Brief for Appellee — Harris County Commissioners Court v. Moore

IN THE

Supreme Court of the United States

October Term, 1973

NO. 73-1475

HARRIS COUNTY COMMISSIONERS COURT,

ET AL, Appellants

\

RICHARD E. MOORE. ET AL. A ppe llees

On Appeal From The United States District Court

For The Southern District of Texas,

Houston Division

BRIEF FOR APPELLEE GENE ZABOROSKI

C. ANTHONY Fritoux, Jr.

GERALD A. WooLt

1215 First National Lite Bldg

Houston. Texas 77002

(713) 227-4141

~-— /

Attorneys hor Appellee ,

Gene Zuboroski

- Se eee

Aipha Lew Brief Co., One Main Plaza, No. 1 Matin S:.. How ton, Texas 77

a ee ee ee

ARGUMENT:

II. REDISTRICTING IN MID-TERM NOT A NE-

CESSITY

ee

Ill. NO COMPELLING STATE INTEREST EXISTS

by THE DENIAL OF CONSTITUTION:

eeeeereeeeeeeeeeene

pte patel STATE INTER-

EST TO UNEQUAL PROTECTION BE-

V. THE OF THE PRECINCT RESIDEN-

OF THE PEACE AND CON-

WOULD HAVE BEEN AVOIDED IF

APPELLANTS HAD PRESERVED THE CONSTI-

VI. THERE IS NO BASIS FOR APPLICATION OF

Martin, 375 U.S. 399 (1964) ........66.0005

71-1364 (E.D. La. 1971):

390 US. 474 (1

v. Arron, 358 U ay i eeiicencesecet

on eemcemmadiemeahn (E.D. La.

Page

17

22

) 12,13, 14, -

21

22

TI

CASES Page

Ellis v. Mayor of Baltimore, 234 F Supp. 945 (D. Md. 1964)

aff'd. remanded 352 F.2d 123 (4th Cir., 1965)...... 14

Garvin v. Rosenau, 455 F.2d 233 (6th Cir. 1972)......... 21

Gary v. Sanders, 372 US. 368 (1963) ...........ceceees 13,14

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ............ 16,17, 18

Hunter v. Erickson, 393 U.S. 385 (1969) ........060000: 19

Hyden v. Baker, 286 F Supp. 475 (M.D. Tenn. 1968)..... 14

Kaelin v. Borden, 344 F Supp. 598 (E.D. Pa. 1971)...... 14

Louisiana v. United States, 380 U.S. 145 (1965) ......... 17

Loving v. Virginia, 388 US. 1 (1967) .........6.ccceens 19

Martinoich v. Dean, 256 F.Supp. 612 (S.D. Miss. 1966)... 14

Native American Church of Navajoland v. Arizona Corp.

Commission, 329 F.Supp. 907 (D. Ariz. 1971) aff'd. 405

BE, GES GHSSED cocecccccccccescccceocccccoscovcesse 22

Reynolds v. Sims, 377 U.S. 533 (1964) .........0-05. 13, 14, 15,17

Roman v. Sincock, 377 U.S. 695 (1964) ........6ccecnues 15

Sailors v. Kent Board of Education, 387 U.S. 105 (1967)... 13,16

Sims v. Baggett, 247 F Supp. 96 (M.D. Ala. 1965)........ 17,18

Standard Computing Scale Co. v. Farrell, 249 US. 571

GEE cccccccccceccesccescosccesesseosoecosecoecese 17

Strickland v. Burns, 256 F Supp. 824 (M.D. Tenn. 1966).. 14

United States v. Mississippi, 380 US. 128 (1965) ........ 17

Whitcomb v. Chavis, 403 U.S. 124 (1971) ..... 6660s cue. 17,18

Wisconsin v. Constantineau, 400 US. 433 (1971) ......... 22

Zwiekler v. Koota, 389 U.S. 241 (1969) ...... 00000 cceees 21

UNITED STATES CONSTITUTION

SRD, Be, o coccccccceeseccesoocccecoocesceesese 5

BE BEES, cccccccecccccoecceecescoesesoeeceses 5

Fourteenth Amendment ...... 6.6.66 ccc cence ewnunee 5, 18,19

Dee RED occ cccccccccccccsccccoscoccesoces 5,17

UNITED STATES STATUTES

28 US.C.A. Sections 1343, 2201 and 2281 ...........6665 5

SE BOD, Be Be occcccccecesesecccecoscceceses 6

42 US.CA. Sections 1983 amd 1985(3) ..... 66.66 cc cue 5

TEXAS CONSTITUTION

Article V, Section 18 «2... 6666 ccc cece eee cnn n ee neeenes 5 16, 23

TEXAS CIVIL STATUTES

Article 23514 Vernon's Annotated Texas Civil Statutes (Acts

1965, 59th Tex. Leg., p. 1523, ch. 664, Sec. 1 effected Aug.

BD, BOER) ccccccccccccccccccccecccesess cited throughout brief

October Term, 1973

NO. 73-1475

HARRIS COUNTY COMMISSIONERS COURT,

ET AL, Appellants

v.

RICHARD E. MOORE, ET AL, Appellees

On Appeal From The United States District Court

For The Southern District of Texas,

2

OPINIONS BELOW

On January 30, 1974, the same day on which the

Three-Judge United States District Court for the Southern

District of Texas, Houston Division, heard oral argument,

they issued the order appealed herein. A written opinion

was filed by the three-judge District Court on February 8,

1974. Both the judgment order and opinion of the three-

judge District Court are as yet unreported and a copy

of the judgment order and of the opinion are appended

hereto as Exhibits “A” and “B”, respectively.

