Posada v. Lamb County, Tex.

• Decision Date: 11 October 1983
• Docket Number: No. 82-1415,82-1415
• Citation: 716 F.2d 1066
• Parties: Victoria POSADA, et al., Plaintiffs-Appellants, v. LAMB COUNTY, TEXAS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1066

716 F.2d 1066

Victoria POSADA, et al., Plaintiffs-Appellants, v. LAMB COUNTY, TEXAS, et al., Defendants-Appellees.

No. 82-1415.

United States Court of Appeals Fifth Circuit.

Oct. 11, 1983.

Albert H. Kauffman, Dallas, Tex., for plaintiffs-appellants.

White, Self, Davenport & Bass, Bob Bass, Plainview, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY and JOHNSON, Circuit Judges, and WYZANSKI^*, District Judge.

JOHNSON, Circuit Judge:

The plaintiffs, Mexican-American citizens of Lamb County, Texas, claim that they are entitled to attorneys' fees under the Voting Rights Act of 1965, 42 U.S.C. Sec. 1973l (e), and the Civil Rights Attorneys' Fees Awards Act of 1976, 42 U.S.C. Sec. 1988, for the role they played in defendant County's adoption and implementation of a legally sound voting district apportionment plan. They also seek a permanent injunction against future malapportionment of the County's county commissioner and justice of the peace precincts. The district court denied both requests. It held the injunction unnecessary, in view of the County's present compliance with federal apportionment requirements and the lack of an immediate threat to modify or abandon the plan presently in force. Neither would it award fees. The court decided that, far from being the catalyst of change, the plaintiff's lawsuit had no significant effect. It found, to the contrary, that the defendants were on the verge of adopting the legally sufficient plan and submitting it for preclearance when the plaintiffs filed their lawsuit. The plaintiffs appealed both aspects of the ruling. We find no warrant in the record to overturn the district court's decision. Its judgment is accordingly affirmed.

I.

Lamb County, Texas became subject to the election procedure preclearance provisions of the Voting Rights Act of 1965, 42 U.S.C. Sec. 1973 et seq., on November 1, 1972. From that date forward the County's apportionment plans stood in clear, conceded violation of both the Voting Rights Act and the Constitution's one-man/one-vote principle. A reapportionment plan in effect from January 1, 1973 until early 1982 was implemented without the requisite preclearance by the Attorney General, Section 5, Voting Rights Act of 1965, 42 U.S.C. Sec. 1973c; that plan created population deviations among the districts in excess of 100%. In 1976 the 1973 plan, along with several post-1973 modifications, was submitted to the Justice Department. The Attorney General denied preclearance and warned the County that elections could not be held under the plan until it was approved. Undeterred, the County continued to use the plan in its biennial elections.

Pressure to conform the County's voting procedures to the constitution and federal law began to mount in late 1978. A request for redistricting by a local Chamber of Commerce prompted the County Commissioner's Court to establish a citizen's committee on reapportionment. The matter languished in committee until the 1980 census got underway; the committee then decided to postpone action until up-to-date census data became available. In the spring of 1981 redistricting efforts began in earnest. The committee and a city employee, all laymen to the intricacies of voting district apportionment, devised and submitted a series of plans to the County Commissioners. The last of the plans was adopted and submitted for preclearance in September 1981.

Shortly after submission of the 1981 plan the plaintiffs, Victoria Posada, Melquiarez Sanchez, Jesusa Bosquez, and Ignacio Rendon, first appeared on the scene via a request for a copy of the 1981 plan made by their attorney to the County Judge. In late September the plaintiffs submitted an extensive objection to the 1981 plan to the Justice Department. The plaintiffs did not send a copy of their objection to the County, or notify it that they had filed an objection with the Attorney General. In November 1981 the Justice Department notified the County that the data it had submitted in support of the plan was seriously inadequate, and requested further information.

The County surmised from the Justice Department's letter that its 1981 plan was too flawed to withstand the government's scrutiny. Finally acknowledging its need for skilled help, the County retained an attorney and a college professor, both experienced in redistricting, to assist it in devising a proper plan. Soon thereafter, the County notified the Justice Department that it intended to redraw the lines. Additional census data was obtained; in December, a completely revised plan began to take shape. Late in the month, the experts advised the County Judge that they expected the changes to be drastic.

