Kirksey v. City of Jackson, Miss.

• Citation: 506 F. Supp. 491
• Decision Date: 21 January 1981
• Docket Number: Civ. A. No. J77-0075(N).
• Parties: Henry J. KIRKSEY et al., Plaintiffs, v. CITY OF JACKSON, MISSISSIPPI et al., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

506 F. Supp. 491

Henry J. KIRKSEY et al., Plaintiffs, v. CITY OF JACKSON, MISSISSIPPI et al., Defendants.

Civ. A. No. J77-0075(N).

United States District Court, S. D. Mississippi, Jackson Division.

January 21, 1981.

COPYRIGHT MATERIAL OMITTED

Frank R. Parker, Michael A. Middleton, Thomas J. Ginger, Jackson, Miss., for plaintiffs.

Joseph P. Wise, Thomas G. Lilly, John E. Stone, City Atty., Jackson, Miss., for defendants.

POST-REMAND SUPPLEMENTAL MEMORANDUM OPINION

WALTER L. NIXON, Jr., District Judge.

I. INTRODUCTION — BACKGROUND

This class action was filed by Henry J. Kirksey and sixteen other black citizens and registered voters of Jackson, Mississippi¹ on March 10, 1977 after the defeat of a city-wide referendum held on February 22, 1977 on the issue of changing Jackson's city government from the present three-member commission form, consisting of the mayor and two commissioners, all elected at large in citywide voting to four-year terms of office, to a mayor-council form, under which the council members would have been elected from single-member districts or wards. The plaintiffs contend that the present at-large system for electing the mayor and two city commissioners abridges the rights of the city's black citizens secured by the Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution and 42 U.S.C. §§ 1971, 1973 and 1983. Jurisdiction is premised on 28 U.S.C. §§ 1331, 1343 and 2201, and 42 U.S.C. §§ 1971(d) and 1973j(f).

Named as defendants are the city, its mayor and two commissioners who were sued individually and in their official capacities, the Jackson Municipal Democratic Executive Committee and its chairman, and the Jackson Municipal Election Commission and its members. The Jackson Municipal Republican Executive Committee and its chairman were dismissed as defendants by Order of this Court dated March 28, 1977.

On March 21, 1977, the plaintiffs filed a Motion for Preliminary Injunction, seeking to halt the municipal Democratic and Republican primary elections scheduled for May 10, 1977 and the municipal general election scheduled for June 7, 1977. On March 31, 1977, after an extensive hearing on the motion, this Court, in a bench opinion, denied plaintiffs' Motion for Preliminary Injunction. This denial was affirmed on appeal to the United States Court of Appeals for the Fifth Circuit on April 21, 1977. The Court of Appeals directed this Court "to expedite hearing on the merits at the earliest feasible time." Kirksey v. City of Jackson, 552 F.2d 156 (5th Cir. 1977). Subsequently, this case was tried on its merits on July 6-8, 1977 during which extensive evidence was adduced, and the Court found for the defendants after applying the principles of both Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd. per curiam on other grounds, sub nom. East Carrol Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), which at that time was the polestar of the Fifth Circuit on the question of voter dilution and methods of proof thereof, and Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). This Court rendered its Memorandum Opinion in this case on August 30, 1978, making specific Findings of Fact and reaching specific Conclusions of Law as dictated by the Fifth Circuit in Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978) and its companion cases. See Kirksey v. City of Jackson, Miss., 461 F.Supp. 1282 (S.D.Miss. 1978). In its "Conclusion" this Court found that

Under the facts of this case, the plaintiffs have failed to prove that the claimed dilution was the result of any invidious discriminatory purpose or intent. In the aggregate the Zimmer criteria do not point to intentional discrimination as a motivating factor in either the enactment or maintenance of the present form of municipal government and the present electoral process in Jackson, Mississippi. Id. at 1314.

This Court's decision was appealed to the Fifth Circuit, and oral argument was scheduled by the court for May 7, 1980. Prior to that time, on April 22, 1980, the United States Supreme Court rendered its decision in City of Mobile, Ala. v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), in which the Supreme Court reversed the lower courts and held that the plaintiffs' satisfaction of the criteria set out in Zimmer v. McKeithen, supra, standing alone, was insufficient to establish a discriminatory purpose or intent. The Supreme Court relied primarily upon its earlier decisions in Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); and Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).

