Lipscomb v. Wise, Civ. A. No. CA 3-4571-E.

• Decision Date: 25 March 1975
• Docket Number: Civ. A. No. CA 3-4571-E.
• Parties: Albert L. LIPSCOMB et al. v. The Honorable Wes WISE, Mayor of the City of Dallas, et al.
• Court: U.S. District Court — Northern District of Texas

399 F. Supp. 782

Albert L. LIPSCOMB et al. v. The Honorable Wes WISE, Mayor of the City of Dallas, et al.

Civ. A. No. CA 3-4571-E.

United States District Court, N. D. Texas, Dallas Division.

March 25, 1975.

James A. Johnston, Johnston & Dixon, Sylvia M. Demarest, Dallas Legal Services, Edward B. Cloutman, III, Mullinax, Wells, Mauzy & Baab, Walter L. Irvin, Hudson & Irvin, Thomas W. Pauken, Dallas, Tex., for plaintiffs.

N. Alex Bickley, City Atty., Asst. City Attys. Joseph Werner, Lois Bacon and Lee Holt, Dallas, Tex., for defendants.

Frank P. Hernandez, Dallas, Tex., for intervenor Mexican-Americans.

MEMORANDUM OPINION

MAHON, District Judge.

This challenge to the present electoral system for the Dallas City Council has progressed a winding path to trial. Filed in 1971, the suit was originally dismissed for failure to state a claim upon which relief could be granted. On appeal, the Fifth Circuit remanded with clarification of what plaintiffs' burden would be in these circumstances. Lipscomb v. Jonsson, 459 F.2d 335 (5th Cir. 1972).

I.

Plaintiffs originally purported to represent the black population residing within an identifiable area of the City of Dallas, but prior to December 9, 1974, no order certifying this cause as a class action was entered. The Court originally began to hear testimony on this matter during the week of July 15, 1974. After approximately one and a half days of testimony, the Court, on its own motion, and out of an abundance of caution, suspended testimony pending resolution of the possibility that the matter might have been one of state-wide rather than local concern, and therefore appropriate for a three-judge court determination. The case was determined to be one appropriate for a single judge to hear, and the cause was reset for hearing for the week of December 9, 1974.¹ On the day of the trial, the Court entered an order, certifying the matter as a class action; the class consisting of all blacks residing within the corporate limits of the City of Dallas. The order also denied a pending motion for leave to intervene on behalf of certain Mexican-Americans as parties plaintiff. This denial was with the specific right of the proposed intervenors to participate in any subsequent hearing that may be held concerning the manner of appropriate relief if the present election system was held to be constitutionally defective. The order provided in part that:

"It appeared that on the initial filing of this lawsuit on the 10th day of March, 1971, there were included as plaintiffs members of the Mexican-American Class and the action was on behalf of all the minority groups including the Blacks and Mexican-Americans who live within the City of Dallas. The defendants sought to elicit written interrogatories from all of the plaintiffs. Certain of the plaintiffs refused to respond to the interrogatories and upon contact by their counsel continued to refuse to respond. Included in this group were all of the Mexican-American Race originally included as plaintiffs in the lawsuit.

Upon motion duly made and hearing had, the Court dismissed from the lawsuit all of those members of the plaintiff's class who refused to respond to written interrogatories. Included within this group were all those of Mexican-American descent.

Prior to the entry of this Order the plaintiffs had amended their pleadings by their Second Amended Original Complaint and included in the Amended Complaint were both the Black and Brown citizens of Dallas. However, counsel determined that after all of the Mexican-American plaintiffs were dismissed, and having no individual Mexican-American plaintiff, that they could no longer represent the Mexican-Americans as a class and therefore urged the Court to consider this an action with the class being those Black citizens residing within the city limits of the City of Dallas.

