PERRY-BEY v. CITY OF NORFOLK, VA.

• Decision Date: 15 January 2009
• Docket Number: Civil Action No. 2:08cv100.
• Citation: 678 F. Supp.2d 348
• Parties: Christina D. PERRY-BEY, Plaintiff, v. CITY OF NORFOLK, VIRGINIA, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

678 F.Supp.2d 348

Christina D. PERRY-BEY, Plaintiff, v. CITY OF NORFOLK, VIRGINIA, Defendant.

Civil Action No. 2:08cv100.

United States District Court, E.D. Virginia, Norfolk Division.

January 15, 2009.

Christina D. Perry-Bey, pro se.

Paul W. Jacobs, II, Melvin W. Ringer, for Defendant.

OPINION AND ORDER

MARK S. DAVIS, District Judge.

This matter is before the Court on Defendant's "Motion of City of Norfolk to Dismiss Complaint Under Fed.R.Civ.P. Rules 12(b)(5) and 12(b)(6)," and Plaintiffs "Motion to Reconsider Plaintiff's Motion for Civil Contempt of Court and Issue Show Cause Order as a Matter of Law." The parties, and amicus curiae Norfolk Branch of the National Association for the Advancement of Colored People ("NAACP"), appeared before the Court on September 17, 2008 for oral argument. The motions are now ripe for decision, and the Court considers the merits below.

I. Factual and Procedural History¹

A. The Collins Litigation

Collins v. City of Norfolk, Civil Action No. 83-526-N, is the precursor to this litigation. A proper understanding of the motions before this Court requires a review of that case. That suit was filed here in 1983 by seven African-American citizens of Norfolk, Virginia, and the Norfolk Branch of the NAACP, alleging that the "at-large system of electing members of the Norfolk City Council unlawfully diluted black voting strength in violation of Section 2 of the Voting Rights Act of 1965, As amended in 1982, 42 U.S.C. ? 1973."² Collins v. Norfolk, 605 F.Supp. 377, 379 (E.D.Va.1984) (Collins I). The Collins plaintiffs also alleged that "the at-large system was adopted in 1918 and had been maintained for a racially discriminatory purpose in violation of their Fourteenth and Fifteenth Amendment rights and 42 U.S.C. ? 1983." Id.

After a trial before United States District Judge J. Calvitt Clarke, Jr., the District Court determined that there had been no violations of the Voting Rights Act, the Fourteenth Amendment to the United States Constitution, the Fifteenth Amendment to the United States Constitution, or 42 U.S.C ? 1983. Id. at 406-07. The plaintiffs appealed the District Court decision denying their Voting Rights Act claim, but did not appeal the District Court decision on the two constitutional claims and the 42 U.S.C. ? 1983 claim. The United States Court of Appeals for the Fourth Circuit affirmed that decision. Collins v. City of Norfolk, 768 F.2d 572 (4th Cir.1985) (Collins II). The United States Supreme Court then vacated the judgment of the Fourth Circuit and remanded the case for further consideration in light of its ruling the previous week in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 733 (1986) (Collins v. City of Norfolk, 478 U.S. 1016, 106 S.Ct. 3326, 92 L.Ed.2d 733 (1986) (Collins III). The Fourth Circuit then reversed the District Court's judgment and remanded for further proceedings consistent with the Gingles decision, including reconsideration of the issues of racial polarization, minority electoral success, candidate slating, and government responsiveness in the East Ghent redevelopment. Collins v. City of Norfolk, 816 F.2d 932 (4th Cir.1987) (Collins IV).

Because the Collins plaintiffs had not appealed the District Court's ruling on their Fourteenth and Fifteenth Amendment claims, nor their claims under 42 U.S.C. ? 1983, those rulings were not before the District Court on remand. However, the District Court did consider the designated issues in the context of the plaintiffs' Section 2 Voting Rights Act claim. On remand, the plaintiffs sought: a declaratory judgment that the at-large system of electing Norfolk's City Council members unlawfully diluted African-American voting strength; an injunction prohibiting the holding of future City Council elections under the at-large system; and the replacement of the at-large system with a system of wards or single-member districts. Collins v. City of Norfolk, 679 F.Supp. 557 (E.D.Va.1988) (Collins V). The parties then agreed that the record from the prior trial was sufficient for the District Court to decide such issues, and therefore no additional evidence was submitted. Plaintiffs submitted a memorandum of law asking that the District Court "hold that at-large city council elections in Norfolk violated Section 2" of the Voting Rights Act. (Mem. For Pl.'s on Remand 49, filed Sept. 21,1987, Collins V.) After further consideration, and applying the new Gingles standard, the District Court again found that Norfolk's at-large system for the election of City Council members did not violate Section 2 of the Voting Rights Act. Collins V, 679 F.Supp. at 587.

