Petition — Rapides Parish Police Jury v. Parnell

FILED

Supreme Court, U. S, f

APR 18 1978 I

KJR., CLERK }

3u the

Supreme Court of the United States

OCTOBER TERM, 1977

NO. @Z- 1492

RAPIDES PARISH POLICE JURY, ET AL..,

Petitioners

versus

THOMAS R. PARNELL, ET AL.,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT AND FOR A STAY OF

PROCEEDINGS

GRAVEL, ROY & BURNES

JAMES BRADY

711 Washington St.

P.O. Box 1792

Alexandria, Louisiana 71301

(318) 487-4501

Attorney for Petitioners

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A B Letter Service, inc., 327 Chortres St., New Orleans, Le. (504) 581-5555

neta

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Page No.

ii

CITATIONS

Bradas v. Rapides Parish Police Jury,

W.D. La., 376 F.Supp. 690 (1974) .........

Bradas v. Rapides Parish Police Jury,

508 F.2d 1109 Sth Cir. (1975) ............

LeBlanc, et al. v. Rapides Parish Police

Jury, et al., Number 13,713 Western

District of Louisiana (unreported)..........

Sixty-Seventh Minnesota Senate v. Beens,

406 US. 187, 92 S.Ct. 1477 (1972) ........

United States v. Rapides Parish School

Board, Number 19209 Western District

of Louisiana October 25, 1973 (unreported). . . .

White v. Register, 412 U.S. 755; 92 S.Ct.

tt, PPPPTTTTTTTT ITT TTT TT ee

Zimmer v. McKeithen, 485 F.2d 1297

SOs Cie. CIGFED oc cc ccccccccccccvececees

STATUTES

U.S.C.A. Constitution Amendment 14

10

10

iii

STATUTES (Continued)

28 U.S.C.A. Section 1343 (3)(4).............

42 U.S.C. 1975 (c) (1970)... ... 2... eee ees

42 U.S.C.A. Section 1983 and 1988 ..........

West La. Rev. Stat. Ann. Sections 33:1221(a)

and (b) West Supp. 1977.................

Page No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO.

RAPIDES PARISH POLICE JURY, ET AL.,

Petitioners

v.

THOMAS R. PARNELL, ET AL..,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT AND FOR A STAY OF

PROCEEDINGS

The petitioners, the Rapides Parish Police Jury and certain

individual members thereof, respectfully pray that a writ of

certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Fifth Circuit entered

in this proceeding on November 17, 1977 and for a stay of

proceedings pending action by this court.

OPINION BELOW

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix hereto. The opinion of the district

court, not reported, also appears in the Appendix hereto.

JURISDICTION

The judgment of the Court of Appeals for the Fifth Circuit

2

was entered on November 17, 1977. A timely application for

rehearing and rehearing en banc was denied on February 3,

1978, and this petition for certiorari and for a stay of pro-

ceedings was filed within 90 days of that date. This court’s

jurisdiction is invoked under 28 U.S.C. Section 1254 (1).

QUESTION PRESENTED

Whether a federal district court can reduce the size of a

parish (county) governing body (police jury) in a reappor-

tionment action from 18 members to 9 members when there

was no showing that such a drastic reduction was necessary

either to achieve a one man, one vote ratio or to insure an

identifiable minority access to the political process when

such a reduction was not sought by any party and appears to

be in a direct conflict with this court’s holding in Sixty-

Seventh Minnesota Senate v. Beens, 406 U.S. 187; 92 S.Ct.

1477 (1972).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S.C.A. Constitution Amendment 14 Section 1

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the state

wherein they reside. No state shall make or en-

force any law which shall abridge the privileges or

immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal pro-

tection of the laws.”

3

STATUTORY PROVISIONS INVOLVED

28 U.S.C.A. Section 1343 (3)(4)

“The district court shall have original jurisdiction

of any civil action authorized by law to be com-

menced by any person: (3) to redress the depriva-

tion, under color of any state law, statute, ordi-

nance, regulation, custom or usage, of any right,

privilege, or immunity secured by the Constitu-

tion of the United States or by any act of congress

providing for equal rights of citizens or of all per-

sons within the jurisdictions of the United States;

(4) to recover damages or to secure equitable or

other relief under any act of congress providing for

the protection of civil rights, including the right to

vote.”

42 US.C.A. Section 1983 and 1988

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

state or territory, subjects or causes to be sub-

jected, any citizen of the United States or other

persons within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress.”

