United States v. Ramsey

• Decision Date: 12 November 1965
• Docket Number: No. 22315.,22315.
• Citation: 353 F.2d 650
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: UNITED STATES of America, Appellant, v. A. L. RAMSEY, Circuit Court Clerk and Registrar, Clarke County, Mississippi, and State of Mississippi, Appellees. Ex parte: In the Matter of the UNITED STATES of America, Petitioner.

353 F.2d 650 (1965)

UNITED STATES of America, Appellant, v. A. L. RAMSEY, Circuit Court Clerk and Registrar, Clarke County, Mississippi, and State of Mississippi, Appellees Ex parte: In the Matter of the UNITED STATES of America, Petitioner.

No. 22315.

United States Court of Appeals Fifth Circuit.

November 12, 1965.

COPYRIGHT MATERIAL OMITTED

Harold H. Greene, Gerald P. Choppin, Attys., John Doar, Asst. Atty. Gen., Charles Nenan, Atty., Dept. of Justice, Washington, D. C., Robert E. Hauberg, U. S. Atty., David Rubin, Atty., Dept. of Justice, Washington, D. C., for appellant.

William A. Allain, Asst. Atty. Gen., State of Mississippi, Jackson, Miss., Tally D. Riddell, Quitman, Miss., Joe T. Patterson, Atty. Gen. of State of Mississippi, Peter M. Stockett, Jr., Sp. Asst. Atty. Gen. of State of Mississippi, Jackson, Miss., for appellees.

Before HUTCHESON and BROWN, Circuit Judges, and MORGAN, District Judge.

JOHN R. BROWN, Circuit Judge.

The second appeal (plus the parallel proceeding for mandamus)¹ in a case filed by the Government in 1961 presents for determination the question whether the District Court, having found flagrant discrimination against Negroes in voter registration in Clarke County, Mississippi, has accorded effective, timely adequate relief. We hold in the negative and reverse with directions.

As framed in the outset of this appeal, the Government's criticism was twofold: the trial Court's failure (1) specifically to find pattern and practice, 42 U.S.C.A. § 1971(e), and (2) to apply the freezing principle so that Negroes currently applying would be tested, not by the newer and more exacting standards presumably being applied uniformly without distinction as to both whites and Negroes alike, but by the more lax standards long accorded to whites.²

Now time has wreaked change. First, Ramsey has been succeeded as Registrar by Mrs Evie Harris. Second, and more important, Congress has twice since 1961 markedly changed the law by the enactment of the Civil Rights Act of 1964,³ and, more significantly — and more recently, the Voting Rights Act of 1965.⁴ The result is that the Government, insisting quite properly that we must now apply the new law,⁵ now urges that in spelling out standards the decree must speak in terms of the 1965 Act.⁶ Time has also been working in Mississippi, and working for good. By constitutional amendments⁷ approved overwhelmingly by her people and by legislation,⁸ Mississippi has adopted a simplified procedure and standards, and now the only prerequisites for registration are (a) ability to read and write, (b) citizenship, age and residence, and (c) absence of felony conviction,⁹ thus eliminating the good-moral-character, the duties-of-citizenship, and the read-and-interpret requirements which have been the engine of discrimination for so long.¹⁰

Because of these intervening developments, it is helpful to summarize the background, much of which appears in our prior decision. United States v. Ramsey, 5 Cir., 1964, 331 F.2d 824, modified on rehearing, 331 F.2d at 838.

The suit, filed July 6, 1961, was brought by the Government under 42 U.S.C.A. § 1971(c), asserting long continued discriminatory practices against Negro voters. After a trial on December 26-28, 1962, the District Court on February 5, 1963, entered its judgment. The Court found that Negro citizens had been discriminated against by the Registrar, but that this discrimination did not form a pattern or practice within the meaning of § 1971(e). The Court enjoined the Registrar from engaging in any act or practice which would deprive any citizen in Clarke County of the right to vote on account of his race or color. But the Court declined to grant the freezing relief. Rather it specifically ordered the Registrar to apply to all applicants (white or Negro) the tests currently required by the statutes of the State of Mississippi.¹¹ On the Government's appeal, this Court on February 20, 1964, 331 F.2d 824, at 829, modified the judgment by (1) enjoining not only the present Registrar (Ramsey), but also his successors in office and (2) by directing the Registrar to file monthly reports with the Clerk of the District Court as to applications received, granted and rejected.