After a portion of the case had been presented to the Court and the trial had been commenced and recessed, the intervenors filed their motion on July 16, 1974, for the purpose of intervening on behalf of the Mexican-American citizens in the City of Dallas. The testimony previously presented to this Court shows that this class represents approximately 8% of the population of the City of Dallas, the housing pattern is such that they are spread throughout the city limits of Dallas and are not a predominant factor in any concentrated census tract groups, and in view of these facts, the Court is of the opinion that to allow the intervention at this time would result in many difficulties in the management of this case as a class action and it would result in a delay that would possibly take the case beyond the time of the City Council election and the time that candidates need to file their candidacy. Moreover, the Court is of the opinion that to permit this intervention at this late hour would not assist the Court in resolving the issue of the constitutionality of the present at-large system."

After this order was entered, testimony was resumed on the question of whether the existing manner of electing members of the Dallas City Council was constitutional. On January 17, 1975, the Court found the present system of electing members to the Dallas City Council constitutionally infirm. Dallas was afforded an opportunity to come forward with an apportionment plan which would meet constitutional standards and testimony was heard on the merits of the city's proposal the week of February 4, 1975. Testimony at the remedy stage took over two days.

II.

This suit is not the conventional one person one vote reapportionment case; rather it is an attack alleging dilution of the racial minority vote. The dilution is said to arise from operation of the atlarge system of electing Dallas City Council which provides that every candidate for council run city wide, and face all the voters of the city. The Dallas City Charter requires that the city be divided into eight residential districts for City Council elections. Any person seeking election for any of the "places" on the ballot corresponding to the eight districts, must reside in the respective district. Three members, including the mayor, run without regard to any residence requirement. Voting for all eleven council seats is at-large, that is, on a city wide basis, regardless of the residency requirement. A majority of all votes cast for the councilmen, for the place for which the person is running, is required for election.

Dallas adopted its present council-manager form of government in 1931. Prior to that time it had a commission form of government, but since at least 1907, members of the city government have been elected on an at-large basis.

The number of positions on the City Council has been enlarged from time to time, the latest change being in 1968 when, by charter amendment it was increased from nine to the present eleven seats. The City Council elects from among its members two councilmen to hold the positions of Mayor Pro-Tem, and Deputy Mayor Pro-Tem. As noted above, all positions to council are elected by a vote of the entire city.

The alleged dilution of the black citizens vote was said to have its genesis in the racially segregated housing pattern present in the City of Dallas. Plaintiffs' uncontradicted evidence showed the existence of what was variously called a minority or inner city area. The characteristics of this geographical area were developed by use of United States Census demographic data and the area was described as being more or less contiguous, extending from the city's South side, north to the city's central business district, curving northwest across the business district to the city's Love Field area. Within this area are located some forty-odd standard statistical community census tracts as defined by the United States Census Bureau. Plaintiffs' experts gave testimony concerning the racial and socio-economic composition of the minority area and offered exhibits in summary. The black population of Dallas is 210,227.² The evidence shows that the minority area contains a black population which is 90% of all residents in the area. This means that nine out of every ten residents are black, of all the black residents in the city of Dallas, 93% reside within this area; of all the black residents of Dallas County, 95% were shown to reside here. In addition to the distinct racial composition of the inner city area, other characteristics were shown. A less desirable rating on many economic indicators of well-being were shown to exist here. For example, housing was shown to be generally of less value and of lower quality in the inner city area. The median grade level of schooling attained by residents of this area was shown to be less than for the non-minority areas. Unemployment was higher. Median income was lower. In general, the socio-economic indicators purporting to show "quality of life" were less favorable when compared with other areas of Dallas.

The voting patterns of the inner city area in relation to the voting patterns of the rest of the city with regard to elections for City Council positions were examined. The testimony was concerned with who carried the black area and how that candidate fared in the city elections at large. Examples from five elections demonstrate the pattern which emerged from this testimony. The first two elections concern place three for the subsequent election years of 1959 and 1961. The 1959 election presented a black vs. white contest. The black candidate in that election polled some 87% of the votes from the above-described inner city. His white opponent polled some 73% of the vote from the non-minority area. The result, when translated into vote totals, gave the white candidate a 65% total of all votes cast and made him the election winner. The 1961 election pitted a black against two white opponents. Here, the black candidate played the role of spoiler, forcing a run-off between his two white opponents. In...