Knox v. MILWAUKEE COUNTY BD. ELECTION COM'RS

• Citation: 607 F. Supp. 1112
• Decision Date: 19 April 1985
• Docket Number: No. 83-C-2039.,83-C-2039.
• Parties: Vincent K. KNOX, et al., Plaintiffs, and United States of America, Plaintiff-Intervenor, v. MILWAUKEE COUNTY BOARD OF ELECTION COMMISSIONERS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

607 F. Supp. 1112

Vincent K. KNOX, et al., Plaintiffs and United States of America, Plaintiff-Intervenor, v. MILWAUKEE COUNTY BOARD OF ELECTION COMMISSIONERS, et al., Defendants.

No. 83-C-2039.

United States District Court, E.D. Wisconsin.

April 19, 1985.

Richard Congdon, Waukesha, Wis., for plaintiffs Knox, et al.

Patricia J. Gorence, Milwaukee, Wis., and Paul Hancock, U.S. Dept. of Justice, Washington, D.C., for plaintiff-intervenor United States.

George E. Rice, Milwaukee, Wis., for defendant Milwaukee County Bd. of Election Com'rs.

DECISION AND ORDER

BACKGROUND

WARREN, District Judge.

On May 15, 1984, approximately three months after this Court issued its order denying their motion for preliminary injunctive relief, 581 F.Supp. 399, the plaintiffs filed an amended complaint in this action alleging, as before, violations of Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973, and of 42 U.S.C. § 1983, for deprivations of rights secured under the Fourteenth and Fifteenth Amendments to the United States Constitution.

Specifically, the plaintiffs charge that a reapportionment plan, based on 1980 census statistics and approved by the defendants in February and March of 1982, unfairly adjusted the various boundaries of the Milwaukee County supervisory districts. Specifically, it is the plaintiffs' principal contention that the challenged redistricting plan unlawfully dilutes black and Hispanic voting strength by denying members of those minority groups an equal opportunity to participate in the electoral process and to elect candidates of their choice to public office. The plaintiffs explain the motivation for their challenge to the 1982 reapportionment as follows:

Voting in the County of Milwaukee is and has been racially polarized in elections in which a black or Hispanic candidate has run for office, with white voters generally voting for white candidates, and black or Hispanic voters voting for non-white candidates for elective office.

Black and Hispanic citizens of the County of Milwaukee have long suffered from and continue to suffer from the results and effects of invidious discrimination and treatment in education, employment, income, health, living conditions, and other related areas.

The County governing board has been and is unresponsive to the particular needs, interests and concerns of the black and Hispanic communities.

Plaintiffs' Amended Complaint at 3-4 (May 16, 1984).

Based on their implicit contention that the boundaries established by the redistricting plan effectively prevent them from remedying the effects of the discrimination that they have suffered, the plaintiffs, as indicated above, seek declaratory judgment that the reapportionment plan unlawfully diminishes their voting strength, thereby denying to them those rights secured by Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973; 42 U.S.C. § 1983; and the Fourteenth and Fifteenth Amendments to the United States Constitution. By the ad damnum clause of their complaint, the plaintiffs also seek an order permanently enjoining the defendants and their agents from "any further implementation or enforcement of, and from holding any further primary or general elections under said plan," Plaintiffs' Amended Complaint at 5 (May 16, 1984), and, in this context, request that the Court implement a new plan for the election of members of the Milwaukee County Board of Supervisors that effectively remedies the civil rights violations complained of. Finally, the plaintiffs seek recovery of those reasonable attorneys' fees and costs incurred in their prosecution of this case, along with such other relief as the Court may find just and equitable.

