Hubbard v. Ammerman
| Decision Date | 31 October 1972 |
| Docket Number | No. 71-2298.,71-2298. |
| Citation | 465 F.2d 1169 |
| Parties | Roy HUBBARD et al., Plaintiffs-Appellees, James S. Collins, Intervenor-Appellee, v. Jim AMMERMAN, Defendant-Appellant, and Lonnie E. Henry, Clerk of the Court of Civil Appeals for the 6th Supreme Judicial District of Texas, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William M. Huffman, Marshall, Tex., for Jim Ammerman.
Crawford C. Martin, Atty. Gen. of Texas, Austin C. Bray, Jr. Asst. Atty. Gen., Austin, Tex., for Lonnie E. Henry.
Franklin Jones, Sr., Marshall, Tex., Paul S. Colley, Henderson, Tex., Earl Sharp, Longview, Tex., for plaintiffs-appellees.
Sam R. Moseley, Marshall, Tex., for other interested parties.
Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
Rehearing and Rehearing En Banc Denied October 31, 1972.
This litigation began in the 71st Judicial District of Texas as a local election contest to determine who had received the majority of the votes legally cast in a Democratic primary for the nomination of a candidate for County Judge in Harrison County, Texas.
In the manner hereinafter described, the controversy got into the United States District Court for the Eastern District of Texas. The result was a head-on collision between that Court and the Texas Court of Civil Appeals, with the Federal District Court ultimately deciding this local contest.
For reasons presently to appear, we are of the opinion that the District Court should not have assumed jurisdiction of this controversy.
Its judgment is reversed. The case is remanded with directions that the District Court shall vacate its judgment, dissolve its permanent injunction, and dismiss the case from its docket.
In the Democratic Party primary to select a nomined for the office of County Judge of Harrison County, Texas, held May 2, 1970, there were two candidates. One was Jim Ammerman, the incumbent. The other was James S. Collins. After canvassing the election returns, the County Democratic Executive Committee found that Ammerman had received 4,073 votes and Collins had received 4,057 votes. Ammerman, therefore was certified as the Democratic nominee for County Judge.
As authorized by Article 13.30 of the Texas Election Code, V.A.T.S.,1 Collins
instituted an election contest in the 71st Judicial District of Harrison County, praying that the certificate issued to Ammerman be set aside and that Collins be declared the Democratic nominee. Collins alleged that absentee ballots had been illegally cast by mail for his opponent, that other spurious ballots had likewise been cast. This Ammerman denied and counterclaimed that a number of illegal ballots had been cast for Collins by non-residents of the precincts in which they had been allowed to vote.
Subsequently, Collins amended his pleadings to request that a new primary be ordered, asserting that so many illegal votes had been cast that the election should be declared void.
Ammerman contended that under the applicable Texas statute the Court had jurisdiction only to decide the true result of the election as determined by the votes legally cast, a position supported by the prior decisions in Nesbitt v. Coburn, 143 S.W.2d 229 (1940) and Scruggs v. Perkins, 233 S.W.2d 913 (1950), decisions of the Texas Court of Civil Appeals, which has final jurisdiction of such matters in Texas, Article 13.30(12), Texas Election Code.
After an extended trial which generated a testimonial transcript in excess of 4,000 pages, and despite the appellate decisions just cited, the Texas trial court, on July 27, 1970, entered its judgment setting aside the May 2 primary and ordering a new primary be held for the selection of a Democratic nominee for the office of County Judge.
The next step, Article 13.30(12), Texas Election Code was an appeal to the Texas Court of Civil Appeals.
Collins had insisted in the District Court that a new election be ordered, but he argued on appeal that he should have been declared the nominee.
Ammerman likewise appealed, contending that the local Texas Court should have decided the winner and was without authority to order a new primary.
The appeals were duly docketed in the Texas Court of Civil Appeals at Texarkana.
To this point, the case was nothing more than an ordinary, often encountered, contest to decide who had received a majority of the legally cast votes for a nomination in a County Democratic primary.
