The opinion
United States Court of Appeals,
Eleventh Circuit.
Nos. 94-7024, 94-7081.
Hoover WHITE, for himself and on behalf of all other persons
similarly situated; John A. Dillard, for himself and on behalf of
all other persons similarly situated; Glenn Moody, for himself and
on behalf of all other persons similarly situated, Plaintiffs-
Appellees,
Ralph E. Bradford, Sr., Intervenor-Plaintiff-Appellant,
Christopher Boehm; John Curry; Jack Williams; Mark G. Montiel,
Intervenors-Plaintiffs,
v.
The STATE OF ALABAMA; James Bennett, in his official capacity as
Secretary of State for the State of Alabama, Defendants-Appellees.
Hoover WHITE, for himself and on behalf of all other persons
similarly situated; John A. Dillard, for himself and on behalf of
all other persons similarly situated; Glenn Moody, for himself and
on behalf of all other persons similarly situated, Plaintiffs-
Appellees,
Ralph E. Bradford, Sr., Christopher Boehm, Intervenors-
Plaintiffs,
Johnny Curry; Jack Williams; Mark G. Montiel, Intervenors-
Plaintiffs-Appellants,
v.
The STATE OF ALABAMA, James Bennett, in his official capacity as
Secretary of State for the State of Alabama, Defendants-Appellees.
Jan. 24, 1996.
Appeals from the United States District Court for the Middle
District of Alabama. (No. CV-94-T-094-N), Myron H. Thompson,
District Judge.
Before TJOFLAT, Chief Judge, BLACK, Circuit Judge, and GOODWIN*,
Senior Circuit Judge.
TJOFLAT, Chief Judge:
*
Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for
the Ninth Circuit, sitting by designation.
The members of Alabama's appellate courts—the Supreme Court,
the Court of Criminal Appeals, and the Court of Civil Appeals1—are
elected to office in at-large partisan elections. 2 In this case,
Hoover White, a black voter and representative of a class of all
black voters in Alabama,3 contends that this at-large election
scheme dilutes the voting strength of black voters in Alabama in
violation of section 2 of the Voting Rights Act because it affords
black voters, on account of their race, "less opportunity [than
white voters] ... to participate in the political process and to
elect representatives of their choice." Voting Rights Act of 1965,
Pub.L. No. 89-110, § 2(b), 79 Stat. 437, 42 U.S.C. § 1973(b)
(1988). White also contends that the challenged at-large election
scheme denies Alabama's black voters the equal protection of the
laws guaranteed them by the Fourteenth Amendment. He seeks
injunctive relief sufficient to remedy these deficiencies in the
method of electing Alabama's appellate judges. Finally, White
1
The judicial power of Alabama is vested exclusively in a
"unified judicial system" consisting of, at the appellate level,
a Supreme Court, a Court of Criminal Appeals, and a Court of
Civil Appeals. Ala. Const. amend. 328, § 6.01(a). The Supreme
Court consists of "one chief justice and such number of associate
justices as may be prescribed by law." Id. § 6.02(a). The
courts of appeals consist of "such number of judges as may be
provided by law." Id. §§ 6.03(a), (b).
2
The Alabama Constitution provides that the justices of the
Supreme Court and the judges of the courts of appeals are
"elected by vote of the electors within the territorial
jurisdiction of their respective courts." Ala. Const. amend.
328, § 6.13 (1973). Such elections are part of Alabama's
partisan general election scheme for state office holders. See
generally Ala.Code tit. 17 (1995).
3
Joining White as plaintiffs and class representatives are
John Dillard and Glenn Moody, both of whom are black voters. We
refer to these plaintiffs collectively as "White."
claims that the legislature's alteration of the structure and
composition of Alabama's appellate courts, in 1969 and on two
subsequent occasions, has not been precleared under section 5 of
the Voting Rights Act. He seeks an order declaring the
legislature's actions inoperative. See 42 U.S.C. § 1973c (1988).4
Shortly after White commenced this action, his attorneys and
the Attorney General of Alabama entered into settlement
negotiations; these negotiations led to an agreement which the
4
Section 5 of the Voting Rights Act requires certain states,
including Alabama, to obtain either judicial preclearance from
the United States District Court for the District of Columbia or
administrative preclearance from the Attorney General of the
United States before altering "any voting qualification or
prerequisite to voting, or standard, practice, or procedure with
respect to voting...." 42 U.S.C. § 1973c. Section 5 applies to
judicial elections, Clark v. Roemer, 500 U.S. 646, 111 S.Ct.
2096, 114 L.Ed.2d 691 (1991), and thus may apply to the
legislative enactments involved in this case.
If "voting changes subject to § 5 have not been
precleared, § 5 plaintiffs[, such as White in this case,]
are entitled to an injunction prohibiting the State from
implementing the changes." Id. at 652-53, 111 S.Ct. at
2101. Such relief may not be granted by a United States
district judge; rather, it must be granted by a three-judge
court convened by the chief judge of the judicial circuit in
which the case is filed and consisting of one United States
circuit judge and two United States district judges (one of
whom is usually the judge before whom the case was filed).
See 42 U.S.C. § 1973c; 28 U.S.C. § 2284 (1994).
As indicated in part I.B., infra, after White filed his
complaint, a three-judge court was convened to hear his § 5
claims. That court lacks jurisdiction, however, to
entertain White's claims under § 2 and the Equal Protection
Clause of the Fourteenth Amendment. Accordingly, those
claims remain before the district court—specifically, before
the judge to whom the case was assigned at the time of
filing, the Honorable Myron H. Thompson.
In this appeal, we are called upon to review a final
judgment entered by Judge Thompson. References herein to
the district court are, therefore, to Judge Thompson and not
to the three-judge court, unless otherwise indicated.
United States Department of Justice precleared. The district
court, over the objection of the appellants, who had intervened in
the case, approved the agreement and made it part of the final
judgment now before us. White v. State of Alabama, 867 F.Supp.
1519 (M.D.Ala.1994). That judgment, if implemented, will
restructure the Supreme Court of Alabama and the two courts of
appeals by increasing the size of those courts and creating a
selection process that will ensure that the black voters of Alabama
have at least two "representatives of their choice" on each court.
The appellants, a black voter and a judge on the Court of
Criminal Appeals, contend that in fashioning such relief the
district court exceeded its authority under section 2 of the Voting
Rights Act,5 and that the court's entry of the judgment therefore
constituted an abuse of discretion. We agree, and therefore vacate
the district court's judgment and remand the case for further
proceedings.
This opinion is organized as follows. Part I describes the
history and current structure of Alabama's appellate courts and
traces the history of this litigation. Part II demonstrates how
the relief provided by the court's judgment is foreclosed by
section 2 of the Voting Rights Act. Part III addresses a district
court's power to increase the size of an elected governmental
body—here, Alabama's three appellate courts—in an effort to remedy
5
Appellants also contend, among other things, that the
relief granted by the district court is precluded by the Equal
Protection Clause of the Fourteenth Amendment because it
establishes a de facto, if not a de jure, racial quota system.
Because we dispose of the case on statutory grounds, we do not
address the constitutional argument.
racial vote dilution. Finally, part IV addresses, and rejects, the
argument advanced by White and the United States, as amicus curiae,
that, notwithstanding the limitations discussed in parts II and
III, the remedy provided by the district court's judgment is
permissible because the judgment is a "consent decree."
I.
A.
Prior to 1969, Alabama's appellate courts consisted of a
seven-justice Supreme Court and a three-judge intermediate
appellate court called the Court of Appeals. The members of these
courts were chosen for staggered six-year terms in at-large
partisan elections. Vacancies occurring prior to the end of a term
were filled by appointment by the Governor;6 these appointees then
stood for election in Alabama's next general election held after
the appointee had served one year in office.
In 1969, the Alabama legislature added two seats to the
Supreme Court. Act No. 602, § 1, 1969 Ala.Acts 1087 (codified at
Ala.Code § 12-2-1 (1995)). The legislature also divided the Court
of Appeals into the Court of Criminal Appeals and the Court of
Civil Appeals, each with three judges. Act No. 987, § 1, 1969
Ala.Acts 1744. In 1971, the legislature added two judges to the
Court of Criminal Appeals, Act No. 75, § 1, 1971 Ala.Acts 4283, and
in 1993, it added two seats to the Court of Civil Appeals, Act No.