Thereafter the Government sought a rehearing on this Court's holding that the trial Court "had discretion to omit action" as to the pattern or practice and on the refusal of the trial Court to grant freezing relief. On rehearing this Court found the finding of no pattern or practice clearly erroneous, but in "the light of that holding" it concluded "that the question of further relief should be first ruled on by the District Court" and accordingly denied rehearing as to the freeze order. 331 F.2d at 838.¹²

This sets the stage for the subsequent action in the trial Court now under review. Since no action was taken by the trial Court on receipt of our mandate in May 1964, the Government in August moved for an order to implement our mandate. On December 1, 1964, the trial Court deleted its "no pattern or practice" finding, but declined to find it affirmatively and declined to grant freezing relief.¹³

To review these actions, the Government appealed and to the extent the matters were not reviewable by appeal, subsequently sought and obtained leave to institute the mandamus proceedings. We think all is reviewable by appeal. 28 U.S.C.A. § 1292(1). Thus the mandamus is superfluous, and such proceeding is dismissed.

Coming to the merits, little now need be said in view of the detailed and decisive treatment we have given these issues in United States v. Ward (Louisiana), 5 Cir., 1965, 349 F.2d 795, and the cases there discussed.¹⁴

Consequently the Court was clearly in error in its handling of pattern and practice. It was not sufficient merely to delete the finding of no pattern and practice. The trial Court had the duty to make the affirmative finding so clearly called for by the facts of this record and to do so in words which to layman, lawyer, judge, voter applicant, and registrar alike set in train the machinery of § 1971(e).¹⁵ 349 F.2d at 801, 805.

For all of the reasons outlined in depth in Ward (Louisiana), we likewise have the same firm conclusions as to freezing relief. In so concluding we necessarily reject the Registrars' contention that the District Judge merely applied the law of the case as declared in our prior opinion and that the same principle, Lincoln Nat'l Life Ins. Co. v. Roosth, 5 Cir. (en banc), 1962, 306 F.2d 110, 113-114, makes it inappropriate for us to scrutinize his holding a second time. Of course this would be so had the rehearing not been granted. The Court initially approved the trial Court's refusal to invoke the freezing principle. But this, it is quite evident, was based upon this Court's acceptance of the discretionary power of the trial Judge to find no pattern or practice. The whole case was changed when, on rehearing, we declared that finding to be clearly erroneous so as to compel — what we now order — the affirmative finding of a pattern and practice. It was in "the light of that holding" (see note 12, supra) that we concluded that the District Court should first pass upon the question of further relief including a freeze order. Indeed, a finding of pattern or practice is not only relevant on the question of relief. It may impose a statutory standard on the extent — both as to time and persons covered — of the judicial freeze order required. United States v. Ward (Louisiana), 5 Cir., 1965, 349 F.2d 795, 804.

The facts of this record leave no doubt of the imperative need of a freezing order. Approximately 75% of the white persons registered as of the trial had been registered prior to March 1955 during the time Registrar Ramsey had no requirement or procedures whatever and merely required white registrants to sign the book. His subsequent requirements covering the remaining 25% were not significantly more severe. Many were examined only in a perfunctory way, given assistance where needed in filling out the form and answering the more difficult constitutional interpretation test, and the like. The unfortunate fact is that the overwhelming number of white persons registered were not required to comply with any of the paper requirements of the Mississippi law.

But Negroes have not fared so well. Indeed, for many years they did not fare at all. The effect of this racial discrimination cannot be eradicated merely by correcting the future through uniform nondiscriminatory tests applied to Negro and white alike. To alleviate this consequence, the case compelled an order extending to all now age-and-residence-eligible not suffering from statutory disqualifications (conviction of felony, etc.) the same lax standards previously applied to whites. Considering the history of this discrimination and the population of the county,¹⁶ the freeze period could not properly have been for less than the two years fixed in Lynd (appeal),¹⁷ 349 F.2d at 788, and in Ward (Louisiana),¹⁸ 349 F.2d at 802, 803-804.

The trial Court was also in error in the monthly reporting provision. See notes 2 and 13, supra. Our mandate called for a monthly report as to all applicants, white and Negro, rejected and accepted. It did so for the perfectly natural reason that discrimination is disparate treatment without an adequate basis, and it is frequently the comparison of applications accepted and those denied which starkly reveals the unlawful activity. See United States v. Lynd (contempt), 5 Cir., 1965, 349 F.2d 790, 792 n. 4.

The result is that up to August 6, 1965, we would have reversed with directions to enter a Ward (Miss.), Lynd, or Ward (Louisiana) type of order. What does the 1965 Voting Rights Act do to the case and to the relief required?¹⁹ For reasons we briefly indicate, we think the relief now required is markedly different.

On August 7, 1965, the United States Attorney General and the Director of Census made and published (30...