“The jurisdiction in civil and criminal matters con-

ferred on the district courts by the provisions of

this chapter and Title 18, for the protection of all

4

civil rights, and for their vindiction, shall be exer-

cised and enforced in conformity with the laws of

the United States, so far as such laws are suitable

to carry the same into effect; but in all cases where

they are not adapted to the object, or are deficient

in the provisions necessary to furnish suitable

remedies and furnish offenses against law, the

common law as modified and changed by the Con-

stitution and statutes of the states wherein the

court having jurisdiction of such civil or criminal

cases held, so far as the same is not inconsistent

with the Constitution and laws of the United

States, shall be extended to and govern the said

courts in the trial and disposition of the cause, and

if it is of a criminal nature, in the infliction of

punishment on the parties found guilty.”

West La. Rev. Stat. Ann. Sections 33:1221(a) and (b)

West Supp. 1977:

“A. Except as hereinafter provided in subsection

B of this section, every parish governing authority

in Louisiana ofganized under the police jury sys

tem of government, shall by ordinance, establish

the size of their bodies provided that no police jury

shall have less than five members nor more than

fifteen members, or the number of members

authorized for that jury on or before May 15,

1974, whichever is greater; provided, that parishes

with a population of 10,000 persons or less may

establish the size of the body and not less than

three members. Police jurors shall be elected at the

state general election and shall serve for terms of

5

four years each. The action of any police jury add-

ing members within the limits specified above prior

to the effective date of this act is hereby ratified.”

“B. Notwithstanding the provisions of subsection

A of this section, every parish governing authority

in Louisiana organized under the police jury sys

tem of government in a parish having a population

of between 10,000 and 115,000 inhabitants ac-

cording to the latest federal census may increase

the number of members serving on the police jury

provided, however, that each member serving on

such a police jury shall represent as nearly as

possible an equal number of persons.”

STATEMENT OF THE CASE

This suit is just the latest chapter in the lengthy series of

litigations involving the reapportionment of the Rapides

Parish Police Jury. This action was brought in March of

1976, shortly after the police jury elections of 1975. The

plaintiffs in this suit brought a class action under 42 U.S.C.

Section 1983 and after a trial, the district court found that

the apportionment scheme used to select parish school board

and police jury members which had been instituted by the

federal district court in 1971 in response to an earlier suit,

could not legally be maintained. The trial judge ordered that

both bodies be elected from 9 single member districts. The

existing police jury and school board members were to re-

main in office until the next scheduled elections. For the

school board, those elections, delayed pending the resolution

of the suit, will occur this summer. The police jury election

is not scheduled until 1980. The plaintiffs and the police

6

jury appealed; the school board did not. The Fifth Circuit

firmed the district court’s holding but modified the relief in

that they ordered new elections for the police jury to be held

as soon as practicable. The defendants, the R-pides Parish

Police Jury and several individual members thereof, have

filed this petition for certiorari and for a stay of proceedings

pending a decision by this court.

In order to fully understand the posture of this case, it is

necessary to discuss the lengthy and confusing history of re-

apportionment of the Rapides Parish Police Jury.

Rapides Parish is located in central Louisiana and had a

population of 118,000 in 1970. Approximately 28% of that

population were black; 72% were white. Alexandria, the

parish seat, is the only large town in the parish. Most of the

black population is concentrated in or around Alexandria.

Rapides Parish is governed by a police jury, a Louisiana

local governing body similar to a county commission. This

body acts as the parish legislature, but also historically, has

exercised various administrative functions such as the main-

tenance and construction of roads, bridges and public build-

ings. Historically, the basic territorial, political subdivision in

Rapides Parish has been the ward. The parish is divided into

eleven wards and before 1968, one police juror was elected

from each ward for a term of four years, with additional

jurors provided for parishes in excess of 50,000 population.

In 1968, suit was filed against the police jury charging that

the apportionment violated the one man, one vote doctrine.

On July 26, 1971, after lengthy litigation, the District

Court for the Western District of Louisiana rendered judg-

7

ment in the suit entitled “LeBlanc, et al. v. Rapides Parish

Police Jury, et al.” Number 13,713 of its Docket, ordering

the reapportionment of the parish jury and school board. At

that time, these bodies were admittedly in violation of the

“one man, one vote doctrine” and to comply, the parish was

divided into one single and three multi-member districts, each

body would contain an elected membership of 18.

District “A” under the LeBlanc Reapportionment Plan im-

plemented by the district court was an urban area composed

of Wards 1 and 8 with a population of 64,649 and was to

elect 10 members to each body. District ““B” was composed

of Wards 9, 10 and 11 with a population of 33,300 and elec-

ted 5 members to each body. District “C” was composed of

Wards 2, 3, 4, and 6 with a p~pulation of 14,073 and elected

2 members to each body. District ‘‘D” was composed of

Wards 5 and 7 and contained a population of 6,236 and

elected 1 member to each body. District “A” contained a

substantial black population in that 42% of the Ward 1 popu-

lation and 37% of the District “‘A” (Wards 1 and 8) were

black. No black candidate has ever been elected to serve as

a member of the parish police jury under the LeBlanc plan.

