Mallory v. Eyrich

• Decision Date: 18 July 1989
• Docket Number: Civ. No. C-1-86-1056.
• Citation: 717 F. Supp. 540
• Parties: William MALLORY, et al., Plaintiffs, v. George C. EYRICH, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

717 F. Supp. 540

William MALLORY, et al., Plaintiffs, v. George C. EYRICH, et al., Defendants.

Civ. No. C-1-86-1056.

United States District Court, S.D. Ohio, W.D.

July 18, 1989.

Thomas Atkins, Margaret Ford, Brooklyn, N.Y., James Hardiman, Cleveland, Ohio, Peter Randolph, Cincinnati, Ohio, for plaintiffs.

James Harper, Cincinnati, Ohio, Andrew Sutter, Bennett Manning, Columbus, Ohio, for defendants.

ORDER

CARL B. RUBIN, Chief Judge.

I. Introduction

This matter was commenced by a complaint filed on October 16, 1986. Suit was brought by named plaintiffs William Mallory, Arthur Primus, Vera Johnson, Charles Collins and Mary Ann Randolph against the following Defendants: George C. Eyrich, Chairman of the Hamilton County Board of Elections; John H. Hermanies, John A. Wiethe, and Don Driehaus, Members of the Hamilton County Board of Elections; the State of Ohio; Richard F. Celeste, Governor; and Sherrod Brown, Secretary of State. The complaint alleged that Ohio Revised Code § 1901.07 violated § 2 of the Voting Rights Act of 1965 as amended in 1982 (42 U.S.C. § 1973) (Act). Ohio Revised Code § 1901.07 provides in part for the creation of the Hamilton County Municipal Court whose judges "shall be elected by the electors of the territory within the jurisdiction of the court at the regular municipal election and in the same manner provided by law for the election of judges for the Court of "Common Pleas...." Both the Municipal Court and the Common Pleas Court have jurisdiction coterminous with the geographical limits of Hamilton County, Ohio, and each is composed of multiple judges all of whom are elected by all of the electors of Hamilton County.

Section 2 of 42 U.S.C. § 1973 as amended in 1982 provides:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2) 42 USCS § 1973b(f)(2), as provided in subsection (b).

(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

Defendant Hamilton County Board of Elections filed a Motion for Summary Judgment (doc. 20), memoranda were filed by both sides and a hearing was held in open court on July 24, 1987. Pursuant to those memoranda and that hearing, this Court issued an Order on August 11, 1987, granting the Motion for Summary Judgment (doc. 29). That Order was subsequently published in 666 F.Supp. 1060 to which reference is hereby made. The basis of the motion was a limited one. The findings of the Court were equally limited. The sole issue considered was the applicability of the Act to the elected position of Judge. This Court held that it did not apply.

An appeal was taken to the United States Court of Appeals for the Sixth Circuit. On February 12, 1988, a panel consisting of The Honorable Pierce Lively, Chief Judge, The Honorable Harry Wellford, Circuit Judge, and The Honorable Robert M. McRae, Senior Judge of the United States District Court for the Western District of Tennessee, reversed the holding of this Court in an opinion published in 839 F.2d 275 (6th Cir.1988).

Just as this Court's holding was a limited one, so the determination by the United States Court of Appeals for the Sixth Circuit was equally limited. Portions, however, of that Court's opinion are pertinent in the further consideration of this litigation. In the majority opinion written by then Chief Judge Lively the following appears:

As previously noted, the district court stated in its order that the record would support granting relief to the plaintiffs under a "results" standard. The plaintiffs urge us to treat this as the district court's ultimate finding if we conclude that Section 2 applies, and remand only for development of an appropriate remedy. Since the case was decided by the district court on summary judgment without a fully developed record, we believe the better course is to remand on all issues. (emphasis added).