The matter, however, was not allowed to follow the usual course through the Texas state court system.
While the appeals filed by both Collins and Ammerman were pending in the duly designated Texas court of last resort, Roy Hubbard and numerous others, who had not been candidates in the primary, who had no claim to the nomination, on September 10, 1970, filed a complaint in the United States District Court for the Eastern District of Texas, at Marshall.
Some of the complainants if not all of them, had sought to intervene in the Texas District Court case but their intervention had been denied. From this action they did not appeal to the Texas Court of Civil Appeals.
The federal complaint alleged that the plaintiffs had voted in the primary and had voted for James S. Collins. Asserting a class action on behalf of themselves and all others who had voted for Collins, contending that they were seeking to enforce their rights under the Voting Rights Act of 1964 and 1965, and seeking "to protect their rights of suffrage and of having their votes counted under the provisions of 42 U.S.C.A., § 1983(1)", these voters attached a copy of the judgment of the District Court of Harrison County ordering a new election, as well as a transcript of the official proceedings in that Court. It was charged that the ballot boxes had been stuffed with the absentee ballots of persons Negroes who, in fact, had not voted those ballots. Further, ballots had been illegally cast where in the applications for the ballot contained no signature and likewise constituted ballot box stuffing. It was claimed that a majority of all the allegedly illegal votes were cast by or in the name of Negroes, and that this "action of the supporters of the defendant Ammerman" constituted preying upon the Negro race, and the illiterates thereof, so as to deprive them of the right to cast a free ballot, on account of their race and color, in contravention of the Voting Rights Acts and the Fifteenth Amendment to the Constitution. It was further alleged that these ballots had been cast in violation of Texas law, that in the state court trial Ammerman had sought to have the ballots of 152 voters declared illegal because they had voted in a precinct where they did not reside, and that to permit the certification of Ammerman as the Democratic nominee would dilute the vote of the complainants and all others who voted for Collins, in violation of the "one person-one vote" rule. It was ultimately alleged that Ammerman was maneuvering to delay the appeal to the Texas Court of Civil Appeals beyond the date when it would be possible to print the general election ballots, thus mooting the contest. These allegations will be subjected to more extensive description infra.
It was prayed that the appearance of Jim Ammerman's name on the general election ballot as the nominee of the Democratic Party be enjoined by the federal district court, that a new primary election for the nomination of county judge be ordered, and that no general election for the office of county judge be allowed until such primary could be completed.
The District Court set a hearing for September 25 as to preliminary injunctive and mandatory relief.
Collins was not named as a party plaintiff or defendant to the federal court suit, but Ammerman was made a defendant. Ammerman filed a motion to dismiss the complaint on the ground that on its face the action (1) had been prematurely instituted ; that (2) it raised no substantial federal question ; that (3) the judgment of the Texas district court was not a final judgment because of the pending appeals to the Texas Court of Civil Appeals ; that (4) in his Texas appeal James S. Collins had contended that a judgment should be rendered declaring him to be the nominee ; that (5) the defendant Ammerman had contended in the appellate court that the district court erred in ordering a new election ; that, (6) the complaint constituted an effort to have the United States District Court review, as an appellate court, the action of the state court with reference to the election contest ; and that (7) the district court was without jurisdiction of the cause. Ammerman also filed an answer reiterating the factual basis upon which it was contended that he had won the primary.
On September 29, 1970, the United States District Court denied the motion to dismiss and granted a preliminary injunction, saying that from an examination of the opinion of the state district court and from evidence presented at the hearing, . Emphasis added.
On these premises, the United States District Court did not order a new primary but, until further ordered, unconditionally enjoined the appearance of Ammerman's name on the general election ballot as a Democratic nominee, enjoined the Harrison County Election Board from providing any election supplies for use in the general election for county judge, and enjoined the holding of a general election for the office of county judge. Moreover, "every voter and elector participating in...
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