93-346, §§ 1, 4, 1993 Ala. Acts 536, 537. See Ala.Code § 12-3-1
6
The Alabama Constitution provides that, "The office of a
judge shall be vacant if he dies, resigns, retires, or is
removed. Vacancies in any judicial office shall be filled by
appointment by the governor...." Ala. Const. amend. 328, § 6.14
(1973).
(1995). The elections for appellate judges have continued to be
partisan and held at large, and the Governor has continued to fill
mid-term vacancies.
B.
On January 27, 1994, Hoover White, on behalf of himself and
the black voters of Alabama, brought this suit against the State of
Alabama and its Secretary of State. He alleged that the State had
not obtained preclearance, as required by section 5 of the Voting
Rights Act, of any of the legislative enactments described above.7
White asked for a declaration that these enactments were void ab
initio and for appropriate injunctive relief. A three-judge court
was promptly convened to consider White's section 5 claims. 8 See
42 U.S.C. § 1973c; 28 U.S.C. § 2284.
White also alleged that the at-large system for electing the
members of Alabama's appellate courts denies Alabama's black
voters, on account of their race, the same opportunity as that
given to white voters to participate in the election of those
members. He asked the court (1) to declare the at-large election
scheme illegal under both section 2 of the Voting Rights Act and
7
White's original complaint challenged only the split of the
Court of Appeals and the subsequent addition, in 1971 and 1993,
of two judges to each of the new courts. On February 16, 1994,
White amended his complaint to include a challenge to Act No.
602, 1969 Ala.Acts 1087, which enlarged the Supreme Court. We
refer to White's amended complaint as the "complaint."
8
On April 15, 1994, as indicated in the text part I.D.,
infra, White's attorneys and the Alabama Attorney General advised
the three-judge court that they had reached the settlement
agreement described in the text and asked that court to stay
further proceedings on White's § 5 claim so that the district
court could consider the agreement. The three-judge court
granted their request the same day.
the Equal Protection Clause of the Fourteenth Amendment, and (2) to
fashion an appropriate remedy to cure these violations.
Within days after White filed his complaint, and before the
defendants were required to file their answer, White's attorneys
and the Attorney General of Alabama, Jimmy Evans, agreed to settle
the case.9 As they were negotiating the terms of the settlement,
Ralph Bradford, a black voter, moved the court on February 2, 1994,
for leave to intervene in the case as a plaintiff representing the
black voters of Alabama. In the complaint attached to his motion,
Bradford alleged that the at-large system for electing the state's
appellate judges dilutes the votes of black electors and, pursuant
to Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25
(1986), he sought an injunction requiring that the judges instead
be elected from single-member districts. Six days later, Judge
Mark Montiel, a member of the Court of Criminal Appeals, 10 sought
to intervene as a defendant representing a class of all Republican
voters, and a subclass of white Republicans.11 Montiel alleged that
the at-large system dilutes the votes of Republican electors in
9
Jimmy Evans was the Attorney General of Alabama throughout
the proceedings in the district court. He was defeated in the
November 1994 general election by the current Attorney General,
Jeff Sessions. In this opinion, the term "Attorney General"
denotes the Attorney General of Alabama.
10
Judge Montiel did not seek reelection to the Court of
Criminal Appeals in the November 1994 general election;
accordingly, his term of office on that court expired effective
in January 1995.
11
Also named with Montiel as class representatives were
Johnny Curry, a Republican member of the Alabama House of
Representatives, and Jack Williams, executive director of the
Alabama Republican Caucus. We refer to these class
representatives collectively as "Montiel."
violation of the Equal Protection Clause; like Bradford, he sought
the creation of single-member districts.12
On February 15, 1994, with these motions pending and without
the benefit of the State's response to the complaint, the district
court held a status conference. The conference was held off the
record, and the docket sheet does not indicate who attended the
conference or what transpired. What the record does reveal is that
the next day the district court entered an order inviting the
United States Department of Justice to participate in the
proceedings as amicus curiae.
On February 22, the State and the Secretary of State answered
White's complaint. The answer denied that the legislative acts
dividing the Court of Appeals and increasing the size of the three
13
appellate courts had not been precleared under section 5. The
answer also denied that the at-large election scheme violates
section 2 and that the scheme denies Alabama's black voters the
equal protection of the laws.
Two days later, the Attorney General and White, proceeding
pursuant to Federal Rule of Civil Procedure 68, filed an "offer and
notice of acceptance of judgment" which stated that the case had
12
On March 4, 1994, the district court denied Montiel's
motion to intervene as a defendant. On May 17, 1994, as
indicated part I.D., infra, the court granted Montiel leave to
intervene as a class plaintiff on behalf of Republican voters.
13
With respect to Act No. 93-346, which increased the size
of the Court of Civil Appeals, the Attorney General asserted in
the State's answer that the statute had been submitted to the
Department of Justice for preclearance but that the Department
had not responded to the submission.
settled.14 In this pleading, they asked the court to give
"preliminary approval ... to the [proposed] judgment, and ... to
set a time, date, and method of notice to class members for the
purpose of facilitating a Rule 23(e) fairness hearing." Finally,
they requested that, "[f]ollowing the Rule 23 fairness hearing[,]
... the court give final approval to the judgment, and request[ed]
the Clerk to forthwith enter said judgment in accordance with Rule
68...."15
C.
The agreement that White and the Attorney General submitted
under Rule 68 would, if implemented, permit the State to retain its
at-large system of electing appellate judges. To remedy the racial
vote dilution that this system presumably causes, however, the
agreement would provide a mechanism to ensure that those courts
would have black membership approximately proportionate to the
percentage of blacks in the Alabama voting population. The
agreement, therefore, would create both a quota system and
proportional representation.16
14
The Rule 68 pleading stated that, in agreeing to the
settlement, the State was not admitting liability under the
Voting Rights Act or the Constitution. In fact, throughout this
litigation, the State has stood firm in its denial of liability
under §§ 2 and 5 of the Voting Rights Act and the Equal
Protection Clause of the Fourteenth Amendment. See infra note
15.
15
In the event the district court did not approve the
proposed judgment, the State reserved the right to stand on its
answer to White's complaint and to contest the plaintiff's claims
under §§ 2 and 5 of the Voting Rights Act and the Equal
Protection Clause.
16
To ensure the perpetuation of the quota system and
proportional representation, the proposed settlement agreement
provided:
For this mechanism to function at the courts of appeals level,
the State (presumably the legislature) would first create two
additional judgeships on each of those courts. A "judicial
nominating commission" would then propose a slate of three
candidates for each of these judgeships; all of the candidates
would be black—from plaintiff White's class. The Governor would
fill the position by appointment from the slate; if the Governor
"fail[ed] or refus[ed], within the allotted time," to do so, the
Chief Justice of the Alabama Supreme Court would make the
appointment.17 First Proposed Judgment ¶ 4(a)(iv). The appointee
would then serve a full six-year term following which he or she
would stand for election. Thereafter, if at any time there were
fewer than two black judges on either court, any vacancy on the
court would be filled through the foregoing nomination and
[I]f, after January of 2003, a situation exists on the
Supreme Court of Alabama, the Alabama Court of Criminal
Appeals or the Alabama Court of Civil Appeals whereby
the number of class members who are Associate Justices
or Judges on any such Court is fewer than two for more
than one year, for any reason, the plaintiffs and the
State of Alabama shall attempt to agree on an
appropriate measure designed to remedy this situation
before the next general election cycle. If the parties
are unable to agree on a remedial measure, then the
plaintiffs reserve the right to petition the Court for
appropriate relief.
First Proposed Judgment ¶ 6. Nothing in this proposed
agreement or in the record of the proceedings in the
district court indicates what such "appropriate relief"
might entail.
17
The first proposed judgment, as well as the modified
agreement White and the Attorney General presented to the
district court on April 15, 1994, called for the nominating
commission to send its slate of candidates to both the Governor
and the Chief Justice. The period of time allotted for making
the appointment would vary depending on the circumstances.
appointment process, and the appointee would stand for election
after one year.