In 1973, the United States sued to set aside the LeBlanc

Plan. The government contended that it was invalid because

it lacked the approval of the Attorney General, as required

by Section 5 of the Voting Rights Act of 1965, 42 U.S.C.

1975(c) (1970) and that the plan violated the Fifteenth

Amendment rights of the black citizens of the parish. The

district court held that Section 5 of the Act did not apply to

plans submitted in response to court orders. United States v.

Rapides Parish School Board, Number 19209, Western Dis-

trict of Louisiana October 25, 1973.

8

On July 17, 1973, a group of blacks and whites filed a

class action complaint in the Federal District Court for the

Western District of Louisiana seeking reapportionment of the

Rapides Parish Police Jury and Rapides Parish School Board.

Their demand was based on allegations that the reapportion-

ment plan then in existence previously imposed by the dis-

trict court three years earlier, violated the ‘‘one man, one

vote” concept and diluted the voting strength of the black

population in the parish. This action known as the “‘Bradas

suit’ was tried and the trial judge found that the LeBlanc

Plan was in violation of the Fourteenth and Fifteenth

Amendments and implemented the 9 single member district

plan. Bradas v. Rapides Parish Police Jury, W.D. La. 376

F. Supp. 690 (1974). The district court in the Bradas suit

further ordered that all members of the police jury stand for

election at the next regular primary election to be held in

August of 1974 and at the next general election in November

of 1974.

The defendants filed a motion for a new trial which was

denied and the defendants thereafter requested that the en-

forcement of the judgment be stayed pending disposition

on appeal to the Fifth Circuit which was likewise denied.

The defendants then sought a stay from the United States

Court of Appeals for the Fifth Circuit and the United States

Supreme Court which was denied. The defendants then ap-

pealed the Bradas suit to the United States Court of Appeals

for the Fifth Circuit and on February 14, 1975, after elec-

tions for the police jury under the court imposed 9 single

member district plan had been held, the Fifth Circuit revers-

ed the judgment of the district court and remanded the case

to the district court with directions. Bradas v. Rapides Parish

Police Jury, 508 F.2d 1109 Sth Cir. (1975).

9

On remand, the district court approved a settlement enter-

ed to by the sitting 9 member bodies, under which they

would continue as 9 member groups indefinitely. The Court

of Appeals for the Fifth Circuit granted a writ of mandamus

and ordered the judge to withdraw his approval of this settle-

ment. The LeBlanc Plan was reinstituted in September of

1975. In December, elections for the 18 member police jury

were held. Two black incumbents from the 9 member jury

lost and no other black candidates won.

On April 2, 1976, the present suit was filed and the dis-

trict court rendered judgment in July of 1976. Both plain-

tiffs and defendants appealed to the Court of Appeals for the

Fifth Circuit. The school board has not appealed. The Fifth

Circuit rendered judgment on November 17, 1977 affirming

the district court but modifying the remedy.

REASONS FOR GRANTING THE WRIT

The decision of the district court and the Court of Ap-

peals below is in error and is in direct conflict with this

court’s pronouncements in Sixty-Seventh Minnesota Senate

v. Beens, 406 U.S. 187; 92 S.Ct. 1477 (1972).

It is most important to recognize, at the outset, that at no

time in the ‘extended story of reapportionment in Rapides

Parish” has any party ever requested or sought the imple-

mentation of a 9 single member district plan. The 9 member

plan was a creation of the district court in another suit in-

volving the reapportionment of Rapides Parish, Bradas v.

Rapides Parish Police Jury, 376 F. Supp. 690 W.D. La.

(1974); reversed 508 F. 2d 1109 5th Cir. (1975).

In the Bradas case, supra., the plaintiffs requested an 18 -

10

single member district plan. After the hearing in that case,

the district judge requested that the parties submit plans of

apportionment. The defendants, police jury, realizing that

the record contained no proof whatsoever of the necessary

allegations to sustain the plaintiffs’ burden of proof under

the principles announced by this court in White v. Register,

412 U.S. 755; 92 S. Ct. 2332 (1973) and the Fifth Circuit's

holding in Zimmer v. McKeithen, 485 F.2d 1297 Sth Cir.

(1973), submitted the plan under which they were operating,

the LeBlanc multi-member district plan.