JURISDICTION

The judgment of the three-judge District Court was

filed January 30, 1974. On February 4, 1974, Mr. Justice

Powell stayed the execution and enforcement of the Dis-

trict Court judgment pending further order of the Supreme

Court. On February 8, 1974, the three-judge District

Court filed its written opinion. On February 19, 1974,

the Supreme Court denied Appellee’s Motion to vacate

the Stay Order.

Appellants’ jurisdictional statement was filed April 3,

1974 and thereafter on May 3, 1974, Appellee filed his

Motion to Dismiss. Probable jurisdiction was noted by

the Supreme Court on June 3, 1974.

This appeal is one from the judgment of a three-judge

United States District Court for the Southern District of

Texas, Houston Division, entering a declaratory judgment

and granting a permanent injunction restraining the en-

forcement, operation and execution of a state statute.

3

STATUTE INVOLVED

Article 235142, Vernon's Annotated Texas Civil Stat-

utes (Acts 1965, 59th Tex. Leg., p. 1523, ch. 664, sec. 1,

eff. August 30, 1965), provided as of the dates involved

in this case, and presently so provides:

“Art. 2351¥%. Change in boundaries of commis-

sioners precincts and justice of the peace precincts

(a) Whenever the Commissioners Court changes

the boundaries of commissioners precincts or of

justice precincts, it may specify in its order a future

date, not later than the first day of January following

the next general election, on which the changes shall

become effective. If an election for any precinct

office is held before the effective date of the order,

the office shall be filled at the election by the voters

of the precinct as it will exist on the effective date

(b) When boundaries of commissioners precincts

are changed, the terms of office of the commissioner

then in office shall not be affected by such change,

and each commissioner shall be entitled to serve

for the remainder of the term to which he was elected

4

sides within a precinct as so changed, he shall

continue in office as justice or constable of that pre-

cinct for the remainder of the term to which he was

elected or appointed. If more than one justice or

constable resides within a precinct as so changed,

or if none resides therein, the office shall become

vacant and the vacancy shall be filled as other vacan-

cies; provided, however, that in precincts having two

justices, if two reside therein, both shall continue in

office, and if more than two reside therein, both

offices shall become vacant.”

Added by Acts 1965, 59th Leg., p. 1523, ch. 664,

Sec. 1, eff. Aug. 30, 1965.

QUESTION PRESENTED

Whether Article 235112(c), Vernon’s Annotated Texas

Civil Statute, is facially unconstitutional?

STATEMENT

Appellee Gene Zaboroski, a white Republican candi-

date for the office of Justice of Peace of Precinct No. 6

of Harris County, Texas, was chosen by the voters of

that precinct in the general elections of November, 1970.

As provided for by statute, his term of office commenced

on January 1, 1971 and his term of office was to expire

at midnight on the 3ist day of December, 1974.

However, on June 30, 1973, the Harris County Com-

missioners Court, a constitutionally created body respon-

sible for, among other duties, the supervision, control

and administration of certain voting laws enacted by the

Texas Legislature, passed a redistricting order reconstitut-

ing certain Justices of the Peace and Constable Precincts,

including Precinct No. 6. The redistricting order was ef-

5

fected through the power granted to the Commissioners

Court pursuant to the mandates of Article 5, Section 18,

Texas Constitution and Article 235142, Texas Revised

Civil Statutes Annotated (1971). As intended and ef-

fected, the ordered redistricting created new precincts pri-

marily on the basis of racial, ethnic and political lines,

without regard to the mandates of the one-man, one-vote

rule. The publicly stated purposes for the redistricting

of the Justice of the Peace and Constable precincts

were to eliminate the gross population disparity existing

in such precincts; to make the offices more convenient

to ail the people of the county; and to draw new pre-

cinct boundaries along ethnic or racial lines so as to

assure the election of minorities to the offices of Justices

of the Peace and Constables in the future. The main con-

sideration, as contended by Appellants, for redistricting

was that the gross population disparity of the various

precincts created a compelling state interest to bring about

redistricting of the said Justices of the Peace and Con-

stable precincts.

As a direct result of the actions of Appellants, in

passing a redistricting bill by a vote of 3 to 2, they effected

the removal of Republican Appellee Zaboroski from his

publicly elected office, Justice of the Peace of Precinct

No. 6, Harris County, Texas.

This suit was brought by Appellee Gene Zaboroski, on

his own behalf, and on behalf of all white voters in Harris

County, Texas similarly situated, to vindicate the rights

guaranteed to them by the United States Constitution,

Amendments Five, Nine, Fourteen and Fifteen, and

through certain Federal Civil Rights statutes, 42 U.S.C.

Sections 1983 and 1985(3) and under 28 U.S.C. Sec-

tions 1343, 2201 and 2281.

6

All the parties to the cause of action filed agreed to

stipulations of evidence concerning said suit and the mat-

ter was heard on oral arguments only by a three-judge

District Court on January 30, 1974. On that date the

Three-Judge District Court for the Southern District of

Texas, Houston Division, issued its judgment order declar-

ing as follows: (1) This Court has jurisdiction under

Title 28, U.S.C.A., $2281. (2) The Texas statute Article

235114, Vernon’s Annotated Civil Statute is facially un-

constitutional. (3) The order of the Commissioners

Court of Harris County, Texas, of June 28, 1973, com-

plained of herein issued pursuant thereto is therefore per-

manently enjoined. (See Exhibit A attached hereto.)

