Kirksey v. City of Jackson, Miss.

• Decision Date: 28 August 1978
• Docket Number: Civ. A. No. J77-0075(N).
• Citation: 461 F. Supp. 1282
• Parties: Henry J. KIRKSEY, Fred L. Banks, Jr., Carsie A. Hall, Henrene Matthews, Herman "Tex" Wilson, Shawn Knox, Malcolm T. Shepherd, Ricky L. Taylor, Annie K. Ward, Irene Shepherd, Rubie J. Tobias, Fannye B. White, Roy Milton Shelby, Monzell Stowers, Perthean Toins, Reverend Horace L. Buckley, and Douglas L. Anderson, Plaintiffs, v. CITY OF JACKSON, MISSISSIPPI, Russell C. Davis, Mayor, Thomas B. Kelly, Commissioner, and Douglas W. Shanks, Commissioner, Individually and in their official capacities as members of the City Council of the City of Jackson, City of Jackson Municipal Democratic Executive Committee, R. E. Wooley, Chairman of the City Democratic Executive Committee, City of Jackson Municipal Election Commission, Edmund Johnston, Jr., Mrs. Bernice Denmark, and Albert P. Dillon, members of the City Election Commission, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

461 F. Supp. 1282

Henry J. KIRKSEY, Fred L. Banks, Jr., Carsie A. Hall, Henrene Matthews, Herman "Tex" Wilson, Shawn Knox, Malcolm T. Shepherd, Ricky L. Taylor, Annie K. Ward, Irene Shepherd, Rubie J. Tobias, Fannye B. White, Roy Milton Shelby, Monzell Stowers, Perthean Toins, Reverend Horace L. Buckley, and Douglas L. Anderson, Plaintiffs, v. CITY OF JACKSON, MISSISSIPPI, Russell C. Davis, Mayor, Thomas B. Kelly, Commissioner, and Douglas W. Shanks, Commissioner, Individually and in their official capacities as members of the City Council of the City of Jackson, City of Jackson Municipal Democratic Executive Committee, R. E. Wooley, Chairman of the City Democratic Executive Committee, City of Jackson Municipal Election Commission, Edmund Johnston, Jr., Mrs. Bernice Denmark, and Albert P. Dillon, members of the City Election Commission, Defendants.

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

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

August 28, 1978.

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.

MEMORANDUM OPINION

NIXON, District Judge.

This Memorandum Opinion shall constitute this Court's specific findings of fact and conclusions of law required by Rule 52, F.R.Civ.P. and mandated by the United States Court of Appeals for the Fifth Circuit in its opinion of March 29, 1978, in the four consolidated voting dilution cases of Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978) (hereinafter referred to as Nevett II); Bolden v. City of Mobile, Alabama, 571 F.2d 238 (5th Cir. 1978); Blacks United, Etc. v. City of Shreveport, 571 F.2d 248 (5th Cir. 1978); and Thomasville Branch of N.A.A. C.P. v. Thomas City, Ga., 571 F.2d 257 (5th Cir. 1978).

This action was brought by Henry J. Kirksey and other black plaintiffs, all registered voters of Jackson, Mississippi, and representing all black citizens and black registered voters of Jackson as a class, contending that the present at-large system of electing the mayor and two city commissioners for the City of Jackson abridges the rights of the city's black citizens as secured by the Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution and 42 U.S.C. §§ 1971, 1973 and 1983.¹

The plaintiffs allege that the existing commission form of government² which consists of two commissioners and a mayor who also functions as a commissioner, each of whom is a fulltime employee assigned specific functions, i. e., responsible for supervising the work of several specified city departments, and elected from the city at-large to four-year terms of office without any subdistrict residency requirement, unconstitutionally discriminates against black residents of Jackson by diluting or cancelling out their voting strength. They also complain of a denial of their statutory rights under 42 U.S.C. §§ 1971, 1973 and 1983.

Jurisdiction of this action is premised on 28 U.S.C. §§ 1331, 1343, and 2201, and 42 U.S.C. §§ 1971(d) and 1973f.

The defendants are the City of Jackson, a municipal corporation, the former city council consisting of Mayor Russell C. Davis and Commissioners Thomas B. Kelly and Douglas W. Shanks, sued individually and in their official capacities;³ the Jackson Municipal Democratic Executive Committee and its chairman and the Jackson Municipal Election Commission and its members. The Jackson Municipal Republican Committee and its chairman were dismissed as defendants by Order of this Court dated March 28, 1977.