The nominating commission would be composed of five members.
Two members would be chosen "by and from" the White class (by its
attorneys), one by and from the Alabama State Bar (an organization
consisting of all lawyers licensed to practice in Alabama), one by
and from the Alabama Lawyers Association (a traditionally black
organization), and one by the other four acting together. In the
event of a deadlock, the fifth position would be filled by and from
the Alabama Black Legislative Caucus. Thus, presumably three, and
possibly all five, of the commissioners would be black.
The same nomination and appointment process would ensure the
presence of at least two black justices on the Supreme Court.18 If
by 1995 there were fewer than two black justices on the court, any
vacancy on the court would be filled through the process described
above until two of the court's members were black. The appointee
would stand for election in Alabama's next general election. In
1996, if there were still fewer than two black justices, the State
would determine whether every incumbent justice whose seat was up
for reelection in 1996 qualified for election under Alabama law.
If a justice did not so qualify, his or her seat would become a
"remedial" seat and would be filled through the nominating process,
with the appointee serving a full six-year term. In 1998 and 2000,
if fewer than two justices were black, the legislature would create
18
As in the case of appointments to the courts of appeals,
if the Governor "fail[ed] or refus[ed]" to appoint an associate
justice from the nominating commission's slate within the
allotted time, the Chief Justice of the Alabama Supreme Court
would make the appointment.
an additional seat on the Supreme Court; the seat would then be
filled by gubernatorial appointment from a slate of three black
candidates presented by the nominating commission. The appointee
would serve a full six-year term and then stand for election.19
Because this appointment mechanism could lead to a Supreme
Court of eleven justices and the parties desired a court of nine,
the agreement provided "that if the number of associate justices is
increased [beyond nine], a seat on the supreme court would be
abolished if it was vacated by a white justice." White, 867
F.Supp. at 1561.20 The parties' proposal, and thus the district
court's jurisdiction over the case, "was of unlimited duration."
Id. at 1532.
On March 4, 1994, while the settlement proposal was pending
before the court for preliminary approval, the court granted
Bradford's motion for leave to intervene as a plaintiff. The court
did not, however, pass on Bradford's request that he be certified
19
How these provisions regarding the Supreme Court would
operate together is illustrated by the following hypothetical.
Suppose that by 1995 the Supreme Court had no black justices. If
one justice retired, his or her seat would be filled through the
appointment process described in the text; the appointee would
then run in the 1996 general election. If, following that
election, the court had fewer than two black justices, the
legislature would create a seat, to which a black would be
appointed. That appointee would serve out a six-year term and
then stand for election. Finally, if, after the 1998 election,
the court had fewer than two black justices, the legislature
would create a second new seat (for a total of eleven) to which a
black would be appointed for a six-year term.
20
The record contains no indication as to when the Alabama
Supreme Court might return to a court of nine justices, nor does
the record indicate whether a seat vacated by a white justice
would be abolished if the court had fewer than two black
justices. At the very least, the proposed agreement is ambiguous
on this point.
to represent a class of black voters. In fact, the court never
acted on that request. Also on March 4, Christopher Boehm, a white
voter, moved for leave to intervene as a "defendant supporting the
current system of at-large elections." Id. at 1530. Boehm sought
certification of a class of Alabama electors who are not black.
The court granted Boehm's motion on May 24.
D.
On April 5, the district court held a third off-the-record
status conference.21 Again, the docket sheet does not indicate who
attended the meeting or what transpired. Apparently as a result of
this conference, White and the Attorney General modified their
earlier settlement proposal and, on April 15, submitted the
modification to the court in a second Rule 68 filing. The
modification purportedly eliminated the quota system originally
proposed. Specifically, the new agreement eliminated the
requirement that the slates presented by the nominating commission
to the Governor contain only blacks. The commission's composition,
however, would remain predominantly black.
In addition, the new agreement retained the proportional
representation feature of the original proposal.22 That is, the
21
The court's second off-the-record status conference was
held on March 3; it does not appear to be relevant for our
purposes.
22
To ensure the maintenance of proportional representation
on Alabama's appellate courts, the modified agreement provided
that:
[I]f, after January of 2003, a situation exists on the
Supreme Court of Alabama, the Alabama Court of Criminal
Appeals or the Alabama Court of Civil Appeals whereby
there are fewer than 2 sitting Associate Justices or
judges on any such court who either are members of the
parties intended that two seats on the Supreme Court and the courts
of appeals would be occupied by representatives of Alabama's black
voters.
Under the new arrangement, the district court would retain
jurisdiction for twenty-four years.23 However, "if the court
[found] that any part of the judgment ha[d] not been met it
[could], in its discretion, extend any portion of the judgment it
deem[ed] appropriate." Id. at 1571; Final Judgment ¶ 11.24
Prior to this second Rule 68 submission, the United States
Department of Justice, exercising its authority under section 5 of
the Voting Rights Act, precleared the challenged legislative
enactments and the changes the modified settlement agreement would
make to Alabama's appellate court structure, contingent on the
district court's approval and implementation of that agreement.
Armed with this conditional approval, White and the Attorney
General, on April 15, 1994, jointly moved the three-judge court
presiding over the section 5 claims to stay further proceedings
plaintiff class or who were appointed pursuant to the
judicial nominating commission procedure created by
this judgment for more than one year, for any reason,
the plaintiffs and the State of Alabama shall attempt
to agree on an appropriate measure designed to remedy
this situation before the next general election cycle.
If the parties are unable to agree on a remedial
measure, then the plaintiffs reserve the right to
petition the Court for appropriate relief.
Final Judgment ¶ 7; White, 867 F.Supp. at 1570.
23
As noted in part I.C., supra, under the original proposal
the district court would have retained jurisdiction for an
"unlimited duration."
24
Nothing in the modified proposal or in the record
indicates the extent of the district court's discretion to
"extend any portion of the judgment it deem[ed] appropriate."
with respect to those claims so that the district court could
review their settlement proposal. The three-judge court granted
their motion that day.25
On May 3, 1994, the district court held its fourth status
conference. Again, the conference was held off the record, and the
docket sheet does not indicate who attended it or what transpired.
On May 17, the court conditionally approved the modified settlement
agreement, and scheduled a fairness hearing for July 29, 1994.
Also on May 17, the district court, having previously denied Judge
Montiel leave to intervene as a party defendant representing
Republican voters, see supra note 12, granted Montiel leave to
intervene as a plaintiff and to file a complaint on behalf of those
voters. In his complaint, Montiel claimed that the at-large scheme
of electing Alabama's appellate judges denied Republican voters the
equal protection of the laws; as a remedy, he sought replacement
of the at-large scheme with single-member districts.
Montiel also objected to the modified settlement agreement.
First, he claimed that the Voting Rights Act foreclosed as a remedy
for vote dilution the nominating commission appointment process
White and the Attorney General were advocating. Alternatively, he
contended that the proposed appointment process would create an
unconstitutional racial quota system for the selection of Alabama's
appellate judges. Finally, he asserted that the Attorney General
had agreed to this arrangement for the express purpose of
25
The three-judge panel held that it did "not have the
jurisdiction to consider the validity of the settlement
agreement," because the settlement was essentially a § 2 remedy.
White v. State of Alabama, 851 F.Supp. 427, 428-429
(M.D.Ala.1994).
perpetuating in office—on the Supreme Court and the courts of
appeals—members of the Democratic party and effectively
26
disenfranchising Alabama's Republican voters. If the court
rejected the proposed settlement and ordered instead that Alabama's
appellate judges be elected from single-member districts—the
traditional vote dilution remedy—Republican voters would have a
meaningful opportunity to elect members of their party to office.
E.
On July 29, 1994, the "fairness hearing" was held as
scheduled.27 At the hearing, the court entertained objections from
intervenors Bradford and Montiel, and from three non-party
26
In addition, Montiel alleged that by eschewing the
establishment of single-member districts and preserving the
at-large system of elections, the proposed settlement would
protect the incumbencies of the current members of those courts
by ensuring that none of those members would be opposed for
reelection by another member of the court.