Approximately one month later on February 8, 1974,

the District Court filed its written opinion stating:

“Insofar as Article 235142 operates to truncate the

term of a duly elected public official upon the cir-

cumstance that a mere convenience redistricting places

him in a district with others, it invidiously and irra-

tionally discriminates between him and others not so

effected and between the effect of the votes of those

who voted or were entitled to vote in his election and

voters whose franchise was not so bobbed. No com-

pelling interest was here served by such discrimination.

Certainly it was not necessary to effect redistricting in

midterm or, if that were thought pressing, it was not

compelling that the office be declared vacant as a

result. Indeed, the analagous section pertaining to

county commissioners, Article 235242 (c), expressly

provides that the term of office of a county commis-

sioner is not to be effected by redistricting, even

though its effect may be to place his residence out-

side the precinct to which he was elected.”

“The duly elected justice of the peace and constables,

Plaintiffs herein, are entitled to serve the terms to

which they were elected.” (See Exhibit B.)

7

Additionally, the Court after hearing all of the evidence,

stipulations and arguments of counsel, found that no com-

pelling state interest is served to justify such effects of

the statute.

ARGUMENT

I. INTRODUCTION.

The question raised by the findings and order of the

three-judge District Court is a relatively simple one and

is confined to the single question, “Is Article 2351% (c)

ft. cially unconstitutional?”

The opinion of the three-judge District Court held that

there was no compelling state interest served by the acts

of the County Commissioners which “operates to truncate

the term of a duly elected official upon the circumstances

that mere convenience redistricting places him in a district

with others,” and that “it invidiously and irrationally dis-

criminates between him [Justice of the Peace] and others

not so affected and between the effect of the votes of

those who voted or those who were entitled to vote in

this election and voters whose franchise were not so

bobbed”. (Exhibit B at 34). Appellants in their brief

cite several state interests which allegedly were served

by the redistricting of the Justice of the Peace and Con-

stible precincts and attempt to argue that such interests

were compelling state interests and thereby legitimize

Appellants’ actions if Appellee or the Court cannot show

an element of irtentional or purposeful discrimination

against those Justices of the Peace and Constables re-

moved from office.

II. REDISTRICTING IN MID-TERM WAS NOT A

NECESSITY.

Before Appellee would show this Honorable Court how

shallow and meaningless are the compelling state interests

offered by Appellants as justification for their unconstitu-

tional acts, Appellee would like to put to rest, once and

for all, Appellants’ claim that, “no redistricting could ever

be effected which would not cut short the term of office

of at least some of the offices in question.” (App. Brief at

27)."

Obviously this statement is not true. The fact is that

there are several ways in which the redistricting com-

plained of herein could have been accomplished without

offending the constitutional rights of any of the Appellees.

However, in light of their actions, it is not surprising that

Appellants argue the necessity of effecting redistricting in

mid-term,’ because they never made a good-faith effort

to protect the constitutional rights of those office holders

and voters who were disenfranchised by this redistricting.

This lack of good-faith on behalf of the Harris County

Commissioners Court evidenced by not effecting a re-

districting plan for Justices of the Peace and Constables

which would not have bobbed the rights of office holders

or voters was so glaring that it prompted the Honorable

Judge John V. Singleton*® to question Appellants’ motives

in ordering the redistricting:

1. App. Brief references are to Appellants’ Brief on the Merits

filed July 18, 1974.

2. App. Brief at 19.

3. The three-judge District Court was composed of the Honorable

Thomas Gibbs Gee, Fifth Circuit Judge, the Honorable John V.

Singleton, Jr. and the Honorable Carl O. Bue, District Judges from

the Southern District of Texas.

9

“Can you think of any other incident in the entire

spectrum of our government where any elected post

is given that of unlimited discretion over another

elected official

“Can you think of any area in our entire system of

government where one body is given the unlimited

discretionary power to remove from office another

elected official?’”*

This lack of good-faith and insensitiveness to the needs

of the voters of Harris County was displayed by the

clandestine method in which the redistricting plan was

presented to the Commissioners Court for approval. Com-

missioner Robert Y. Eckels testified that he was not aware

of the “Bass plan” until the morning it was presented for

a vote. (Deposition of Robert Y. Eckels at 30, 31).

When questioned as to the reason behind an immediate

implementation of the redistricting plan, the only justifi-

cation was, “that it needed to be done now, as far away

from the county elections as possible, so the dust could

settle and not have controversy. . . .” (Deposition of

Robert Y. Eckels at 18). The reason Appellants wanted

the “dust to settle” and implemented the redistricting in

mid-term was to gain the opportunity to fill those vacancies

created by the redistricting with political favorites. Albeit

those appointees were to include several members of

minorities whose participation in County government was

desperately wanting, it is the manner and method in

which these admirable goals were thrust upon the un-

suspecting elected office holders and their constituents

that offends Appellees’ constitutional rights.

Nevertheless, assume arguendo that there were no “bad

motives” on behalf of the Harris County Commissioners

a ee 6 eee © 1974 at 71-72; see also,

comments of the Honorable Judge Thomas Gibbs Gee at 60.

10

Court in ordering the redistricting to be effective in mid-

term, there still was a deprivation of Appellee’s constitu-

tional rights. First of all, if the Justices of the Peace and

Constable precincts had existed as they were for over

100 years, a few more months would not have caused

any irreparable harm to the residents of Harris County.

With this in mind, Appellants could have made the re-

districting effective at the end of the term of the present

encumbants. In this manner the elected Justices of the

Peace and Constables would have remained in their

elected offices until their respective constitutionally created

terms had expired. Then when the new Justices of the

Peace and Constables were elected they would have been

elected by the voters of the new Justices of the Peace

and Constable precincts.