By their answer of June 6, 1984, to the plaintiffs' amended complaint, the defendants deny all material allegations incorporated therein and object, in particular, "to application of venue of the court in respect to any jurisdiction over the Milwaukee County Board of Supervisors in that all members of said board who adopted on February 18, 1982 the ordinance being questioned have not been named as co-defendants or served with process so as to obtain in personam jurisdiction." Defendants' Answer at 1 (June 6, 1984). Significantly, the defendants also raise by their answer some six affirmative defenses— namely, that the plaintiffs have failed to exhaust those administrative and legislative remedies available to them; that they are guilty of laches and thus undeserving of equitable relief; that this matter is not properly certified as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure; and that Chapter 3 of the County General Ordinances, formally implementing the challenged redistricting plan, is presumed to be constitutional. Most importantly, however, the defendants reaffirm their companion positions, first articulated at the hearing on the petition for injunctive relief, that the plaintiffs' failure to serve each of the county supervisors responsible for adoption of the reapportionment plan prevents this Court from exercising personal jurisdiction and that Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973, is unconstitutional as applied to this case; in the defendants' view, that statute

violates the separation of powers doctrine; is in violation of Article IX and Article X Amendments to U.S. Constitution and Article XIV, Section 1 Amendments to U.S. Constitution, and further that said law has no application to the Milwaukee County Board of Supervisors redistricting in 1981-1982 in that it constitutes a type of ex post facto legislation which results in a manifest injustice if applied retroactively thereby violating Article I, section 9, 3rd clause of the U.S. Constitution, as well as principles of application pronounced by the U.S. Supreme Court to prevent manifest injustice when retroactivity is being attempted.

Defendants' Answer at 3 (June 6, 1984).

Presently before the Court in this matter are the four motions filed by the parties since the Decision and Order of February 17, 1984, 581 F.Supp. 399, denying the plaintiff's motion for a preliminary injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure: Approximately one month after the plaintiffs completed service of their amended complaint, the defendants filed a motion to dismiss that pleading on the basis that, as first argued some fourteen months ago, service was not effected on each of the 25 members of the Milwaukee County Board of Supervisors actually responsible for the adoption, on February 18, 1982, of the challenged reapportionment plan. Several weeks later, on August 6, 1984, the defendants filed a companion motion to dismiss the action pursuant to the equitable doctrine of laches and based on their contention that a so-called "retroactive" application of Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973, to the facts of this case would prove unconstitutional. The defendants' two substantive motions have been fully briefed by the parties and are now ripe for resolution. Based on the Court's careful consideration and analysis of the positions articulated in support of and in opposition to dismissal, the Court concludes, for the reasons set forth herein, that both motions must be denied.

The remaining two motions now pending were both filed by the plaintiffs on August 16, 1984; by the first of these, the movants request that all evidence received on the application for preliminary injunctive relief that would be admissible upon the trial on the merits be incorporated in the trial record, pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure. As the parties are aware, the Court granted this motion at the status hearing of September 6, 1984; with today's order, that ruling is formally memorialized. By the last of the four motions now before the Court, the plaintiffs seek certification to prosecute their claims as a class action, pursuant to Rule 23 of the Federal Rules of Civil Procedure. Although this matter is now fully briefed by the parties, the Court will hold resolution of this matter in abeyance pending oral argument, as scheduled herein, on the merits of class certification.

THE DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

As indicated above, the defendants seek dismissal of this action, in part on the basis that, in amending their complaint on May 15, 1984, and serving the present 25 members of the Milwaukee County Board of Supervisors, the plaintiffs "either overlooked or failed to recognize and appreciate that it is not the act of the present County Board of Supervisors that is being challenged but the validity of the act which the county board membership on February 18, 1982 adopted in approving Milwaukee County Ordinance Chapter 3." Defendants' Memorandum in Support of Motion to Dismiss at 1-2 (June 15, 1984). Specifically, the defendants contend that three former members of the board—namely, Paul A. Henningsen, James J. Lynn, and Joseph M. Hutsteiner, each of whom participated in the decision to adopt the challenged redistricting plan and are thus necessary and indispensable parties to this action—were never properly served with the summons and complaint. Characterizing the plaintiffs' civil rights allegations as directed not to the members of the present Milwaukee County Board of Supervisors but to those who voted to adopt Chapter 3 of the County General Ordinances on February 18, 1982, the movants conclude that complete relief cannot be dispensed absent joinder of each member of the previous county board; that the Court's in personam jurisdiction over all necessary parties has thus not been established; and that plaintiffs' amended complaint should accordingly be dismissed.

As a threshold matter, the plaintiffs abide by their position, adopted and argued throughout the proceedings attendant on their request for preliminary injunctive relief, that the...