It should be noted in passing that this is a matter of first impression in this Circuit and indeed little, if any, instruction is available in any circuit. It is for that reason that any assistance by way of direction from an appellate court should be scrutinized carefully in order to proceed further in an appropriate fashion. In this regard, the concurring opinion of Judge Wellford is likewise instructive. That concurrence contains the following language:

I write to emphasize that the Voting Rights Act, as amended, does not assure that candidates, by reason of race or color, should be elected in proportion to their percentage of the voting population at any given time. 42 U.S.C. § 1975(b) establishes no "right to have members of a protected class be elected in numbers equal to their proportion in the population." The effect of our decision is to remand this case for the opportunity of the parties to develop evidence, including the results of the judicial election which plaintiffs unsuccessfully sought to enjoin. (Emphasis added)

Upon remand this matter was returned to the trial docket of this Court for the purpose of establishing the record requested. Both sides thereupon filed Motions for Summary Judgment. Those motions and the appropriate memoranda include documents 14, 20, 21, 36 and 37. On February 24, 1989, this Court denied summary judgment to each side (doc. 42) and assigned this matter for trial. 707 F.Supp. 947. Such trial was scheduled to begin on May 8, 1989. In preparation thereof a Final Pretrial Conference was held on April 19, 1989, and a Final Pretrial Order issued (doc. 45). At no time prior to one week before trial was it ever suggested by either side that this matter could be decided without a full trial to the Court with the presentation of evidence and testimony. On May 5, 1989, however, Defendants State of Ohio, Richard F. Celeste, Governor of Ohio, and Sherrod Brown, Secretary of State of Ohio, offered to allow judgment to be taken against them pursuant to Rule 68, Fed. R.Civ.P. (doc. 47). At the same time the Board of Elections of Hamilton County, Ohio, likewise offered to consent to judgment with Mr. Brown, Secretary of State, casting a tie-breaking vote under Ohio Revised Code § 3501.11 (doc. 51). Members Eyrich and Hermanies of the Hamilton County Board of Elections voted against such offer. The Plaintiffs in this matter thereupon accepted the offer of judgment and requested the Clerk of this Court to enter liability judgment in Plaintiffs' favor (doc. 46).

On May 15, 1989, Defendant George C. Eyrich moved to dismiss the action for lack of subject matter jurisdiction in the absence of a genuine controversy between the parties (doc. 48). Memoranda in opposition to such motion have been filed (doc. 49 and 52) and now this matter is before the Court for decision on such motion.

The status of this matter calls into question some fundamental considerations of the relationship between the federal courts and the state legislature, the inherent power of the General Assembly of Ohio, the Constitution of the State of Ohio and the ability of a trial court to follow instructions given to it by an appellate court. Such issues go far beyond the specific controversy set forth herein. A matter of this consequence should be reviewed by an appellate court and hopefully by the Supreme Court of the United States. This Court therefore proposes to examine the current problem in some detail.

II. Significant Decisions

While the Court finds no appellate case precisely on point, there are precedential decisions available for guidance.

A. Whitcomb, Governor of Indiana v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971).

Suit was brought challenging state statutes of Indiana establishing Marion County as a multimember district for the election of state senators and representatives. The plaintiffs had alleged that the laws invidiously diluted the votes of negroes and poor persons and that voters in multimember districts were overrepresented. A Three Judge Court held that the statutes operated to minimize and cancel out the voting strength of the minority group and that the statutes in question were unconstitutional. The Supreme Court of the United States reversed that decision.

Whitcomb v. Chavis predates the 1982 amendment of the 1965 Voting Rights Act. It is not suggested as controlling in this matter. It is the opinion of Justice Douglas, however, that is persuasive and worthy of note. In an opinion which concurred in part and dissented in part from the majority, Justice Douglas made the following observation:

The merits of the case go to the question ... whether a gerrymander can be "constitutionally impermissible." The question of the gerrymander is the other half of Reynolds v. Sims, 377 U.S. 533 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Fair representation of voters in a legislative assembly—one man, one vote—would seem to require (1) substantial equality of population within each district and (2) the avoidance of district lines that weigh the power of one race more heavily than another. The latter can be done—and is

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