There is really nothing novel about this idea in that

it was immediately brought to the attention of Appellants

during oral argument before the three-judge District Court

by the Honorable Judge Thomas Gibbs Gee.

“Counsel, you are not seriously arguing that this had

to be done, that the post had to be eliminated in

order to get more equal precincts, are you, because

that could have been avoided in many ways.”

“In the first place, the order might have been made

effective only at the end of the term of the then

present encumbant.

And when one examines Sections (a) and (b) of Article

2351% it is apparent that this course of action was

actually what the legislature intended when they adopted

language reading:

5. Transcript of proceedings January 30, 1974 at 54, 62.

11

“Whenever the Commissioners Court changes the

boundaries of commissioners precincts or of Justice

precincts, it may specify in its order a future date,

not later than the first day of January following the

next general election, on which the changes shall

become effective.”

. A person who has resided within the territory

embraced in the new boundaries for the length of

time required to be eligible to hold the office shall

not be rendered ineligible by virtue of the precincts

not having been in existence for that length of time.”

In fact, it is hard to imagine for what other purpose this

language could have been intended, especially when viewed

in light of the particular mention paid to County Com-

missioners remaining in office for the remainder of their

term even though the char se in boundaries may have

placed their residence outside the precinct for which they

were elected.’

A second procedure for redistricting by which Appel-

lants could have preserved and protected the constitutional

rights of all Appellees, would have been for the Harris

County Commissione*s Court to have drawn the new

Justice of the Peace and Constable precinct boundary

lines in such a manner that all of the Justices of the

Peace and Constables in office at the time of the redis-

tricting would have remained in office after the redis-

tricting; i.e., insure that nct more than one Justice of the

Peace or Constable resides within a precinct so changed.

This solution was also offered by Honorable Judge

Thomas Gibbs Gee during oral argument before the

three-judge District Court as an alternative to the plan

6. Article 2351%(a).

7. Article 23514%4(b).

12

adopted by the Harris County Commissioners Court and

now under scrutiny and Appellants evidently from the

tone of their brief* agree, at least in principle, that this

solution was theoretically possible. It does not seem that

it would have been unreasonable or even a difficult task

for Appellants to have added to their alleged states pur-

poses the additional requirement that no duly elected

official was to be removed from his office by the redis-

tricting. It is also striking that the only Republican Justice

of the Peace was arbitrarily removed and a Democrat

crony of the three-man majority of the Commissioners

Court appointed in his place; couple this with the careful

carving of Appellee Zaboroski’s voting precinct which

assures election of future Democratic candidates to the

new voting precinct, and the political motives become

blatantly apparent. It would also seem that any committee

with as diversed interest as the nine persons appointed

to formulate an acceptable redistricting plan would not

have been hampered in the slightest by such an additional

burden as protecting the constitutional rights of the voters

and elected officials. In this regard, it should be noted

that when this same committee was faced with the strict

requirements of the one-man, one-vote rule of Avery v.

Midland County, Texas, 390 U.S. 474, in redistricting

the four precincts of the County Commissioners, they did

so within the constitutional limitations required by this

Court. However, when operating without constitutional

guidelines and only in response to political patronage and

special interest groups to insure “minority participation”

this committee, dominated by County Commissioner Tom

Bass, designed and promoted a redistricting plan lacking

in equal protection, devoid of due process and reaking

of political opprobium.

8. App. Brief at 19.

13

Without belaboring the point, it would appear that the

contention of Appellant that “no redistricting could ever

be effected which would not cut short the term of office

of at least some of the offices in question” is totally with-

out merit, and therefore cannot justify or even support

a good-faith reliance upon effecting redistricting in mid-

term.

Ill. NO COMPELLING STATE INTEREST EXISTS

TO JUSTIFY THE DENIAL OF CONSTITU-

TIONAL RIGHTS TO APPELLEES.

In Reynolds v. Sims, 377 U.S. 533 (1964), the equal

protection clause was applied to the apportionment of

State legislatures. The Supreme Court held that every

qualified resident had the right to a ballot for election of

state legislators of equal weight to the vute of every other

resident, and that such right was infringed when legisla-

tors were elected from districts of substantially unequal

population.

The Supreme Court sought to clarify Reynolds, supra.

in Sailors v. Kent Board of Education, 387 U.S. 105

(1967) and to identify the circumstances in which ap

plication of the one-man one-vote rule was required. This

Court noted that there was no constitutional requirement

that state and local officers of non-legislative character

be chosen by election rather than appointment. How-

ever, the question of the applicability of the rule where

elections was required was left open and the Court held,

legislative or judicial—the requirements of Gray v. San-

ders and Reynolds v. Sims must be met,” 387 U.S. at

111.

14

This open question was substantially resolved by Avery

v. Midland County, supra, decided shortly thereafter:

“The question now before us is whether the Four-

teenth Amendment likewise forbids the election of

local government officials from districts of disparat

population. As also every court which addressed it-

self to this question, we hold it does.”

The one-man one-vote rule has been applied with great

breadth: It has been held to govern the election of

County Commissioners, Avery v. Midland County, supra;

Kaelin v. Borden, 344 F.Supp. 598 (E.D. Pa. 1971);

and Justices of the State Supreme Court and Courts of

Appeal, Gray v. Sanders, supra.

In Gray the Court held that the rule must be applied

to elected state executive and judicial officers as well as

to their legislative breathern.

