analysis "concerns the distribution of municipal jobs and appointments to various boards and commissions." David v. Garrison, 553 F.2d at 929. In this regard, the district court noted that

(t)he Commission is currently under court order to end racially discriminatory hiring practices. Sims v. Montgomery County Commission, CA No. 3708-N (M.D.Ala. March 22, 1973) . . . . (N)ot only are blacks significantly underrepresented on the County's payroll, but . . . those who are employed are assigned primarily to low-paying clerical and laborer positions. The plaintiffs' evidence also demonstrates that blacks are significantly underrepresented in appointments made by the Commission.

Unlike David v. Garrison, the hiring disparity here is indicative of some measure of lack of responsiveness since the prerequisites to a hiring discrimination lawsuit include a showing of intentional refusal to hire otherwise qualified persons by the defendant Commission. This finding alone, however, is not enough. County jobs do not necessarily need to be allocated proportionately to every group in the electorate before a local governmental entity is deemed to be responsive. Hiring disparity is relevant at all only because it is suggestive of the fact that the Commission believes it can treat black citizens unequally with impunity. Such a belief, of course, is in turn a symptom of dilution.

As is true of all the Zimmer factors, the inquiry into governmental responsiveness is designed to test whether an at-large system has made elected officials so secure in their positions and has made the black vote so unnecessary to success at the polls that the day-to-day governmental services provided to, and input secured from, all segments of the...