Nevett v. Sides

• Decision Date: 08 June 1976
• Docket Number: No. 75-1864,75-1864
• Citation: 533 F.2d 1361
• Parties: Reverend Charles H. NEVETT et al., Individually, and on behalf of all others similarly situated, Plaintiffs-Appellees Cross Appellants, v. Lawrence G. SIDES, Individually, and in his capacity as Mayor of Fairfield, Alabama, et al., Defendants-Appellants Cross Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1361

533 F.2d 1361

Reverend Charles H. NEVETT et al., Individually, and on behalf of all others similarly situated Plaintiffs-Appellees Cross Appellants, v. Lawrence G. SIDES, Individually, and in his capacity as Mayor of Fairfield, Alabama, et al Defendants-Appellants Cross Appellees.

No. 75-1864.

United States Court of Appeals, Fifth Circuit.

June 8, 1976.

Frank B. Parsons, Fairfield, Ala., Reid B. Barnes, Charles C. Pinckney, Birmingham, Ala., Wm. J. Baxley, Atty. Gen., James S. Ward, Asst. Atty. Gen., Montgomery, Ala., for defendants-appellants cross appellees.

Wm. M. Dawson, Jr., Edward Still, Birmingham, Ala., for plaintiffs-appellees cross appellants.

Appeals from the United States District Court for the Northern District of Alabama.

Before RIVES, GOLDBERG and GEE, Circuit Judges.

RIVES, Circuit Judge:

Three black citizens who presently reside in Fairfield, Alabama, brought this action on behalf of themselves and all other black citizens residing in Fairfield. The defendants are the City of Fairfield, a municipal corporation, the Mayor of Fairfield, the members of the Fairfield City Council, the City Clerk, and the State Attorney General. The plaintiffs charge that, as applied, the state statute which governs municipal elections in Fairfield ¹ operates to unconstitutionally dilute voting power.

After answers of the defendants, and further refinement of the issues by the pre-trial order, voluminous evidence was introduced. The evidence consisted of documents, testimony from witnesses, and interrogatories and answers thereto by the parties. After each of the two hearings was conducted, the district court dictated into the record the court's findings of fact and conclusions of law.

On February 20, 1975, after the conclusion of the first hearing, the district court "Ordered and Adjudged that parties present a plan to the Court, by May 1, 1975, consistent with the Court's directions as dictated in the Court's findings of fact and conclusions of law."

Pursuant to that order, six different plans were presented, four by the plaintiffs and two by the defendants. The second hearing was on those plans, and the hearing concluded May 24, 1975. On June 6, 1975, the district court entered its final judgment as follows:

It is ORDERED, ADJUDGED and DECREED as follows:

1. The defendants' motion for reconsideration of the court's order of February 20, 1975, requiring modification of the existing system of election of members of the City Council of the City of Fairfield, is hereby denied.

2. Subject to possible modification under the conditions set forth in paragraph 3 below, the City of Fairfield, Alabama, beginning with the City Council elections of August, 1976, shall institute the following system of selection of a nine-member City Council to replace the system currently in effect pursuant to Title 37, § 426 of the Alabama Code:

(a) Eight members of the council shall be elected from single member districts whose boundaries shall follow the outline of districts submitted by the plaintiffs in their plan for eight districts, each member to be elected solely by the voters of his or her respective district.

(b) A city council president, having the powers and duties specified by the laws of the State of Alabama, shall be elected at large by the voters of the City of Fairfield.

3. In the event there is conducted an official special census of the City of Fairfield, the City Council may within two months after the completion of the special census, but not later than May 1, 1976, request modification of the system of election set forth above, in which event the parties may submit to the court new proposals for the selection of members of 4. There being no just reason for delay, this judgment shall constitute a final judgment in this case, though the court retains jurisdiction of the case for the limited purpose of possible future reconsideration of this judgment under the conditions specified above.

the city council from districts apportioned according to the results of the special census.

5. Costs are hereby taxed against the defendants. Plaintiff's motion for award of attorney's fees is denied.

Done this the 6th day of June, 1975.

Sam C. Pointer, Jr.

UNITED STATES

DISTRICT JUDGE

The defendants filed a notice of appeal from each of the orders and judgments; the first entered on February 20, 1975, and the second on June 6, 1975. The plaintiffs moved for reconsideration of the district court's denial of their motion for award of attorney's fees, and on June 20, 1975, the district court refused to reconsider and again denied plaintiffs' motion for attorney's fees. The plaintiffs filed notices of appeal from the order of June 9, 1975, and from the order of June 20, 1975.