“{OJnce the class of voters is chosen and their quali-

fications specified we see no constitutional way by

which equality of voting power may be abated.

372 U.S. 381. Accord, Ellis v. Mayor of Baltimore, 234

F.Supp. 945 (D. Md. 1964), aff'd. and remanded, 352

F.2d 123 (4th Cir. 1965); Hyden v. Baker, 286 F.Supp.

475 (M.D. Tenn. 1968); Martinoich v. Dean, 256 F.

Supp. 612 (S.D. Miss. 1966); Strickland v. Burns, 256

F.Supp. 824 (M.D. Tenn. 1966); all cases applying

Reynolds to local government.

While population is the starting point and the con-

9. Jd. at 478-479; see also the cases in which the highest State

Court ied the principles of Reynolds to units of local government

at 390 US. 479 n. 3.

15

trolling criteria for decision in apportionment controver-

sies, Reynolds, supra, mathematical exactness in dis-

tricting is neither possible nor required. For instance, in

Roman v. Sincock, 377 U.S. 695 (1964) the Supreme

Court stated that the proper judicial approach in ap

portionment cases was to determine whether under the

particular circumstances existing, there had been faithful

adherence to a plan of population-based representation,

with only such minor deviations as might occur in recog-

nizing certain factors that are free from any taint of ar-

bitrariness or discrimination.

What must be pointed out at this time is the fact that

the redistricting of June 28, 1973 was a voluntary, rather

than mandatory, court ordered plan. With one hand the

took to redistrict Justice of the Peace and Constable pre-

cincts, “for the convenience of the people,” with the

stated purpose of conforming to the one-man one-vote

rule. And then with the other hand, Appellants proceeded

to adopt a plan not even remotely approaching Avery

requirements.

Even a cursory view of Exhibit C reveals that the

requirements of Avery have been completely ignored.

The redistricting order of June 28, 1973 established new

precincts having substantial and significant population

variances, with one precinct having as much as 22 times

the population of another. A population percentage of

over 135%. See Exhibit C. Such a scheme is patently

invalid, and cannot be presumed even to be a good-faith

attempt to follow the mandate of Reynolds. How then,

can Appellants claim as a compelling state interest their

intention to redistrict to effect the one-man one-vote rule?

16

IV. THFRE IS NO COMPELLING STATE INTER-

EST TO JUSTIFY UNEQUAL PROTECTION

BETWEEN MEMBERS OF THE SAME CLASS.

The United States Supreme Court has repeatedly held

that a state cannot manipulate its political subdivisions

so as to defeat a federally protected right as for example,

by realigning political subdivisions so as to deny a person

his vote because of race, Gomillion v. Lightfoot, 364

U.S. 339 (1960); Sailors v. Kent Board of Education,

supra.

The Texas Constitution, Article V, Section 18, and

Article V, Section 24, establishes County Commissioners,

Justices of the Peace and Constables as county officers.

As county officers, they are members of the s#me class

and Article 2351'% is facially unconstitutional in that

it discriminates against members of the same class by

treating them differently with no compelling reason or

justification.

Paragraph (a) of Article 2351'A involves Commis-

However, Paragraph (c) of Article 2351% does not

require the Commissioners Court to delay the effective

“the first day of January following the next general

17

election.” This obvious legislative negative delegation of

different standards or treatment between commissioners

of a Commissioners Court in Paragraph (a), and of

Justices of the Peace and Constables in Paragraph (c)

of Article 2351% is an uncontrovertable example of

“unequal treatment of persons within the same class.”

Local bodies to whom the state delegates authority

cannot circumvent this restraint imposed by the Constitu-

tion. Standard Computing Scale Co. v. Farrell, 249 U.S.

571, 577 (1919); Cooper v. Arron, 358 US. 1, 17

(1958).

In Gomillion this Court held that a statute passed by

the Alabama legislature gerrymandering the boundaries of

the City of Tuskegee “from a square to an uncouth 28

sided figure” in order to disenfranchise a majority of negro

voters was unconstitutional as violative of the Fifteenth

Amendment.

Denial or delution of the right to vote on the basis

of race has been struck down consistently by the Courts,

irrespective of the method utilized to bring about such

denial of the franchise. See e.g., United States v. Missis-

sippi, 380 U.S. 128 (1965); Louisiana v. United States,

380 U.S. 145 (1965) (voter interpretation test invalid);

Andersen v. Martin, 375 U.S. 399 (1964) (printing of

candidates race on the ballot held invalid).

Gerrymandering on the basis of race is by itself a viola-

tion of the Fourteenth and Fifteenth Amendments to the

Constitution, Sims v. Baggett, 247 F. Supp. 96, 104 (M.D.

Ala. 1965), aff'd. sub. nom.; Reynolds v. Sims, supra.

There has been and should be no hesitation in striking

down such contrivances when they infringe on protective

rights, Whitcomb v. Chavis, 403 U.S. 124, 149 (1971).

18

In Whitcomb a challenge was made to state statutes

establishing Marion County, Indiana, as a multi-member

district for the election of state representatives on the

basis that the law diluted the votes of negroes and poor

persons living in the ghetto area of Marion County. This

Court distinguished cases such as Sims and Gomillion

and reversed the three-judge District Court finding that

the statutes were unconstitutional only because:

“[T)here is no suggestion here that Marion County's

multi-member district or similar districts throughout

the state were conceived or operated as purposeful

devices to further racial or economic discrimination.”