27
In compliance with Fed.R.Civ.P. 23(e), which governs the
settlement of class actions, White and the Attorney General
provided notice of the proposed settlement in several Alabama
newspapers. Notice is provided in class action settlements to
give members of the class the opportunity to object to the
proposed settlement; here, the notice went "to all resident
citizens and electors of the State of Alabama." Although the
notice went to all of Alabama's citizens, in determining whether
the settlement was objectionable the district court considered
only whether the black community opposed it. Noting that only
two members of that community objected to the proposed
settlement, the court inferred that the settlement was
unobjectionable. White, 867 F.Supp. at 1534.
After studying the notice, however, we conclude that
the district court erred in drawing such inference. To be
effective, class notice must be understandable. The notice
provided by White and the Attorney General was printed in
very small type and couched in "legalese" at times so dense
that even a lawyer would have had difficulty determining the
settlement's probable impact on Alabama's judicial system
and on the rights of Alabama voters. It is not surprising
that few people objected.
objectors,28 that a final judgment incorporating the settlement
would be unlawful on several grounds. The objectors asserted that
the judgment would (1) provide a remedy not authorized by the
Voting Rights Act; (2) violate the Equal Protection Clause by
setting aside race-based seats on Alabama's appellate courts; (3)
violate the Alabama Constitution by providing for the appointment,
rather than election, of judicial officers for six-year terms; and
(4) disenfranchise all Alabama voters by effectively removing some
judicial elections from the ballot box.
These objectors also contended that the Attorney General, a
member of the executive branch of the state government, lacked the
authority to compel the legislative branch of that government to
increase the size of Alabama's appellate courts as the proposed
settlement would require. Under Alabama's constitution, see supra
note 1, and its separation of powers doctrine,29 the determination
of the size of the state's appellate courts is the legislature's
prerogative. The objectors also contended that the Attorney
28
Among the non-party objectors were Jeff Sessions, the
present Attorney General of Alabama, and Perry Hooper, who became
Chief Justice of Alabama as the result of the November 1994
general election.
29
The separation of powers doctrine is expressed in the
Alabama Constitution:
In the government of this state, except in the
instances in this Constitution hereinafter expressly
directed or permitted, the legislative department shall
never exercise the executive and judicial powers, or
either of them; the executive shall never exercise the
legislative and judicial powers, or either of them;
the judicial shall never exercise the legislative and
executive powers, or either of them; to the end that
it may be a government of laws and not of men.
Ala. Const. art. III, § 43.
General lacked the authority to remove the selection of an
appellate judge from the ballot box. That authority resides in the
people of Alabama; it is exercised through constitutional
amendment. Thus, according to the objectors, the Attorney General,
in purporting to bind the legislature and the people of Alabama to
the changes the settlement would effect, plainly exceeded his
authority.
At the end of the hearing, the district court took the
foregoing objections under advisement. Also taken under advisement
was a written objection filed by intervening defendant Boehm.30
Boehm's concern was that, although the modified proposal had
eliminated the requirement that only blacks be appointed through
the nominating process, the composition of the commission was such
that only blacks would be appointed.31
On August 31, 1994, the court decided to entertain the
plaintiffs' evidence of racial vote dilution and scheduled a
hearing thereon for September 2. At that hearing, the court heard
the testimony of two expert witnesses who had been employed by
White to study voting patterns in prior statewide elections in
Alabama. These experts concluded that the voting patterns
demonstrated that the state's white voters and black voters tended
to vote in racial blocs; thus, white voters were usually able to
30
The court also entertained several other written
objections, none of which are pertinent here.
31
Boehm's memorandum expressed this point as follows:
"[T]he record ... clearly establish[es] that the purpose of the
Judicial Nominating Commission is to secure the approval of
African-American candidates on behalf of African-American
voters." Record vol. 6, no. 128, at 5.
preclude black voters from electing their candidates of choice.
The experts stated that this situation could be remedied by having
the nine justices of the Supreme Court and the five judges of the
respective courts of appeals elected from single-member districts.
According to one of the experts, Jerry Wilson, the districts could
be drawn so that black voters would comprise a majority in two
Supreme Court districts and in one district for each court of
appeals. At the conclusion of the hearing, the court took the case
under submission.
On September 14, the district court held yet another
off-the-record status conference. The docket sheet does not reveal
who attended the conference or what transpired there. The next
day, White and the Attorney General filed a "Joint Notice of Filing
of Revised Final Judgment." This document revised the modified
proposal considered at the fairness hearing in two substantive
respects.
First, the revision made it possible for the nominating
commission to have more than nominal white membership. Although it
retained the requirement that two members of the commission be
blacks, selected by White's lawyers, and that a third member be
selected by the traditionally black Alabama Lawyers Association,
the revision permitted that association to appoint from outside its
membership and thus, perhaps, place a non-black person on the
commission. Similarly, in the event of a deadlock in choosing the
fifth member of the commission, the Alabama Black Legislative
Caucus could also appoint a non-black to the commission.32
Second, the revision eliminated the authority of the Chief
Justice of the Alabama Supreme Court to make an appointment from
the nominating commission's slate if the Governor failed or refused
to do so.
White and the Attorney General served their joint notice on
all of the other parties in the case: Bradford, Montiel, and
Boehm. Although the proposed revisions to the judgment would
substantively change the judicial appointment process, the court
invited no response from these other parties. The court did hold
another status conference on October 4—this time on the record—but
neither these revisions nor any other substantive provisions of the
proposed final judgment were discussed.33
F.
On October 6, 1994, the district court issued its "Memorandum
Opinion and Order" and entered the final judgment White and the
Attorney General had proposed following the September 14 status
conference. White v. State of Alabama, 867 F.Supp. 1519
(M.D.Ala.1994). The court rejected the arguments in opposition to
32
The proposed revision appears to have been an attempt to
assuage Boehm's concern that White's and the Attorney General's
previous proposals, in providing for a commission dominated by
blacks, would ensure that only blacks would be presented to the
Governor for appointment. See supra note 31. Whether the
proposed revision would produce a different result is
questionable.
33
Rather, the record reveals that the court and counsel
canvassed the seats on the Supreme Court and the courts of
appeals in an effort to identify those whose seats had not been
precleared under § 5 of the Voting Rights Act. They also
discussed how long some of the appointees to these courts had
served prior to standing for election.
the settlement agreement presented at the July 29 fairness hearing.
Specifically, the court rejected the notion that the remedy
provided by the judgment could not be sanctioned under the Voting
Rights Act and that the remedy effectively prescribed a quota
system that could not be squared with the Equal Protection Clause.
Turning to the argument that the Attorney General had exceeded his
authority by agreeing to the proposed settlement, the court held
that because the Attorney General has broad authority to conduct
litigation for the State, he had the authority to enter into the
agreement at issue. Additionally, the court observed that, if
necessary to remedy a case of vote dilution, the court would itself
have the authority to impose the sort of remedy that White and the
Attorney General had proposed.
After disposing of these objections, the court addressed the
question of whether, in the face of the State's denial of
liability, the plaintiffs had made out a prima facie case under the
Voting Rights Act. Citing Alabama's history of discrimination
against blacks and the opinion of the two election experts, the
court found "a strong basis in evidence" for a case of vote
dilution under section 2 of the Act sufficient to justify its
approval of the proposed settlement agreement. White, 867 F.Supp.
at 1554, 1554-57. Given this conclusion, the court apparently
deemed it unnecessary to reach White's claim under the Equal
Protection Clause.
The same day it entered a final judgment incorporating the
settlement agreement White and the Attorney General had reached,
the court granted the State summary judgment on Montiel's equal
protection claims. White v. State of Alabama, 867 F.Supp. 1571
(M.D.Ala.1994). Montiel appeals that ruling in No. 94-7081. We
dispose of part of his appeal in the margin.34 We consider the
remaining part of Montiel's appeal in No. 94-7024, which Montiel
and Bradford are prosecuting jointly.35 We resolve their appeal in
the discussion that follows.
II.