The relevant fact findings were either intermingled with or preceded Judge Pointer's conclusions of law. None of the findings of fact, considered separately from the intermingled conclusions of law, can be set aside as clearly erroneous. Rule 52(a) F.R.Civ.P. We attach to this opinion the findings of fact and conclusions of law made after the hearing which concluded February 20, 1975, as Appendix A, and those which concluded after the hearing of May 24, 1975, as Appendix B.

The appeals and cross appeals of the parties present for this court's disposition the following issues: (1) Did the district court err in deciding that the Fairfield City Council was malapportioned? (2) Did the district court err in rejecting the two plans presented by the defendants or in accepting one of the plans presented by the plaintiffs? (3) Did the district court err in adding one at-large member to the plaintiffs' suggested single-member plan? (4) Did the district court err in refusing to grant plaintiffs an award of attorney's fees? We vacate the judgments and remand the case for further proceedings not inconsistent with this opinion as more specifically outlined in the concluding paragraph.

In Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), ² after recognizing that multi-member districting schemes are not per se unconstitutional, id. at 1304, we stated that when there is no claim of a racially motivated gerrymander, plaintiff has the burden of proving that a plan operates to dilute the voting strength of racial elements in the population in order to establish the existence of a constitutionally impermissible redistricting plan, and we outlined the factors that prove dilution:

(W)here a minority can demonstrate a lack of access to the process of slating candidates, the unresponsiveness of legislators to their particularized interests, a tenuous state policy underlying the preference for multi-member or at-large districting, or that the existence of past discrimination in general precludes the effective participation in the election system, a strong case is made. Such proof is enhanced by a showing of the existence of large districts, majority vote requirements, anti-single shot voting provisions and the lack of provision for at-large candidates running from particular geographical subdistricts. The fact of dilution is established upon proof of the existence of an aggregate of these factors. . . . (A)ll these factors need not be proved in order to obtain relief.

Id. at 1305. See also Wallace v. House, 515 F.2d 619, 623 (5th Cir. 1975) vacated and remanded on other grounds, --- U.S. ----, 96 S.Ct. 1721, 48 L.Ed.2d --- (1976) (per curiam). As indicated in Appendices A and B to this opinion the district court made Having dutifully followed Zimmer, the trial court concluded as follows:

several findings of fact ³ and then treated each of the standards prescribed in Zimmer, finding that the political process is relatively open now, though not in the past. ⁴

"The Court finally ends up with the proposition that the various standards and indicia that have been prescribed by the appellate courts are not helpful one way or the other in this case. And it ends up with this Court having to decide under the basic standards, does the present system, regardless of purpose, operate to minimize or cancel the voting strength of the blacks in the City of Fairfield. After belaboring, as I feel I must under these decisions with the principles that are involved and finding that they don't really help, I come to that question, which is the one I started off with, and I rule in favor of the plaintiffs.

I believe that this plan (though not by Fairfield's design) . . . simply does operate to inhibit and has inhibited the voting strength. . . . It is possible and has been that at some particular election that could be reversed, but in practice it has worked that way, and as I view what the Supreme Court has said, that means the system is due to be changed. . . . "

While we sympathize with the trial court's dilemma in light of its inconclusive findings, we cannot affirm the ultimate conclusion of a dilution without findings of fact to fit proper standards. To hold merely that the plan unintentionally "simply does act to inhibit and has inhibited voting strength" and that "in practice it has worked that way" is not enough. Before a court can devise a remedial plan, it must first have found a constitutional violation. As the Supreme Court said in Dallas County v. Reese, 421 U.S. 477, 95 S.Ct. 1706, 1708, 44 L.Ed.2d 312, 315 (1975):

(A) successful attack raising such a constitutional question must be based on findings in a particular case that a plan in fact operates impermissibly to dilute the voting strength of an identifiable element of the voting population.

Such findings must be based on the criteria that the Zimmer and Wallace courts distilled from White v. Regester 412 U.S. 755, 765-767, 93 S.Ct. 2332, 2339-2340, 37 L.Ed.2d 314, 324-325 (1973) and in accordance with all later cases. Unless those criteria in the aggregate point to dilution, i. e., if the criteria "don't really help", then plaintiffs have not met their burden, and their cause must fail. Specifical...