However, at bar, Appellants have never challenged the

allegation that one of the primary purposes of redistricting

was to draw the Justice of the Peace and Constable pre-

cinct lines in such a manner that minority enclaves were

created within the county.’ Appellant compounds this

illconceived derogation of their fiduciary duty to the

residents of Harris County by appointing political favorites

to fill the vacancies created by the redistricting with their

eyes not on “the convenience of the people” but rather

to broadening their own political power base and insuring

their continued existence and election to office. If one

accepts this as the true reason for redistricting, the real

motive behind the necessity of a mid-term implementation

of the redistricting surfaces in the form of time to allow

their appointees an opportunity to ingratiate themselves

in office and help insure their own re-election.

The clear and essential purpose of the Fourteenth

Amendment was to eliminate all official state sources

10. App. Brief at 5S.

19

of invidious racial discrimination, Loving v. Virginia, 388

U.S. 1 (1967), and for that reason racial classifications

are always constitutionally suspect, subject to the most

rigid scrutiny, and bear a far heavier burden of justifica-

tion than other classifications. Hunter v. Erickson, 393

U.S. 385 (1969).

Similarly, gerrymandering and other schemes when

effected for the purpose of discrimination on the basis

of ethnic origin, religion, wealth, or political affiliation

must be held to violate the equai protection clause of the

Fourteenth Amendment.

The sworn testimony presented by depositions to this

Court clearly reflects that a primary and avowed purpose

of the Commissioners Court in redistricting was to realign

voting districts on the basis of race, ethnic origin and

political affiliation and that said redistricting was enacted

for the additional purpose of creating “safe” Democratic

districts composed of minorities and for the purpose of

removing from office the sole elected Republican Justice

of the Peace, Appellee Gene Zaboroski.

It is quite obvious that the equal protection clause,

which prohibits arbitrary and invidious discrimination be-

tween citizens of the same class has been contravened by

the legislative attempt to circumvent both the express

mandate of ArticleV, Section 18 and Section 24 and the

prohibitions embodied in the equal protection clause it-

self by the arbitrary treatment of Justices of the Peace

and Constables and County Commissioners within their

same county.

20

V. THE QUESTION OF THE PRECINCT RESI-

DENCY OF JUSTICES OF THE PEACE AND

CONSTABLES WOULD HAVE BEEN AVOIDED

IF APPELLANTS HAD PRESERVED THE CON-

STITUTIONAL RIGHTS OF APPELLEE.

Appellants argue at some length in points B(a) and (4)

of their brief that the Texas residence requirement that

Justices of the Peace and Constables must reside in pre-

cincts which they serve, is a compelling state interest justi-

fying the removal of such non-resident Justices of the

Peace and Constables from office after a mid-term re-

districting. This is, of course, the ultimate case of the tail

wagging the dog. Note how quickiy these two “com-

pelling state interests” would be rendered moot if Ap

pellants had simply seen fit to use either of the two plans for

implementing redistricting set out by Appellee, supra.

If Appellant, had either implemented the redistricting

at the end of the elected term of each respective Justice

of the Peace or Constable or had altered the precinct lines

of the Justice of the Peace or Constable precincts so as

to include only one Justice of the Peace and Constable

in each precinct, they would have avoided the fiction of

having to create a compelling state interest to justify

the removal from office of those Justices of the Peace and

Constables who did not comply with their intended re-

sults.

Hindsight reveals that it was not until some time after

the Justice of the Peace and Constable precincts had been

redistricted and a lawsuit filed in the Federal Court on

behalf of the ousted Justices of the Peace and Constables

that Appellants began to concern themselves with “compel-

ling state interests.” Appellees now find themselves in the

21

ludicrous position of giving credence to Appellants’ dog

wagging position when the entire incident was caused by

Appellants’ lawless acts and could have been avoided

with no harm to either side.

Vi. THERE IS NO BASIS FOR APPLICATION OF

THE ABSTENTION DOCTRINE.

The Federal Courts have repeatedly emphasized that

abstention is appropriate only in narrowly limited special

circumstances, Zwickler v. Koota, 389 U.S. 241, 248

(1967). The governing rule was succinctly stated in

Garvin v. Rosenau, 455 F.2d 233 (6th Cir. 1972):

“The mere fact that a constitutional decision conceiv-

ably could be avoided or that federal state friction

might arise does not automatically justify resort to the

doctrine. The facts and circumstances of each case

must be carefully examined in order to evaluate the

policies to be served by abstention. Thus, resort to

abstention is appropriate only if the narrowly limited

countervailing interests are, on balance, more im-

portant to the federal constitutional system than a liti-

gants right to a federal forum.” (Emphasis added).

Id. at 238. Judge Wisdom, specially conferri:.z in Dubois

v. State of Louisiana, 339 F.Supp. 685, 690-61 (E.D.

La. 1972, noted the extremely limited scope permissible

in applying the abstention doctrine, and cautioned against

reading the Court’s decision of that day as adding

breadth to the doctrine. Judge Wisdom stated that, where

a state statute had been recently amended and there

had been no opportunity for authoritative state court

interpretation of the new provisions, and where a state

civil action involving identical questions was pending, the

22

pending lawsuit provided “a reasonable hope of a prompt

State court construction question,” thereby making appli-

cation of the abstention doctrine appropriate. Jd at 690;

Arla Inc. v. Giarusso, No. 71-1364 (E.D. La., Nov.

1971). He went on to caution that:

“[Ojur decision [in Dubois] should not be read to

require or even authorize the postponement of fed-

eral jurisdiction in constitution litigation when no

state court construction of the state law under attack

is clearly shown to be forthcoming.”