The first question we address is whether section 2 of the
Voting Rights Act forecloses the remedy provided in the district
34
As noted in part I.D., supra, Montiel alleged in his
complaint that the at-large system for electing Alabama's
appellate judges denies Republican voters the equal protection of
the laws. As a remedy, he sought the creation of a single-member
district scheme. In addition to asserting this claim, Montiel
questioned the legality of the settlement White and the Attorney
General had proposed. He claimed that the Voting Rights Act
foreclosed the adoption of the settlement as a remedy for vote
dilution. Further, he alleged that the proposed appointment
process would create an unconstitutional racial quota system for
the selection of Alabama's appellate judges. Finally, he
contended that the Attorney General and White crafted their
settlement for the express purpose of perpetuating in office
members of the Democratic Party and effectively disenfranchising
Alabama's Republican voters.
In appealing the district court's grant of summary
judgment, Montiel did not challenge the district court's
rejection of the cause of action he brought on behalf of
Republican voters under the Equal Protection Clause.
Accordingly, we deem it abandoned and dismiss his appeal in
No. 94-7081. We consider Montiel's objections to the
remedial portions of the district court's final judgment in
No. 94-7024. In that appeal, Montiel and Bradford filed a
joint brief; hence, we treat their arguments as having been
jointly made.
35
Although the State of Alabama is an appellee, the present
Alabama Attorney General, Jeff Sessions, also challenges as
unlawful the district court's final judgment; in effect, he
contends that his predecessor in office invited the district
court to commit error. For purposes of this appeal, however, we
assume that the State is bound by the settlement agreement the
former Attorney General, Jimmy Evans, urged upon the district
court.
court's judgment. In the context of this case, the question
becomes whether the Act precludes the district court from removing
judicial selection from the ballot box, and whether the Act
precludes proportional representation. We consider these issues in
turn.
A.
Section 2 of the Act applies to state judicial elections.
Chisom v. Roemer, 501 U.S. 380, 404, 111 S.Ct. 2354, 2368, 115
L.Ed.2d 348 (1991). Here we are concerned with whether the relief
provided by the district court's judgment is within the scope of
section 2. See United States v. Dallas County Comm'n, 850 F.2d
1433, 1437-38 (11th Cir.1988), cert. denied, 490 U.S. 1030, 109
S.Ct. 1768, 104 L.Ed.2d 203 (1989).
Section 2 provides:
(a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or applied
by any State or political subdivision in a manner which
results in a denial or abridgement of the right of any citizen
of the United States to vote on account of race or color....
(b) A violation of subsection (a) of this section is
established if, based on the totality of circumstances, it is
shown that the political processes leading to nomination or
election in the State or political subdivision are not equally
open to participation by members of a class of citizens
protected by subsection (a) of this section in that its
members have less opportunity than other members of the
electorate to participate in the political process and to
elect representatives of their choice. The extent to which
members of a protected class have been elected to office in
the State or political subdivision is one circumstance which
may be considered: Provided, That nothing in this section
establishes a right to have members of a protected class
elected in numbers equal to their proportion in the
population.
42 U.S.C. § 1973 (emphasis added).
Congress enacted section 2 to give those who had been
disenfranchised on account of their race the opportunity to
participate in the political process. The Act is designed to
redress past discrimination that inhibited the ability of
minorities to express their preference for certain candidates
through the electoral process, i.e., at the ballot box.36 Sections
4 and 5 of the Act prohibit the use of tests or devices, and the
alteration of voting qualifications or procedures, in a manner that
deprives citizens of their right to vote. See 42 U.S.C. §§ 1973b,
1973c. Section 2 proscribes practices that, while permitting a
mechanical exercise of the right to vote, dilute the votes of a
racial minority (through gerrymandering or other tactics) and thus
render its votes meaningless. See Shaw v. Reno, --- U.S. ----, ---
-, 113 S.Ct. 2816, 2823, 125 L.Ed.2d 511 (1993). In essence, the
Act empowers minorities by providing them meaningful access to the
ballot box.
The nexus between section 2 and the act of voting is further
evidenced when one considers the source of authority for section 2.
Section 2 was enacted to enforce the Fifteenth Amendment's
prohibition against denying a citizen the right to vote "on account
of race."37 U.S. Const. amend XV; NAACP v. New York, 413 U.S. 345,
36
The legislative history is clear in this respect: "The
court should exercise its traditional equitable powers to fashion
the relief so that it completely remedies the prior dilution of
minority voting strength and fully provides equal opportunity for
minority citizens to participate and to elect candidates of their
choice." S.Rep. No. 417, 97th Cong., 2d Sess. 31, reprinted in
1982 U.S.C.C.A.N. 177, 208 (emphasis added).
37
The Fifteenth Amendment reads:
Section 1. The right of citizens of the United
States to vote shall not be denied or abridged by the
United States or by any State on account of race,
350, 93 S.Ct. 2591, 2595, 37 L.Ed.2d 648 (1973); Allen v. State
Bd. of Elections, 393 U.S. 544, 556, 89 S.Ct. 817, 826, 22 L.Ed.2d
1 (1969) ("The Act was drafted to make the guarantees of the
Fifteenth Amendment finally a reality for all citizens.").38
A judicial remedy fashioned under section 2 must therefore
enhance the ability of the plaintiffs to elect their candidates of
choice. Any remedy that has the effect of eliminating this
essential element of choice is invalid, for it contravenes the
spirit and purpose of the Act. A remedy such as the one fashioned
in this case, calling for the appointment of judges to posts which,
under state law, are to be filled by election, effectively
nullifies voting power and contravenes the stated objectives of
color, or previous condition of servitude.
Section 2. The Congress shall have power to
enforce this article by appropriate legislation.
U.S. Const. amend. XV (emphasis added). As Justice
Frankfurter stated, "[t]he Amendment nullifies sophisticated
as well as simple-minded modes of discrimination. It hits
onerous procedural requirements which effectively handicap
exercise of the franchise by the colored race...." Lane v.
Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281
(1939) (emphasis added). It has been employed to strike
down such tactics as the grandfather clause, see Guinn v.
United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340
(1915), and racial gerrymandering, see Gomillion v.
Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).
Constitutional challenges to those practices are now
analyzed under the Equal Protection Clause rather than the
Fifteenth Amendment.
38
The same is true of other provisions in the Voting Rights
Act. See, e.g., City of Rome v. United States, 446 U.S. 156,
177, 100 S.Ct. 1548, 1562, 64 L.Ed.2d 119 (1980) ("[T]he Act's
ban [in § 5] on electoral changes that are discriminatory in
effect is an appropriate method of promoting the purposes of the
Fifteenth Amendment...."). For a more detailed account of the
history and purpose of the Voting Rights Act, see Shaw v. Reno, -
-- U.S. ----, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).
section 2.
In short, the district court has employed the Voting Rights
Act to usurp voting power from the very minority which, under the
Act, is entitled to wield it. Such a practice can hardly be
condoned. We have repeatedly insisted that the Act guarantees the
right to elect representatives. See, e.g., Southern Christian
Leadership Conference v. Sessions, 56 F.3d 1281, 1296 n. 25 (11th
Cir.1995) (en banc), cert. denied, --- U.S. ----, 116 S.Ct. 704, --
- L.Ed.2d ---- (1996). The will of the people is expressed through
elections, not by commissions created to divine their preferences
for them. We "find[ ] a certain irony in using the Voting Rights
Act to deny citizens the right to select public officials of their
choice."39 Brooks v. State Bd. of Elections, 848 F.Supp. 1548,
1568, remanded and appeal dismissed as moot, 59 F.3d 1114 (11th
Cir.1995) (emphasis added).
The district court seeks to justify this denial by presuming
that the nominating commission will "serve as a proxy for black
voters" in choosing the slate presented to the Governor for
39
We note that all Alabama voters, both black and white, are
disenfranchised by the settlement's appointment process. The
district court's order does not address this problem. The
court's observation that some of Alabama's judges have been
appointed to office in the past is of no moment. See White, 867
F.Supp. at 1536. Those appointments have occurred pursuant to
state law, not as a remedy for a violation of § 2 of the Voting
Rights Act. Under the Alabama Constitution, the governor fills
vacancies that occur mid-term. Ala. Const. amend. 328, § 6.14
(1973). Also beside the point is the court's observation that
the judges appointed pursuant to the final judgment will
eventually have to stand for election, and thus that the
disenfranchisement wrought by the court's judgment will merely be
temporary. See White, 867 F.Supp. at 1536. The fact remains
that some of those judges will hold office for six years before
the voters of Alabama have a chance to meet them in the ballot
box. See id. at 1526.
appointment to the appellate bench. White, 867 F.Supp. at 1561.