Plaintiffs again appealed the District Court's decision to the Fourth Circuit. The Fourth Circuit reversed the District Court and directed that:

upon remand, the district court should enjoin at-large elections for city council. The district court should afford the city a reasonable, specified time to prepare a plan that will remedy the vote dilution arising out of the city's at-large electoral system. The city must then submit the plan for clearance under section 5 of the Voting Rights Act of 1965. 42 U.S.C. ? 1973c. If the city fails to enact a legal plan, the court should prepare a single district plan for the conduct of future elections.

Collins v. City of Norfolk, 883 F.2d 1232, 1244 (4th Cir; 1989) (Collins VI). The City of Norfolk then sought review by the Supreme Court, but the Supreme Court denied the Petition for Certiorari. City of Norfolk v. Collins, 498 U.S. 938, 111 S.Ct. 340, 112 L.Ed.2d 305 (1990) (Collins VII).

Once the matter was returned to the District Court, the parties submitted an agreed order signed by both counsel that was entered by the District Court on January 3, 1991. That order provided as follows:

This day came the parties, by counsel, upon the mandate of the United States Court of Appeals for the Fourth Circuit effective November 2, 1990, reversing the judgment of this Court and remanding for further proceedings consistent with the Court's opinion of August 18, 1989. The Court of Appeals ruled that upon remand this Court should afford the City of Norfolk ("the City") a reasonable, specified time to prepare an election plan that will remedy the vote dilution existing in the present plan and to submit such plan for clearance under Section 5 of the Voting Rights Act of 1965, and the Court has determined that the 1990 Census data should be available on or about January 31, 1991, for use in devising a remedial plan and the regularly scheduled city council elections are not scheduled to be held until May, 1992.

Accordingly, it is hereby ORDERED as follows:

1. Within sixty-five days after receipt of the 1990 Census for the City, the City Council of the City of Norfolk shall duly adopt after opportunity for public comment a remedial election plan and shall submit the same to the United States Department of Justice under Section 5 of the Voting Rights Act. Defendants, through counsel, promptly shall advise counsel for plaintiffs of the date of receipt of such Census data and shall provide plaintiffs' counsel with a copy of such submission to the Justice Department when made.

2. If the Department of Justice preclears the City's plan, defendants' counsel promptly shall so notify plaintiffs' counsel and this Court and defendants shall formally submit the plan for this Court's consideration. Whereupon, the Court will set a hearing date to hear any objections from the plaintiffs concerning the City's plan and to establish a timetable for the plan's implementation.

3. If the Department of Justice objects to the City's plan, in whole or in part, the court will set a hearing date to consider proposed court-ordered single-member district plans for the conduct of future city council elections. If such objections are subsequently resolved and the plan, as amended, is precleared, defendants may submit the City's plan as precleared to the Court and such plan will be reviewed and considered by the Court as a remedial legislative plan prior to implementation of any proposed court ordered plan. Following adoption of a plan, the Court will establish a timetable for implementation.

4. Defendants are hereby enjoined from conducting at-large elections for the city council under the present plan under which all seven city council members are elected on an at-large basis and from implementation of a new plan until approved by this Court.

(Order Jan. 3, 1991 (Collins VIII), Def.'s Mem. in Supp. of Mot. to Dismiss Ex. B, Docket No. 13.)

With the concurrence of the Collins plaintiffs, the City of Norfolk submitted a proposed election plan to the Department of Justice that provided for a City Council comprised of five single-member wards and two single-member super-wards (the "5-2 plan"). The Department of Justice pre-cleared the proposed plan of the City of Norfolk, and a "Petition for Approval of Remedial Election Plan by the City of Norfolk" was filed with the District Court on June 11, 1991. The Petition indicated that the plaintiffs had no objection to the 5-2 plan, and requested "the entry of an order in this action approving Ordinance No. 36,374 as the remedial election plan for elections to Norfolk City Council and for entry of a final order of dismissal in this case." (Def.'s Pet. for Approval of Remedial Election Plan, June 11, 1991, Collins VIII.)

A hearing on the request of the City of Norfolk for entry of a final order took place on June 24, 1991. At that hearing, counsel for the plaintiffs confirmed that plaintiffs had advised the Department of Justice that they had no objection to the election plan, and then stated that "the only difference that we have this morning, Your Honor, is that plaintiffs believe that it would be possible for the Court to establish a timetable for implementation that would allow this plan to go into effect for the November elections, rather than for next May."³ (Hr'g Tr., 3, June 24, 1991, Collins...