Overton v. City of Austin

• Citation: 748 F.2d 941
• Decision Date: 03 December 1984
• Docket Number: 84-1835 and 84-1878,Nos. 84-1745,s. 84-1745
• Parties: Volma OVERTON, et al., Plaintiffs, v. CITY OF AUSTIN, etc., et al., Defendants. Appeal of Volma OVERTON, et al. Volma OVERTON, et al., Plaintiffs, v. CITY OF AUSTIN, et al., Defendants. Volma OVERTON, et al., Appellants, and Ernesto Calderon, et al., Appellants, v. CITY OF AUSTIN, et al., Appellants. In re Volma OVERTON, Iola Taylor, John Hall, and others similarly situated, Petitioners.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 941

748 F.2d 941

Volma OVERTON, et al., Plaintiffs, v. CITY OF AUSTIN, etc., et al., Defendants.

Appeal of Volma OVERTON, et al.

Volma OVERTON, et al., Plaintiffs, v. CITY OF AUSTIN, et al., Defendants.

Volma OVERTON, et al., Appellants, and Ernesto Calderon, et al., Appellants, v. CITY OF AUSTIN, et al., Appellants.

In re Volma OVERTON, Iola Taylor, John Hall, and others

similarly situated, Petitioners.

Nos. 84-1745, 84-1835 and 84-1878.

United States Court of Appeals, Fifth Circuit.

Dec. 3, 1984.

Schwartz, Waterman, Fickman & Van Os, David Van Os, Leonard J. Schwartz, Austin, Tex., Jose Garza, Mexican American Legal Defense & Educ. Fund, San Antonio, Tex., for appellants in Nos. 84-1745, 84-1878.

Paul C. Isham, City Atty., Jonathan Davis, 1st Asst. City Atty., Austin, Tex., for other interested party.

Schwartz, Waterman, Fickman & Van Os, David Van Os, Leonard J. Schwartz, Austin, Tex., for Volma Overton, et al. in No. 84-1835.

Paul C. Isham, City Atty., Jonathan Davis, 1st Asst. City Atty., Austin, Tex., for City of Austin, et al. in No. 84-1835.

Jose Garza, Belinda Herrara, Mexican American Legal Defense and Educ. Fund, San Antonio, Tex., for Ernesto Calderon, et al. in No. 84-1835.

James R. Nowlin, U.S. Dist. Judge, Paul C. Isham, City Atty., Austin, Tex., for appellee in No. 84-1878.

No Attys. for appellees in Nos. 84-1745, 84-1835.

McCamish, Ingram, Martin & Brown, Austin, Tex., for amicus curiae Judge James R. Nowlin, R. Mark Dietz, Austin, Tex., of counsel.

James V. Sylvester, Donald Scott Thomas, Jr., Austin, Tex., for amicus curiae--Council Member Mark Spaeth.

Appeals from the United States District Court for the Western District of Texas.

On Petition for Writ of Mandamus to the United States District Court for the Western District of Texas.

Before THORNBERRY, GARWOOD, and HILL, Circuit Judges.

GARWOOD, Circuit Judge:

This case involves the consolidated appeals of Black plaintiffs, Mexican-American plaintiffs-intervenors, and the defendant City of Austin, who seek relief from what they characterize as a refusal by the district court to approve and enter proposed consent decrees. The proposed decrees would have required the City of Austin to permanently adopt, beginning in April 1985, a city council election system having all eight councilmembers elected from single-member districts and a mayor elected at large, in lieu of its present system in which all six councilmembers and the mayor are elected at large. Plaintiffs and plaintiffs-intervenors had alleged that the existing at-large system impermissibly diluted the impact of minority votes in the City. Appellants characterize the district court's failure to promptly dispose on the merits of the proposed settlement and consent decrees as a refusal to grant injunctive relief, and seek to appeal under 28 U.S.C. Sec. 1292(a)(1). In addition, the Black plaintiffs seek a writ of mandamus ordering the district court either to "forthwith execute and file" the last tendered consent decree, or, alternatively, to issue a written order formally refusing approval and giving reasons therefor. We hold that there is no appealable final or interlocutory order, and dismiss the appeals. We also hold that the district court's deferral of immediate action without a hearing on the proposed consent decrees was at the least within its sound discretion, and accordingly we deny the application for writ of mandamus.