Id. accord, Wisconsin v. Constantineau, 400 U.S. 433,

438, 438-39 (1971) (abstention proper only where there

are presented “unresolved questions of state law which

only a state tribunal could authoritatively construe,” which

are dispositive of the constitional question).

In Constantineau, the Supreme Court affirmed the tak-

ing of jurisdiction by a three-judge federal court even

though the statute which had been struck down had never

been challenged or tested in the Wisconsin state courts.

Thus, even where state courts have not yet rendered a

clear or definite decision as to the applicability or con-

stitutionality of the statutes in question, the federal courts

are not deprived of jurisdiction to consider claimed relief

under Section 1983, Doud v. Hodge, 350 U.S. 485

(1956); Native American Church of Navajoland v. Ari-

zona Corp. Commission, 329 F. Supp. 907, 909 (D. Ariz.

1971), aff'd 405 U.S. 901 (1972).

In the instant case there is neither a civil nor a criminal

action pending in the state courts wherein the significant

constitutional questions here raised could be decided. The

provisions under attack are not newly enacted or amended;

23

in fact, Article V, Section 18 of the Texas Constitution

has remained substantially in its present form since

1875, with slight amendment in 1954. Similarly, Article

2351% was enacted in 1965.

There is no basis for abstention on questions of such

import and weight as are here presented, particularly the

issue as to denial of equal protection on the basis of

race—a guarantee which has been jealously guarded in

federal courts since the enactment of the Civil War amend-

ments.

CONCLUSION

Based upon the ruling and opinion of the Three-Judge

United States District Court for the Southern District of

Texas holding that there was no compelling state interest

to justify the actions of the Commissioners Court and

the feeble compelling state interests set out in Appel-

lants’ brief, Appellee respectfully submits this Honorable

Court should in all things affirm the judgment of the

United States District Court below.

Respectfully submitted,

C. ANTHONY FRILOux, JR.

GERALD A. WOOLF

Attorneys for Appellee

Gene Zaboroski ms

1215 First National Life Building

Houston, Texas 77002

713/227-4141

24

CERTIFICATE OF SERVICE

The undersigned counsel for the Appellee Gene

Zaboroski do hereby certify that on this day of

August, 1974, they did deposit in the United States Mail,

by Registered Mail, Return Receipt Requested, addressed

to each of the following Appellants’ Attorneys and other

Appellees’ Attorneys at the address shown, three (3) true

and correct copies of this instrument, entitled, “Brief of

Appellee Gene Zaboroski”:

JoE RESWEBER

County Attorney

202 Harris County

Courthouse

Houston, Texas 77002

EDWARD J. LANDRY

Senior Assistant County

Attorney

202 Harris County

Courthouse

Houston, Texas 77002

MICHAEL R. Davis

Assistant County Attorney

202 Harris County

Courthouse

Houston, Texas 77002

VirGIL H. BARFIELD

Attorney in Charge for

Plaintiffs,

Richard E. Moore, et al

500 Houston Bar Center

Bldg.

Houston, Texas 77002

JOHN G. GILLELAND

Of Counsel for Plaintiffs,

Richard E. Moore, et al

500 Houston Bar Center

Bldg.

Houston, Texas 77002

C. ANTHONY FRILOovux, Jr.

GERALD A. WOOLF

Attorneys for

Gene Zaboroski

1215 First National Life

Building

Houston, Texas 77002

713/227-4141

By _

C. ANTHONY FRILOvuXx, Jr.

By.

GERALD A. WooLF

25

APPENDIX

This appendix contains the following listed exhibits:

Exhibit A—Judgment Order of the District Court

Exhibit B—Opinion of the District Court

Exhibit C—Population Exhibit of Precinct

26

EXHIBIT A

FOR THE SOUTHERN DISTRICT OF TEXAS

IN THE UNITED STATES DISTRICT COURT

Houston Division

CIVIL ACTION NO. 73-H-993

RICHARD E. MOORE, J. C. BOLTON, VERNON G.

DOERING, J. W. MAHAN, GENE ZABOROSKI, and

JOHN HOWE BOYNTON, on His Own Behalf and on

Behalf of Every Residént Citizen of the Former Justice

of the Peace Precincts Nos. 5, 6, and 7 of Harris County,

Texas

v.

HARRIS COUNTY COMMISSIONERS COURT,

WILLIAM ELLIOT, Individually and as County Judge

of Harris County, E. A. LYONS, Individually and as a

Member of the Harris County Commissioners Court,

ROBERT ECKELS, Individually and as a Member

of the Harris County Commissioners Court, JAMIE

BRAY, Individually and as a Member of the Harris

County Commissioners Court, and TOM BASS, Indi-

vidually and as a Member of the Harris County Com-

missioners Court

ORDER

This action came on for hearing before a three-judge

district court composed of the Honorable Thomas G. Gee,

Circuit Judge, the Honorable John V. Singleton, Jr., Dis-

trict Judge, and the Honorable Carl O. Bue, Jr., District

Judge, and the issues having been duly heard and decision

having been duly rendered

27

It is ORDERED and ADJUDGED that

I. This court has jurisdiction under Title 28, U.S.C.A.

§ 2281.

Il. The Texas statute Article 235112, Vernon’s Ann.

Civ. St., is facially unconstitutional.

Ill. The order of the Commissioners Court of Harris

County, Texas, of June 28, 1973, complained of herein

issued pursuant thereto is therefore permanently enjoined.

An opinion of this court will follow.

DONE at Houston, Texas, on this the 30th day of

January, 1974.