We are not persuaded. How the nominating commission is to be
informed of the views of Alabama's black voters is nowhere
explained. The best the court could say is that the commission is
"composed in a manner to attempt to reflect the interests of most
African-American Alabamians." Id. at 1526.
The nominating commission created by the district court's
judgment resembles, but only superficially, the nominating
commissions many states employ under the so-called "Missouri Plan"
as a means of ensuring that judicial appointments are made on merit
40
as opposed to sheer political expediency. Under a typical
40
Thirty-four states and the District of Columbia currently
have "Missouri Plans" for the selection of some or all of their
judges. See Jona Goldschmidt, "Merit Selection: Current Status,
Procedures, and Issues," 49 U.Miami L.Rev. 1, 2-3 (1994). In
most states, the plan is implemented by a constitutional or
statutory provision. Id. at 19-20.
Every state in the Eleventh Circuit uses a nominating
commission for some judicial appointments. In Alabama,
several counties have five-member commissions for the
appointment of circuit judges (who, following their
appointment, must run in the next general election). Two of
the commission members are lawyers chosen by the state or
county bar. Two non-lawyer members are selected by the
legislature, and the last member is a judge, chosen by the
judges of the circuit. See Ala. Const. amend. 328, § 6.14;
see also Ala. Const. amends. 83 and 110 (Jefferson County).
In Georgia, a nine-member commission is charged with filling
interim vacancies on all state courts save the supreme
court. The governor appoints five members of the
commission, three lawyers and two non-lawyers. The
lieutenant governor and the speaker of the house of
representatives each appoint one non-lawyer member, and two
members serve ex officio. See Ga. Const. art. VI, § VII,
para. III; Executive Order, Judicial Nominating Commission
(Feb. 27, 1995) (establishing commission for Governor Zell
Miller's term in office). Florida has nine-member
commissions to fill vacancies in all levels of the state
judiciary. Three members are appointed by the governor,
three are appointed by the Florida Bar, and three are
elected by majority vote of other six. See Fla. Const. art.
"Missouri Plan," a state's voters have a choice in the composition
of the nominating commission because, in large part, those who
appoint the commissioners are elected officials, such as the
governor or the members of the legislature. Here, by way of
contrast, Alabama's voters will have essentially no choice. Two
members of the commission will be hand-picked by the plaintiff's
lawyers from the class White represents; no commission members
will be chosen by elected representatives. The commission will be
overseen by a life-tenured federal district judge who retains the
power to fashion "appropriate relief" in the event the scheme fails
to ensure the presence of at least two representatives of the
plaintiff class on each of Alabama's appellate benches. See supra
note 23. The only actor in the court's plan who is accountable to
the voters is the Governor, and his hands will be tied by the
court's judgment.41 Dissatisfied voters, black or white, will have
no recourse if the candidates the commission selects are
unsatisfactory; thus, the commission will have a license to select
its nominees with impunity.
Accordingly, we conclude that an appointment procedure such as
the one the district court would implement in this case is a remedy
foreclosed by the Voting Rights Act.42 The United States Department
5, § 11; Fla.Stat. § 43.29.
41
There is no provision in the judgment that would give the
Governor the authority to reject a slate proposed by the
nominating commission on the ground that the nominees possessed
nothing more than the bare legal qualifications for judicial
office.
42
Because we dispose of the district court's judgment on the
ground that it violates the Voting Rights Act, we need not, and
indeed should not, discuss whether the judgment violates the
of Justice, appearing as amicus curiae, conceded this point in oral
argument, but contended that because the district court's final
judgment is a "consent decree," the fact that the remedy it
provides is not authorized by the Voting Rights Act should not
concern us. We address this argument, and reject it, in part IV,
infra.
B.
The goal the White class seeks to achieve in this case is
proportional representation on Alabama's appellate courts.43 Both
Equal Protection Clause by setting aside race-based seats on
Alabama's appellate courts. See Ashwander v. Tennessee Valley
Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936)
(Brandeis, J., concurring) ("The Court will not pass upon a
constitutional question although properly presented by the
record, if there is also present some other ground upon which the
case may be disposed of.").
43
Moreover, the White class seeks to achieve this goal
without paying the price a minority might be expected to pay to
attain proportional representation. That is, the typical remedy
for racial vote dilution yielded by at-large voting in a
multi-member district is to divide the district into
single-member districts if the plaintiff minority is sufficiently
cohesive and compact to comprise a majority in one or more
single-member districts. See Gingles, 478 U.S. at 50, 106 S.Ct.
at 2766. In such a case, the minority, having been cabined in
this manner, necessarily loses influence in the other districts.
See Nipper v. Smith, 39 F.3d 1494, 1543 (11th Cir.1994) (en
banc), cert. denied, --- U.S. ----, 115 S.Ct. 1795, 131 L.Ed.2d
723 (1995); League of United Latin American Citizens v.
Clements, 999 F.2d 831, 873 (5th Cir.1993) (en banc).
In this case, the trade-off described above does not
occur; rather, in choosing the members of the appellate
bench, the influence of the minority voters is
disproportionately enhanced at the expense of the majority.
That is, the minority is given the right to fill by
appointment two seats on each of the appellate courts while
at the same time maintaining its admittedly "significant
influence" in the choice of those selected through the
ballot box. White, 867 F.Supp. at 1535. According to
members of the White class, who urged the court to approve
the settlement, "the proposed settlement is superior to
single-member districts for appellate courts because
the original and modified settlement proposals presented to the
district court make this quite clear. Section 2 of the Voting
Rights Act states, however, that "nothing in this section
establishes a right to have members of a protected class elected in
numbers equal to their proportion in the population." 42 U.S.C. §
1973(b); see Thornburg v. Gingles, 478 U.S. 30, 84, 106 S.Ct.
2752, 2784, 92 L.Ed.2d 25 (1986) (O'Connor, J., concurring).
Notwithstanding this statutory caveat, the district court used the
attainment of proportionality as a justification for entering the
judgment at hand. The following paragraph from the court's opinion
illustrates this point:
[T]he court notes that blacks comprise approximately 25% of
the population of Alabama and 23% of the voting age
population. For the purposes of this inquiry, the court
chooses the more conservative figure of 23% for the relevant
pool. In affirmative action terms, this means that absent
voting discrimination it would be expected that around 23% of
judges would be minority-preferred candidates. The proposed
settlement contemplates relief reaching two seats on each of
the seven-member appeals courts or 28% of the seats and two
seats on the nine-member supreme court or 22% of the seats.
The court finds that the number of judgeships reached by the
proposed settlement as a percentage of the seats on each
appellate court is comparable to the black percentage of the
voting age population in Alabama.
White, 867 F.Supp. at 1562. This statement speaks for itself—in
approving the settlement, the district court ignored Congress's
admonition that the Voting Rights Act is not be used as a vehicle
to establish proportional representation.
at-large seats allow blacks to have a significant influence
on all appellate judges, rather than have their dominance
limited to a small number of districts with little presence
in the majority of districts." Id. (citing affidavits of
Richard Arrington, Jr., mayor of Birmingham, Alabama, and
Joe L. Reed, chairman of the Alabama Democratic Conference
(a statewide black political organization that is an arm of
the Alabama Democratic Party)).
III.
Putting aside the question whether the district court's
remedy is cognizable under section 2, we conclude that the district
court, in fashioning its remedy, lacked the authority to require
Alabama to increase the size of its appellate courts. We base our
conclusion that the court lacked such power on Nipper v. Smith,
where we said that "federal courts may not mandate as a section 2
remedy that a state or political subdivision alter the size of its
elected bodies." Nipper v. Smith, 39 F.3d 1494, 1532 (11th
Cir.1994) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 1795,
131 L.Ed.2d 723 (1995).44
We also draw, as we did in Nipper, on the Supreme Court's
decision in Holder v. Hall, --- U.S. ----, 114 S.Ct. 2581, 129
L.Ed.2d 687 (1994). In Holder, black plaintiffs proposed as a
remedy for racial vote dilution that the court increase the
membership of a county commission from one person to six, a
chairman to be elected at large and five members to be elected from
single-member districts. According to the plaintiffs, the black
voting population was sufficiently cohesive and compact to
constitute a majority in one of the suggested single-member
districts.