PROCEEDINGS BELOW

On April 5, 1984, plaintiffs Volma Overton, Iola Taylor and John Hall ("plaintiffs") instituted these proceedings by filing a complaint in the court below on behalf of themselves and other Austin Black voters similarly situated. The City of Austin and its mayor and councilmembers, individually and officially, were named defendants. Plaintiffs alleged that black voters as a class, constituting "less than 12% of the electorate," have been and will continue to be deprived of rights guaranteed by the Constitution of the United States, the Civil Rights Acts of 1866, 1871, and 1964, and the Voting Rights Act of 1965, 42 U.S.C. Sec. 1973, et seq., as amended, by virtue of the "intentional racial discrimination incorporated into the at-large City Council election system pursued by the City of Austin." The complaint asserts that the City's at-large voting system impermissibly dilutes "the votes of Black citizens, denying them the right to vote, and denying them equal protection of the laws," and that under this system "Black citizens ... have less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice." It alleges that "[a] class action is the most efficient mechanism for addressing the issues herein and otherwise assuring that all affected persons will be adequately protected and represented." Plaintiffs sought the following relief: (1) "[t]hat the Court declare this matter to be a class action"; (2) "declare that the present at-large system ... [is] unconstitutional, illegal and violative of rights guaranteed to the Plaintiffs and others similarly situated under the Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution, the Civil Rights Acts of 1866 and 1871, and the Voting Rights Act of 1965, as amended"; (3) "order into effect a plan for the election of members of the Austin City Council which provides Plaintiffs and those similarly situated with a remedy for the violation of their rights as described above"; (4) "enjoin any further elections from taking place under said present plan." The complaint seeks no preliminary injunctive relief.

On April 12, "[t]he Black Citizens Task Force, an unincorporated association of black citizens in Austin" moved "to intervene as a defendant in this action," alleging in their proposed answer and counterclaim that plaintiffs were not proper class representatives, that Blacks were meaningfully represented on the city council since one of its seven members was Black while the Black electorate was twelve percent of the population, that the at-large system "provides a meaningful access to the election system by blacks" and is not unconstitutional or illegal, and "that a change to a single member district system of elections will dilute the actual influence of black voters in Austin" and violate the Voting Rights Act.

The defendants, represented by the Austin City Attorney, filed their answer April 27, admitting that Austin followed the at-large system of electing its city council but denying that it denied or abridged any of plaintiffs' rights under the United States Constitution or the Voting Rights Act and denying any discriminatory intent.

On April 30, plaintiffs filed their First Amended Complaint. This complaint is essentially the same as the original complaint, except that the class action allegations are omitted and the Austin Branch of the NAACP is added as a party plaintiff. The relief requested is exactly the same as in the original complaint, except that the request for a declaration that the case is a class action is omitted. ¹ No preliminary injunctive relief is sought. The record does not reflect any notice to the putative class members of this amended complaint, nor any order of the court or consent of parties opposite respecting its filing. See Fed.R.Civ.P. 15(a), 23(e).

On May 1, plaintiffs and defendants each filed their respective oppositions to the Black Citizens Task Force's motion to intervene. On May 11, the Black Citizens Task Force, now joined by "Dorothy Turner and Velma Roberts, black citizens of Austin," filed an amended motion to intervene as defendants, alleging that various factors, including recent public statements by members of the city council favoring single-member council districts, "give rise to a question of collusion [between plaintiffs and defendants] or at least reasonable doubt as to whether the City could or would vigorously protect Applicant-Intervenors' interest," and that applicants for intervention were the only parties raising or likely to raise the issue of "dilution of black voting strength by going to a larger council with single member districts." On May 21, plaintiffs filed an opposition to this amended motion to intervene; the record discloses no response thereto by defendants.

On June 11, plaintiffs filed their "proposed scheduling order," calling for completion of discovery on October 15, attorneys' conference December 15, and "submit proposed pre-trial order" on January 15, 1985; this was amended June 18 to change the respective dates to October 1, November 1, and November 15.

Thereafter, on June 29, Ernesto Calderon, John Moore, and Ernest Perales (the "plaintiffs-intervenors") moved to intervene as plaintiffs, individually and on behalf of the class of "Mexican American citizens of the United States residing and registered to vote in the City of Austin, Travis County, Texas," for the purpose of "challenging the existing at-large, by place, majority vote system of election for members of the City Council of Austin, Texas as violative of their rights as secured under Section 2 of the Voting Rights Act, 42 U.S.C. Sec. 1973, et seq., and the Fourteenth and Fifteenth Amendments of the U.S. Constitution." They alleged that "the granting of intervention will not delay the proceedings." No preliminary injunctive relief is sought. On July 6, plaintiffs filed a consent to this intervention, and on July Two days later, on July 25, the district court denied the motion to intervene as defendants of the Black Citizens Task Force, Dorothy Turner, and Velma Roberts, but stated "[t]he Court shall accept amicus curiae briefs from these parties should they choose to provide the same to the Court." On August 3, the Black Citizens Task Force, Turner, and Roberts filed a motion under Rule 59, Federal Rules of Civil Procedure, to alter or amend the order denying them intervention, and requested a hearing thereon. ² So far as the record reflects,...