On January 6, 1982, the plaintiffs' attorney informed the county's attorney and the County Judge that the plaintiffs intended to file suit. The County apprised the plaintiffs that it was in the final stages of preparation of a completely new plan, that it intended to submit the plan for preclearance no later than February 15, and that it would use the plan in the upcoming primary elections. Notwithstanding, the plaintiffs filed their complaint on January 13. A hearing on the plaintiffs' request for injunctive relief was set for January 21.

The county commissioners tentatively approved the plan and set it for the requisite public hearings before the district court hearing convened. ¹ At the district court hearing on January 21, the County represented that its new plan was virtually complete and would be submitted to the Justice Department no later than February 5. It advised the court that it had no intention of holding any future elections under the concededly unconstitutional 1973 plan, and stated that it intended to enter an order extending the spring primary election schedule as necessary to insure that the new plan could be precleared and properly implemented. Based on those representations, the district court denied the plaintiff the immediate injunctive relief they sought against the use of the 1973 or 1981 plans. Instead, it recessed proceedings until February 3 to allow the County time to follow through on its plans.

The County conducted the public hearings as scheduled the following week. The local citizenry strongly opposed the plan. Most of the criticism focused on the plan's proposal to divide the communities of Littlefield and Olton into minority and nonminority segments and join the minority sections into a single, noncontiguous minority precinct. The commissioners responded to their constituents' adverse reactions by reminding them that a lawsuit was pending, and noting that another census would bring a new opportunity to redraw the lines.

The plan was adopted by the County following the final public hearings on January 26, and promptly submitted for preclearance. The resumption of district court proceedings, scheduled for February 3, was cancelled on the parties' agreement that the plan and the submission satisfied the plaintiffs' complaints. ² On February 16, at the County's request, the district court and the County entered simultaneous, identical orders extending the election deadlines for the spring primary. The plan was approved by the Justice Department on April 5, 1982. May elections were conducted under the new plan. Several weeks after the elections the plaintiffs sought and were denied a permanent injunction and attorneys fees.

II.

Permanent injunctions are never lightly given. They are hedged about with circumspection: to win one, a petitioner must show a clear threat of continuing illegality portending immediate harmful consequences irreparable in any other manner. United States v. W.T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 898, 97 L.Ed. 1303 (1953); Baldwin Metals Co., Inc. v. Donovan, 642 F.2d 768, 775 and n. 17 (5th Cir.1981). The cautionary rhetoric of black-letter law binds with ferocity when the federal courts are asked to intervene in the legislative processes of a state, or its political subdivisions. More is called up than our usual reluctance to divert the course of private behavior; such a request, if granted, supplants the non-representative branch for the consensus of representatives, and interjects deeply, directly and finally the strictures of the federal government into the domain of the state. But cognizance of comity does not command abstinence. Encroachments on the exercise of the civil liberties secured by the Constitution are barred no less when threatened by majoritarian domination of the political organs of the state.

Our deepest concerns are awakened by legislative repression of minorities' political participation. Trammelling of elective rights by the state's representative bodies distorts the processes of consensus by muffling--or muting altogether--the voices of the less favored. It is a body blow to the body politic. Where it appears, it warrants close scrutiny; when it exists, it requires a firm judicial response.

The County's record under the Voting Rights Act is a deplorable history of flagrant, persistent violations of minority voting rights and defiance of federal election law. The plaintiffs urge that the County's pattern of malapportionment, coupled with its officials' responses to their constituents' opposition to the new plan, foreshadows a return to discriminatory practices, and request an order demanding continuing compliance. But we are less sure than the plaintiffs that judicial action is now necessary. Extrajudicial constraints--always preferable to our intervention--have pressed the County into present compliance. Aside from those few remarks the district court found were meant to allay a disgruntled citizenry, we have found no intimations that the County contemplates rescinding its plan in favor of one resembling the old. We agree with that court that, absent more concrete evidence that the County is about to return to its old ways, federal...