Oral argument of this case was made before a panel of the Fifth Circuit as scheduled on May 7, 1980, and despite the fact that both the appellants and appellees urged the court of appeals to decide this case on the record before it, the Fifth Circuit, consistent with the usual practice of appellant courts in a situation of this type, declined to do so, and on August 13, 1980 vacated this Court's 1978 Judgment and remanded this case for a supplemental evidentiary hearing and reconsideration in light of the Supreme Court's intervening decision in City of Mobile, Ala. v. Bolden, supra. See Kirksey v. City of Jackson, Mississippi, 625 F.2d 21 (5th Cir. 1980). In its per curiam opinion remanding this case, the court of appeals stated that although it was unable to decide the appeal at that time, it recognized the importance of this case and its urgency in terms of the impending 1981 City of Jackson municipal elections and went on to state:

Therefore we make clear that on the remand the parties shall be free, subject to the initial control of the District Judge, to offer further evidence, to be considered in conjunction with the present record which need not be repeated. Furthermore, we direct that reconsideration and decision of this case be expedited by the Trial Court.... Id. at 22.

II. POST-REMAND PROCEEDINGS

A. Pretrial Conference and Proceedings.

On August 20, 1980, six days after receipt of the Fifth Circuit Opinion remanding this case, this Court called a conference of counsel for the purpose of discussing the status of the case and establishing ground rules for the post-remand preparation and trial of this case, in which the parties would be given the opportunity to offer further evidence, to be considered in conjunction with the record of the original trial, in accordance with the opinion of the Fifth Circuit. At that conference counsel for both sides advised the Court that the supplemental hearing would probably be concluded in two days, and that the presentation of further expert testimony was not anticipated. During the conference the plaintiffs were directed to provide the defendants with a statement of issues to be presented and decided at the hearing as well as a list of their witnesses, by September 5, 1980. The defendants were instructed to submit the same information to the plaintiffs by September 15, 1980. At the conclusion of the conference the parties were advised by the Court that a trial date would be set in late October or early November, 1980, which would be announced in the immediate future by the Court after it had an opportunity to check its schedule and make some necessary changes. The Court also instructed counsel that application for leave to conduct discovery should be made directly to the Court.

By letter of September 9, 1980 plaintiffs' counsel requested an extension of time until September 19, 1980 to submit the plaintiffs' "Proposed Pretrial Order," and the requested extension was granted without objection of the defendants. Subsequently, on September 12, 1980 the parties were notified by the Court that the post-remand or supplemental trial would be conducted on October 27, 1980.

On September 20, 1980 the defendants received the plaintiffs' "Proposed Pretrial Order" which incorporated a list of witnesses, at least four of whom were experts.² Defendants' counsel obtained an agreed extension of time until October 9, 1980 to submit their statement of issues and list of witnesses, and on October 1, 1980 sought leave to submit a limited set of interrogatories and depose the plaintiffs' witnesses after receipt of expedited responses. This Court issued an appropriate order on October 2, 1980 and the defendants filed their interrogatories on that date, directing the plaintiffs to respond thereto by October 13, 1980.

By letter of October 3, 1980, a request to conduct some discovery was made by the plaintiffs, which was granted by Order dated October 9, 1980 which in addition required the defendants to respond to the plaintiffs' interrogatories by October 17, 1980. Also, on October 9, 1980 the defendants timely submitted their statement of issues and list of witnesses to the Court and opposing counsel.³

The plaintiffs' responses to the defendants' interrogatories which were due October 13, 1980 were hand delivered to defendants' counsel on the evening of October 14, 1980 and contained a second list of eleven witnesses, at least four of whom were experts.⁴ John L. Grimm, M.B.A., was listed for the first time as a witness (expert), and it was stated that he would testify as to "factors influencing 1977 voters to retain commission form of government." It was further stated that Mr. Grimm at that time had not completed collection and analysis of the data upon which his opinion would be based. In response to the defendants' interrogatory concerning materials relied upon by Grimm in preparing his testimony and formulating opinions, five treatises were listed, and it was stated that he would also rely upon "questionnaires and computer printouts not yet in existence." Plaintiffs' Answers to Defendants' Interrogatories at pages 5 and 7.

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