/s/ —

Thomas Gibbs Gee

Circuit Judge

/s/

John V. Singleton, Jr.

District Judge

/s/

Carl O. Bue, Jr.

District Judge

28

EXHIBIT B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

Houston Division

NO. 73-H-993

RICHARD E. MOORE, ET AL

v.

HARRIS COUNTY COMMISSIONERS COURT, ET AL

NO. 73-H-1033

BLACKIE NEELEY

Vv.

HARRIS COUNTY COMMISSIONERS COURT, ET AL

Before GEE, Circuit Judge, SINGLETON and BUE.

District Judges. GEE, Circuit Judge:

Plaintiffs are duly elected Justices of the Peace, Con-

stables and voters of three former Harris County precincts

which have been abolished by order of defendants, the

County Judge and Commissioners of Harris County,

Texas. At the time of the order, and today, the terms to

which the plaintiff office-holders were elected had not

expired. The Commissioners acted under authority of a

Texas Constitutional provision’ permitting revision of

precincts from time to time “for the convenience of the

people” and Article 23514, Texas Revised Civil Statutes.

This article provides, in pertinent part, as follows:

1. Tex. Const. Art. 5, §18.

state interest to be served thereby.

truncate the term of some of the plaintiffs and set at

nought the vote of those who elected them to these offices.

30

These offices are the creation of state law; the jurisdiction

of the offices in question is statewide.’ and the statute

attacked is of statewide effect, and impact. The consti-

tutional issues raised are not facially insubstantial, and the

complaints clearly called for the convening of a three-

judge court.

We are not unmindful of the decision ir Snowden v.

Hughes, 321 U.S. 1 (1944), im which the right of a

citizen to be a candidate for state office was held to be

unprotected by the privileges and immunities clause of the

Fourteenth Amendment, or that in dicta the court ex-

tended its holding to the right to vote and hold such

office. But we are persuaded that this case is not controlled

by Snowden.

In the first place, on its facts Snowden involved a candi-

dacy only. We treat here of a Texas state office, which

has been repeatedly held by the courts of Texas to be

a species of property, ¢.g., State ex rei Jennett v. Owens,

63 Tex. 261 (1885). The Fourteenth Amendment might

well be seen as extending protection to an elected and

qualified office-holder, but not to a mere aspirant as in

Snowden.

In the second place, it appears that events have

marched by the view taken in Snowden of the division

of state and federal responsibilities.’ More recent Supreme

Court decisions have sapped the force of Snowden's vision

of the federal structure. The “privileges and immunities”

Clause of the Fourteenth Amendment has become irrele-

2. Eg. Arts. 2385, 6885, Tex. Rev. Civ. Stat. The jurisdiction

of a justice of the peace is to be distinguished from the venue

limitations of Art. 2390, RCS.

5. See Mancuso v. Taft, 476 F.2d 187, 196-97 n. 14 (ist Cir.

1973).

31

vant in considering protection of the right to run and

vote for state office. Modern concepts of equal protection

have assumed that burden. Bullock v. Carter, 405 U.S.

134, 31 L.Ed.2d 92 (1972); White v. Regester, —

U.S, 37 L.Ed.2d 314 (1973); Harper v. Virginia

Bd. of Elections, 383 U.S. 663, 16 L.Ed.2d 169 (1966);

cf. Oregon v. Mitchell, 400 U.S. 112, 27 L.Ed.2d 272

(1970).

section pertaining to county commissioners, Art. 2351/2

(b), expressly provides that the term of office of a county

commissioner is not to be affected by redistricting, even

32

The duly elected justices of the pee and constables,

plaintiffs here, are entitled to serve * ms to which

they were elected. Insofar only as Article 235112, Texas

Revised Civil Statutes mandates otherwise, it is uncon-

stitutional. Insofar only as defendants’ order of January

30, 1973, undertakes to appoint other persons to plain-

tiffs’ offices, and to prevent plaintiffs from carrying out

the duties and receiving the emoluments of their offices

—— the term to which they were elected, it is likewise

invalid.

/s/

Thomas Gibbs Gee

United States Circuit Judge

/s/

John V. Singleton, Jr.

United States District Judge

/s/

Carl O. Bue, Jr.

United States District Judge

a ae ee a Se

33

EXHIBIT C

The population count of the eight justice precincts,

before and after the redistricting of June 28, 1973; the

population difference between the smallest precinct and the

remainder of the precincts after redistricting; a percentage

comparison between the smallest precinct in population

and the remainder of the precincts in population after redis-

tricting; the area of each preci~.t in square miles after

redistricting; and a percentage comparison between the

smallest precinct in square miles and the remainder of the

precincts after redistricting, as as follows:

Population Arealn Area

Population Percentage Square Percentage

Pct. Percentage Population Difference Comparison Miles Comparison

No. Before After After After After After

1. 999,424 343,765 197,865 135.5% 66.0 38%

2. 436,974 145,960 Base Number Bare Number 880 5.0%

3. 111,106 169,959 23,999 16.0% 338.0 19.4%

4. 81,879 175,769 29,809 20.4% $93.0 33.9%

5. 6,966 337,844 191,884 131.4% 399.0 22.8%

6. 8,848 179,971 34,011 23.3% 32.0 18%

7. 11,976 238,401 92,411 63.3% 83.0 4.7%

8. 84,739 149,863 3,903 2.6% 150.0 8.6%

* The total population of Harris County, Texas per the 1970

Bureau of the Census Report is 1,741,912 persons.

. Ep os ean 6 epee ane & ee Cony, Tae ©

1 .