Solomon v. Liberty County, Fla., TCA 85-7009-MMP.

Citation957 F.Supp. 1522
Decision Date31 March 1997
Docket NumberNo. TCA 85-7010-MMP.,No. TCA 85-7009-MMP.,TCA 85-7009-MMP.,TCA 85-7010-MMP.
PartiesGregory SOLOMON, et al., Plaintiffs, v. LIBERTY COUNTY, FLORIDA, et al., Defendants.
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida

David Michael Lipman, Lipman & Weisberg, Miami, FL, Robert Elliot Weisberg, Robert E. Weisberg PA, Miami, FL, for Gregory Solomon, Patricia Beckwith, Raleigh Brinson.

David LaCroix, Punta Gorda, FL, for Liberty County Commissioners, L.B. Arnold, Commissioner, Commissioner Willard Reddick, John T. Sanders, Commissioner, Donnie Coxwell, Commissioner, Earl Jennings, Commissioner.

Kenneth L. Hosford, Kenneth L. Hosford, Hosford, FL, for Liberty County School Board, James W. Bilbow, Donnie Phillips, Joe Collins, Herbert Whittaker, Tommy Duggar.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

PAUL, Chief Judge.

Gingles Jingle
                The Supreme Court's edict on vote dilution
                               Attempted to offer a legal solution
                           To district courts struggling to try the cases
                              Arising from friction between the races
                But confusion reigned Supreme
                                  After reading Brennan's theme
                                      Are results the only key
                                      Do statistics open sesame
                Do the experts' opinions control the query
                           Do we listen to history until we become weary
                              Does it give "effect" to Congress' "intent"
                                 To disregard "intent" to all extent?
                Is the race of the candidate relevant?
                                  Is success at the polls significant?
                                 Does racial bloc voting rule the day?
                            Does "totality of circumstances" still have a say?
                When Solomon went en banc, we said a prayer,
                            That the Eleventh Circuit would clear the air,
                                   But alas, alas, they went five-five
                                    All we got was some more jive.
                The questions remain to this good day
                             For the courts to unravel through much legal fray.
                                   The attempt to decipher the Gingles test
                                  is tedious, exhausting, and trying, at best!
                Jeana Peeler Hosch,
                Law clerk to District Judge Robert Propst1
                

Hard cases make bad law.2 Sometimes, as is the case here, hard cases make no law at all. On appeal, the Eleventh Circuit was evenly divided in its interpretation of Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), and section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973. Solomon v. Liberty County, 899 F.2d 1012 (11th Cir.1990) (per curiam) (en banc). Specifically, the Eleventh Circuit expressed no controlling opinion on whether a plaintiff can make out a section 2 challenge simply by satisfying the three Gingles factors, see Solomon, 899 F.2d at 1021 (Kravitch, J., specially concurring), or if a defendant can defeat a section 2 challenge by raising a lack of racial bias defense after a plaintiff has demonstrated these Gingles factors, see Solomon, 899 F.2d at 1033 (Tjoflat, C.J., specially concurring). Instead, the Solomon court left it to this Court on remand to give "due consideration to the views expressed in Chief Judge Tjoflat's and Judge Kravitch's specially concurring opinions." 899 F.2d at 1013. The Court now proceeds to fulfill this mandate, mindful that in so doing, it must speak to an issue that the Eleventh Circuit has been unsuccessful in resolving on several occasions during the last decade.3

BACKGROUND:

In 1985, four black residents and registered voters in Liberty County, Florida, began a journey that has slowly taken them through the judicial thicket of the Voting Rights Act. They sought, on behalf of themselves and the certified class of all black residents of Liberty County, Florida, injunctive and declaratory relief against at-large countywide elections for members of the Liberty County School Board and the Liberty County Commission.4 Plaintiffs alleged that the at-large election of members of the Liberty County Commission unlawfully diluted black voting strength in violation of section 2 of the Voting Rights Act, 42 U.S.C. § 1973. Similarly, Plaintiffs alleged that the at-large election of members of the Liberty County School Board unlawfully diluted black voting strength in violation of section 2 of the Voting Rights Act, as well as the Fourteenth and Fifteenth Amendments to the United States Constitution.5

In March, 1986, the Court conducted a five day bench trial in this matter. See Doc. 49, Mins.; Docs. 77-82, Tr. (hereinafter "1986 Tr."). In May, 1987, the Court issued its findings. The Court held that Plaintiffs had failed to demonstrate unlawful dilution in violation of either section 2 or the Constitution, and entered judgments as to all claims in favor of Defendants. See Doc. 67, Findings of Fact and Conclusions of Law (hereinafter "Findings").