The Supreme Court rejected the plaintiffs' proposal. The
Court held that the plaintiffs had no case under section 2 because
there was no objectively reasonable "benchmark" with which to
compare the existing scheme in order to determine whether racial
44
Nipper was decided in December of 1994, and thus the
district court did not have the benefit of Nipper 's holding when
it decided this case.
vote dilution was actually taking place. "In order for an
electoral system to dilute a minority group's voting power, there
must be an alternative system that would provide greater electoral
opportunity to minority voters." Id. at ----, 114 S.Ct. at 2589
(O'Connor, J., concurring). When comparing the sizes of elected
bodies, there are many possible alternatives, but no "principled
reason why one size should be picked over another as the benchmark
for comparison." Id. at ----, 114 S.Ct. at 2586 (plurality
opinion) (emphasis added). It is not the absence of a benchmark
that is the problem when evaluating the size of an elected body;
the difficulty is that a court cannot reasonably choose one
benchmark over another.45
This difficulty is presented also by this case. The district
court constructed a benchmark by using proportional representation.
As noted part II.B., supra, the court observed that blacks comprise
23% of the voting age population in Alabama; accordingly, 23% of
the judges should be minority-preferred candidates. White, 867
F.Supp. at 1562. Having drawn this conclusion, the court asked, in
effect: How large must the Supreme Court and the courts of appeals
be to ensure that minority-preferred candidates occupy that
percentage of the courts' seats? The answer is a Supreme Court
with nine, ten, or eleven seats and courts of appeals with seven
45
The question before the Court in Holder was one of
statutory interpretation: whether increasing the size of the
Bleckley County Commission was permissible under § 2. The Court
did not find the answer to this question in the language of the
statute or its legislative history; it found the answer by
considering the difficulty a district court would encounter in
inferring a reliable benchmark from the circumstantial evidence
before it.
seats each.
The problem with these benchmarks is that they are not
principled. Rather, they are based on proportional representation,
which, under the Voting Rights Act, is impermissible. See supra
part II.B. Once these benchmarks are eliminated, one must engage
in sheer speculation to arrive at an appropriate benchmark, or
size, for each court. With respect to the courts of appeals, for
example, one might argue that six judges would suffice; another
might opt for seven or eight.46 Holder precludes this sort of
speculation.
IV.
As our discussion in Parts II and III makes clear, the remedy
the district court prescribed in this case is foreclosed by the
Voting Rights Act and by precedent. The Department of Justice
concedes this point,47 but contends, as does White, that the
district court's final judgment is a "consent decree," and that, as
such, the judgment could provide relief beyond that authorized by
the Act. We are not persuaded.
A.
First, the district court's final judgment is not a consent
decree. It is a final judgment, because it disposes of all of the
46
As noted in part I.E., supra, the plaintiffs' own experts
testified at the August 31, 1994, hearing that the vote dilution
they found in the at-large scheme could be remedied by having
Alabama's appellate judges elected from single-member districts,
without increasing the size of the courts. Hence, it was
unnecessary for the court to increase the size of the appellate
courts in order to grant the plaintiffs relief.
47
The White class does not join in the Department's
concession.
claims and defenses of all of the parties in the case. See 28
U.S.C. § 1291; Andrews v. United States, 373 U.S. 334, 83 S.Ct.
1236, 10 L.Ed.2d 383 (1963). But it is not a final consent decree,
because not all of the parties consented to its entry. White, the
Attorney General, the Department of Justice, and the district court
refer to the final judgment as a "consent decree."48 That, however,
does not make it one.
Here, the court entered a final judgment that rejected the
relief sought by some parties, Bradford and Montiel,49 and
48
The district court, in its memorandum opinion, appears to
treat its final judgment as a consent decree. Nowhere in its
opinion, however, does the court explain how a consent decree can
be entered without the consent of all parties.
49
As noted in part I.C., supra, Bradford became a party on
March 4, 1994, when the district court granted him leave to
intervene as a plaintiff and to file a complaint. In that
complaint, Bradford alleged that he represented a class
consisting of all of Alabama's black voters, and asked the court
to recognize him as the representative of such class. For
relief, Bradford sought the election of Alabama's appellate
judges from single-member districts. In contrast, White, in the
settlement proposal he and the Attorney General had submitted to
the court, sought the remedy the district court eventually
imposed. Thus, the district court was faced with one plaintiff,
Bradford, seeking one form of relief, and another plaintiff,
White, seeking a dramatically different, and totally
inconsistent, remedy. The court could have solved the dilemma by
dividing the plaintiff class of black voters into two subclasses:
one represented by White, the other by Bradford. The court,
however, did nothing. Consequently, we are left with two
plaintiffs seeking mutually exclusive forms of relief.
Bradford, because he is a black voter, is by definition
a member of the White class. No one has contended, however,
that Bradford is thereby foreclosed from objecting to the
relief White seeks or from pursuing an alternative remedy
for the alleged vote dilution. Rather, White and the
Attorney General, apparently deferring to the district
court's decision to grant Bradford plaintiff status by
permitting him to intervene and to file a complaint, have
treated Bradford as an independent party in this litigation.
Montiel became a party on May 17, 1994, and was
incorporated the relief proposed jointly by other parties, White
and the State. In this circuit, a decree that provides a remedy
agreed to by some, but not all, of the parties cannot affect the
rights of a dissenting party. United States v. City of Miami, 664
50
F.2d 435, 442 (5th Cir.1981) (en banc) (opinion of Rubin, J.).
Here, Bradford and Montiel are non-consenting dissenting parties.51
Indeed, they vigorously objected to the remedy White and the
certified to represent a plaintiff class of Republican
voters. In addition to challenging the at-large election
scheme, Montiel alleged that the White-Attorney General
proposal, if implemented, would disenfranchise Alabama's
republican voters. Like Bradford, Montiel sought the
creation of single-member districts.
50
City of Miami, though decided after the split of the
former Fifth Circuit, is part of the law of this circuit. See,
e.g., Barfus v. City of Miami, 936 F.2d 1182, 1184 (11th
Cir.1991).
51
Nor did Boehm, who had intervened in the case as a
defendant representing a class of non-black voters, consent to
the entry of the judgment. Boehm contended that the current
at-large system for electing appellate judges was lawful and
therefore should be maintained. Thus, his position was at odds
with that taken by White and the Attorney General.
After White and the Attorney General made their Rule 68
filing on April 15, 1994, and in advance of the July 29
fairness hearing, Boehm objected to their settlement
proposal on the ground that the composition of the
nominating commission ensured that only blacks would be
appointed through the nominating process. According to
Boehm, excluding "members of the "Boehm Class' [non-black
voters] from the Judicial Nominating Commission not only
violates the rights of the "Boehm Class' by not allowing
them to participate in the selection of potential candidates
for these appellate judges positions, but also prevents the
"Boehm Class' from being able to adequately monitor the ...
Commission for any discriminatory action they may take...."
Record vol. 6, no. 128, at 5-6.
Boehm has not appealed the district court's final
judgment. During the oral argument of this case on appeal,
his attorney announced that Boehm had no objection to the
implementation of the judgment.
Attorney General proposed because, among other things, it would
deprive them of their right to vote for judicial officers.
B.
Assuming, for sake of argument, that the district court's
judgment is a consent decree, we address the question whether, for
that reason, the court had the authority to provide a remedy not
authorized by the Voting Rights Act. White and the Department of
Justice cite only one case in support of the proposition that a
district court, in entering a consent decree, may provide relief
beyond that authorized by Congress. See Local No. 93,
International Ass'n of Firefighters v. City of Cleveland, 478 U.S.
501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). That case, however, is
inapposite.