The verified complaint was filed herein on March 10, 1977, after the defeat of a citywide referendum held on February 22, 1977 on the issue of changing the form of city government in Jackson to that of a mayor-council under which the council members would have been elected from seven single-member districts or wards. The plaintiffs seek (1) a declaratory judgment that at-large, citywide voting for members of the Jackson City Council under the commission form of government unconstitutionally minimizes and cancels out black voting strength; (2) an injunction enjoining any further municipal primary or general elections for members of the city council on the basis of at-large, citywide voting; (3) an order requiring the defendants to adopt and place into effect a mayor-council form of government authorized by Miss.Code Ann. §§ 21-8-1, -47. (Supp.1976), providing for the election of nine members of the city council from nine single member districts, at least three of which would have black voting majorities; and (4) attorneys' fees, necessary expenses of this litigation, taxable costs and such other relief as may be just and equitable.

The defendants admit that the plaintiffs are black citizens and registered voters of Jackson; that Jackson is majority white in population, voting age population, and registered voters; that in the past blacks have been discriminated against both in Mississippi and in Jackson; that since the Commission form of government was adopted in Jackson in 1912, no blacks have been nominated or elected to any position on the Jackson City Council, although several have been candidates therefore; that there are no ward or district residency requirements for candidates; that Jackson municipal elections are governed by a majority vote requirement to win party nomination or a special election to fill a vacancy; and that there is a full-slate or anti-single shot voting requirement.

Plaintiffs filed a Motion for Preliminary Injunction on March 21, 1977, seeking to halt the municipal Democratic and Republican 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 an oral bench opinion denied plaintiffs' Motion for Preliminary Injunction. This denial was appealed to the United States Court of Appeals for the Fifth Circuit, which, on April 21, 1977, denied plaintiffs' Motion for a Preliminary Injunction, pending appeal, to halt the then upcoming municipal primary and general elections. The Fifth Circuit directed this Court to "expedite the hearing on the merits at the earliest feasible time," Kirksey v. City of Jackson, 552 F.2d 156 (5th Cir. 1977), and on remand, pursuant to the mandate of the Fifth Circuit, this Court tried this case on July 6 thru 8, 1977.

I. VOTING DILUTION PRINCIPLES AND METHOD OF PROOF

This Court recognizes its obligation to make specific findings under each of the principal and enhancing criteria articulated 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), the polestar of this Circuit which sets forth the constitutional precepts of White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), as mandated by the Fifth Circuit in Nevett II and its companion cases. After specific factual findings are made under each of the Zimmer criteria, we must then determine whether the aggregate of the evidence preponderates in favor of a finding of dilution by fully weighing and balancing all of the specific findings made in conformity with the Zimmer criteria.

The necessity of following the foregoing mandated procedure emanates from the Court of Appeals' holding in Nevett II and its companion cases that Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) requires the plaintiffs in a voter dilution case, also referred to as a "qualitative" reapportionment case, to prove by a preponderance of the evidence intentional or purposeful discrimination in racially based voting dilution claims founded on both the Fourteenth and Fifteenth Amendments to the United States Constitution. Nevett II, supra at 219.

The en banc court in Zimmer synthesized the dilution principles of Regester and Chavis by establishing certain primary and enhancing factors that a District Court must address in deciding a dilution case. The factors which are seen to go primarily to the ultimate issue of dilution are: (1) access to the process of slating candidates; (2) responsiveness of representatives to the particular needs of the complaining minority; (3) presence or absence of a tenuous state policy in favor of at-large districting; and (4) existence of past discrimination that precludes effective participation by a minority in the electoral system. The foregoing criteria go primarily to the issue of denial of access or dilution, that is, the denial to minority voters of a real opportunity to meaningfully participate in the political process, and not just the right to cast a vote that can be completely ignored under the provision of governmental protection and governmental services because an election system is so operated as to make that vote meaningless in the election outcome.

Zimmer also established what is referred to as enhancing factors, that is, certain structural voting devices that may enhance the underlying dilution, if any, that exists. These are: (a) the size of the district in question; (b) the portion of the vote necessary for election (majority or plurality); (c) whether positions are contested for individually, and the number of candidates for which an elector must vote (anti-single shot voting provisions); and (d) whether candidates must reside in geographic sub-districts.

Nevett II and its companion cases hold that the required showing of intentional discrimination which is essential to a valid voter dilution claim under both the Fourteenth and Fifteenth Amendments may be satisfied by direct or circumstantial evidence, the former, although easily establishing a case of voter dilution, being very rare and difficult to prove, thus resulting in an inquiry of whether plaintiffs have succeeded in...