On appeal, a panel of the Eleventh Circuit initially vacated the judgments, and remanded with instructions to make further findings of fact. Solomon v. Liberty County, Florida, 865 F.2d 1566 (11th Cir.1988), vacated, 873 F.2d 248 (11th Cir.1989). In 1989, the Eleventh Circuit reheard this case en banc. In 1990, the en banc panel issued the per curiam mandate which is presently before the Court, and is the subject of this order. See Solomon, 899 F.2d at 1013. Further proceedings on remand were stayed until the Supreme Court ruled on Defendants' petition for writ of certiorari. See Doc. 98. In January, 1991, the Supreme Court denied Defendants' petition. Liberty County v. Solomon, 498 U.S. 1023, 111 S.Ct. 670, 112 L.Ed.2d 663 (1991).

Defendants then jointly moved to re-open the case for the submission of additional evidence.6 Doc. 107. This motion was granted, and the parties were given 45 days within which to conduct discovery. See Doc. 121. In October, 1991, Defendants filed motions for summary judgment [Docs. 122 & 123], to decertify the plaintiff class, and to amend the pleadings to conform to the evidence [Docs. 124 & 125]. In December, 1991, the Court held a one half-day retrial to take the parties' supplemental evidence. See Doc. 130, Mins.; Doc. 152, Tr. (hereinafter "1991 Tr."). In November, 1993, after hearing oral arguments on all of the pending motions [see Doc. 140], the Court granted the motions to decertify7 and to amend8, and denied the motions for summary judgment. See Doc. 141.

There was no further activity in this case until October, 1995, when Plaintiffs filed a motion requesting that the Court enter final judgment. Doc. 144. However, in the Plaintiffs' certificate of conference pursuant to Local Rule 6(B), they indicated that counsel for Defendant Liberty County felt that their motion should be kept in abeyance until the Supreme Court's pending resolution of two Voting Rights Act cases, Shaw v. Hunt and Bush v. Vera. See Doc. 143. Consequently, the Court took no additional action until September, 1996, after the Supreme Court issued its rulings in Shaw v. Hunt, ___ U.S. ___, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996), and Bush v. Vera, ___ U.S. ___, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996). At that time, the Court ordered Defendants to file a responsive memorandum to Plaintiffs' motion, providing Plaintiffs with an adequate opportunity to file a reply brief. See Doc. 146. The parties responded by filing supplemental memoranda and new proposed findings. See Docs. 147, 149-151.

It has been said that justice delayed is justice denied. Nevertheless, the Court believes that two sets of circumstances which have taken place since this case was remanded by the Eleventh Circuit will now offer the parties the sense of justice to which they are clearly entitled.9 First, although there is still no consensus on the proper application of the Gingles preconditions and totality of the circumstances test, intervening case law has greatly clarified the proper analysis under section 2 and has helped provide a path — albeit a rocky one — upon which the Court may venture to get this case out of the judicial thicket. With the benefit of these decisions, the Court hopes that the course which it now plots will get the parties, both Plaintiffs and Defendants, to a destination that any appellate review will deem to be proper in view of the relevant facts and law. Second, developments in Liberty County since the 1986 trial have made this case more susceptible to final resolution. Results of a number of intervening elections, not to mention the 1990 census, are of particular import. Twelve years after the Plaintiffs entered a federal courthouse in Tallahassee seeking relief, the Court can only hope that its due consideration to the divided Circuit Court's opinions, see Solomon, 899 F.2d at 1013, will provide them with some form of relief — even if it is limited solely to the absence of further proceedings in this cause.

DISCUSSION:

This case presents a number of legal and factual complexities beyond those which the Court has found to be common in section 2 lawsuits. In fact, the Court is in the somewhat unique, and unenviable, position on remand of determining the governing legal standard for evaluating Plaintiffs' claims. The Court's task is further complicated (or simplified, depending upon one's perspective) by the Eleventh Circuit's holding that the three Gingles factors have been established in this case as a matter of law. See Solomon, 899 F.2d at 1013; id. at 1037 (Tjoflat, C.J., specially concurring); id. at 1017 (Kravitch, J., specially concurring). Consequently, it will be necessary to tailor the analysis accordingly.

Part I of this opinion squarely addresses the issue which the Eleventh Circuit has been unable to resolve.10 It begins with a discussion of section 2, including an examination of the 1982 amendment to the Voting Rights Act, to set the context for the dialogue that followed between Judges Tjoflat and Kravitch in Solomon. This dialogue is then briefly set out, both as it appeared in Solomon, and as it...

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