In Local No. 93, the plaintiffs, an association of black and
Hispanic firefighters employed by Cleveland's fire department,
alleged that, in violation of Title VII of the Civil Rights Act of
1964, various city officials had discriminated against its members
on the basis of race and national origin in hiring, assigning, and
promoting firefighters. The city and the association entered into
a settlement which, if approved by the court, would provide, among
other things, prospective relief to unknown persons who had not
suffered the alleged discrimination. The firefighters' union
intervened in the case for the purpose of objecting to the
settlement. It contended that Title VII barred the court from
granting relief that benefitted individuals who were not actual
victims of the discriminatory practices. See Civil Rights Act of
1964, Pub.L. No. 88-352, § 706(g)(2)(a), 78 Stat. 241, 261, 42
U.S.C. § 2000e-5(g)(2)(a) (1988 & Supp. V 1993).
The district court incorporated the settlement into a consent
decree, and the union appealed. The Sixth Circuit affirmed,
Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479 (6th
Cir.1985), and the Supreme Court granted certiorari, 474 U.S. 816,
106 S.Ct. 59, 88 L.Ed.2d 48 (1985), to answer the question:
"whether § 706(g) of Title VII ... precludes the entry of a consent
decree which provides relief that may benefit individuals who were
not the actual victims of the defendant's discriminatory
practices." Local No. 93, 478 U.S. at 504, 106 S.Ct. at 3066.
Drawing on the language of section 706(g) and Title VII's
legislative history, the Court concluded that the provision did not
apply to the relief the district court granted. Id. at 515, 106
S.Ct. at 3071. Moreover, the relief appeared to be in keeping with
Title VII's remedial objectives and thus within statutory bounds.
At the same time, the Court recognized that "the parties may [not]
agree to take action that conflicts with or violates the statute
upon which the complaint [is] based." Id. at 526, 106 S.Ct. at
3077.52 In the context of the case before it, the implementation
of the agreement might deprive firefighters not before the court of
their right not to be subjected to reverse racial discrimination in
violation of Title VII or the Fourteenth Amendment. In the event
of such violation, the fact that the decree had been affirmed would
52
In cases where the Supreme Court has found that a consent
decree violates the statute under which the relief is granted,
the Court has not hesitated to set aside the decree. See
Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104
S.Ct. 2576, 81 L.Ed.2d 483 (1984); System Fed'n No. 91, Railway
Employes' Dep't v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d
349 (1961).
not render it "immune from attack." Id.
In the case at hand, unlike in Local No. 93, the injury is
immediate. The district court's decree, if implemented, will
directly injure parties now before the court by depriving them of
their right to vote. Hence, there is no cause for this court to
defer consideration of the question, which we reach in part II,
supra, whether the decree's remedy is foreclosed by the Voting
Rights Act.53
V.
We dismiss the appeal in No. 94-7081. See supra note 34. In
No. 94-7024, we vacate the district court's judgment and remand the
case to the three-judge court for further proceedings. We remand
the case to the three-judge court, rather than the single-judge
district court, because this case is pending before the three-judge
53
The Court's opinion in Local No. 93 also informs our
discussion in part IV.A, supra. One of the union's arguments was
that the consent decree was invalid because it was entered
without the union's consent. The Court rejected that argument
because the union had presented no claim for relief to the
district court; that is, it had no cause of action in its own
right and it could not prosecute reverse discrimination claims
(of its members) that had not yet arisen. The union's sole
reason for intervening in the case, therefore, was to protest the
settlement.
The Court indicated that, had the settlement affected
the union's rights, the decree could not have been entered
without its consent. As the Court observed:
[P]arties who choose to resolve litigation through
settlement may not dispose of the claims of a third
party ... without that party's agreement. A court's
approval of a consent decree between some of the
parties therefore cannot dispose of the valid claims of
nonconsenting intervenors; if properly raised, these
claims remain and may be litigated by the intervenor.
Local No. 93, 478 U.S. at 529, 106 S.Ct. at 3079 (citations
omitted).
court. As indicated in part I.D. and note 25, supra, that court
stayed further proceedings in the case solely to permit the
district court, proceeding under section 2 of the Voting Rights
Act, to entertain White's and the Attorney General's settlement
agreement. Now that their agreement has been set aside and the
state's answer, which denies liability under both section 2 and
section 5 of the Act (as well as the Equal Protection Clause),
stands reinstated in full, see part I.B. and notes 14 and 15,
supra. The case is in the posture it occupied when the three-judge
court stayed its hand. Hence, given the state's denial of
liability, the first claim to be addressed—the claim before the
three-judge court—is White's section 5 claim: whether the
legislative enactments cited in part I.A., supra, which increased
the Supreme Court from seven to nine justices, divided the Court of
Appeals into the courts of criminal and civil appeals, and then
increased their respective sizes from three to five judges—are
invalid for want of section 5 preclearance by the United States
Department of Justice.54
54
Our disposition of the appeal in No. 94-7024 renders
unnecessary our consideration of the question whether the remedy
the district court fashioned, if implemented, would create a
racial quota system for the selection of Alabama's appellate
judges. It is also unnecessary for us to consider whether,
consistent with Alabama's separation of powers doctrine and the
state's constitution, the Attorney General had the authority
under Alabama law to bind the legislature, the Governor, and the
people of Alabama (in whom the power to amend the state's
constitution resides) to the agreement he reached with White.
See supra notes 1, 2, 6 and 29. Nor is it necessary for us to
decide the related question whether, in the interest of comity,
the district court, using Fed.R.Civ.P. 19 and 23, should have
made the branches of the Alabama legislature and the Governor
parties-defendant in this highly sensitive case. See 7A Wright,
Miller & Kane, Federal Practice and Procedure § 1770.
SO ORDERED.
BLACK, Circuit Judge, specially concurring:
I concur in the conclusion, stated in section IV.A of the
majority opinion, that there was no valid consent decree upon which
the district court could have entered its judgment. I therefore
concur in the result as well. Since the district court's judgment
must be vacated because it was premised on an invalid consent
decree, our analysis should end at this point.
The three-judge court granted Bradford and Montiel's motions
to intervene in this suit as party plaintiffs, and the parties have
not appealed these rulings. Once a party intervenes, he becomes a
full participant and is entitled to have his claims litigated.
Alvarado v. J.C. Penney Co., 997 F.2d 803, 805 (10th Cir.1993); 7C
Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal
Practice and Procedure § 1920 (1986). The original parties to a
suit may not, through a purported consent decree settling the
claims between them, stipulate away the rights of an intervening
party without his approval. Local Number 93, Int'l Ass'n of
Firefighters v. City of Cleveland, 478 U.S. 501, 529, 106 S.Ct.
3063, 3079, 92 L.Ed.2d 405 (1986) (citing Wheeler v. American Home
Products Corp., 563 F.2d 1233, 1237-38 (5th Cir.1977)); 3B James
W. Moore, Moore's Federal Practice ¶ 24.16[6] (2d ed. 1995). It
follows that a consent decree that compromises a non-consenting
party's claims is invalid to the extent that it does so. See Local
Number 93, 478 U.S. at 529, 106 S.Ct. at 3079; United States v.
City of Miami, Fla., 664 F.2d 435, 442 (5th Cir.1981) (en banc)
(Rubin, J.); League of United Latin American Citizens v. Clements,
999 F.2d 831, 846 (5th Cir.1993) (en banc), cert. denied, --- U.S.
----, 114 S.Ct. 878, 127 L.Ed.2d 74 (1994).
In the case before us, the settlement reached by the White
class and the State of Alabama resolved the claims of Bradford and
Montiel contrary to their interests and without their consent.
Bradford and Montiel, however, were entitled as party plaintiffs to
fully litigate their claims. They did not receive this
opportunity. The district court believed, erroneously, it had
before it a valid consent decree; and the court entered its final
judgment based on the purported consent decree. Since the consent
decree was invalid1, the court could not enter a final consent
judgment and we need not consider the substance of the invalid
judgment.
1
The decree would also be invalid if, as maintained by the
appellants, the state's attorney general did not have authority
to negotiate the decree and bind the Alabama legislature,
governor and populace to a plan that would alter state
constitutional and statutory provisions.