The district court in Bradas, supra., rejected all plans and

implemented the 9 single member plan. The district judge in

that case felt he could not draft an acceptable 18 single

member plan, although he consulted no one specifically

about formulating an 18 single member plan.

The defendant police jury appealed the decision of the dis-

trict court in Bradas and alleged three grounds for reversal:

(1) a complete absence of any violation of the constitutional

standards governing the dilution of minority voting strength

in the record; (2) the question of res judicata based on the

district court’s dismissal of the suit brought by the United

States alleging a violation of the rights of the black minority

less than a year previous; (3) the reduction of the size of the

police jury from 18 to 9 members.

The Court of Appeals reversed on the first ground and did

not reach the other two allegations of error. Bradas v.

Rapides Parish Police Jury, et al., 508 F.2d 1109 Sth Cir.

(1975). It is from that case, the Bradas suit, that the district

court went to implement the 9 single member district plan

which he implemented in the instant case. |

1]

It is the instant suit, the impossibility of drafting an ac-

ceptable 18 single member plan as felt by the judge in Bradas

was proved to be a fallacy in view of the fact that in the in-

stant case, the plaintiffs introduced and filed in evidence an

acceptable 18 single member plan with supporting documen-

tation.

There has never been a hearing of any kind to determine

the practicability of implementing an 18 single member dis-

trict plan, nor has there ever been any statistical documenta-

tion of the 9 single member plan implemented in Bradas and

reimplemented in this case.

There has never been any showing that a reduction of the

membership of the police jury was justifed to achieve the

goals desired by the district court.

In this court's decision, Sixty-Seventh Minnesota v. Beens,

supra, a district court of three judges drastically changed the

number of members of the Minnesota Legislature by reducing

the Senate from 67 members to 35 and reducing the House

from 135 members to 105 members.

In reversing the three judge panel decision as “an unjusti-

fied exercise of the federal judicial power, not required by

the constitution,” this court recognized “that remedial

powers of an equity court must be adecuate to the task, but

are not unlimited.” 406 U.S. at 199: 92 Sup. Ct. at 1485.

This court condemned such “radical surgery in reappor-

tionment”’ by stating:

“There are cases where judicial reapportionment

has effectuated minor changes in a legislature size.

12

Nearly all those cases reflect an increase or de-

crease of only a few seats and at most, have ap-

peared to have been justified by state constitution-

al demand, agreement of the parties, the obser-

vance of geographical boundaries, or mathematical

convenience. We do not disprove a court imposed

minor variation from a state prescribed figure

when the change has shown to be necessary to

meet constitutional requirements. . .but to slash a

state senate size almost in half and a state house

size by approximately one-fourth is to make more

than a mere minor variation. If a change of that

extent were acceptable, so too, would be a federal

court’s cutting for increasing size by 75% or 90%

or, indeed, by prescribing a unicameral legislature

for a state that has always followed the bi-cameral

precedent.” 406 U.S. at 198-199; 92 S.Ct. at

1484-1485.

This court’s opinion in Beens, supra. states that there

would have been no constitutional problem to the district

court’s reducing the representatives by a very small number,

and it goes on to cite a number of cases in which legislature

were reduced very slightly. See footnote 10, 406 U.S. at

199; 92 S. Ct. at 1485. Beens clearly recognizes that an

abuse of the trial court’s authority will not be countenanced,

and likewise, recognized the right of the state or local govern-

ing body, as opposed to that of the district court, to deter-

mine its own size. The decision states:

“Our ruling here, of course, is no expression of

opinion on our part as to what is the desirable way

of legislative size for the State of Minnesota or for

13

any other state. It may well be that 67 senators

and 135 representatives make a legislature of un-

wieldy size. That is a matter of state policy. We

aré certainly not equipped, nor is it our function

and task to effectuate a policy of that kind or to

evaluate it once it has been determined by the

state. Neither is it the function and task of the

federal district court. Size is for the state to deter-

mine in the exercise of its wisdom and in the light

of its awareness of the needs and desires of its

people.” 406 U.S. at 200; 92 S. Ct. at 1486.

The Court of Appeals in its opinion below seemingly tries

to justify the action of the district judge in reducing the

police jury from 18 to 9 members by stating that such a re-

duction is consistent with the announced state policy of

Louisiana. They cite La. Stat. Ann. 33:1221 (West. Supp.

1977) as authority for that proposition. This conclusion

by the Court of Appeals is patently in error. The cited stat-

ute reads in pertinent part as follows:

“A. Except as hereinafter provided in subsection

B of this section, every parish governing authority

in Louisiana organized under the police jury sys

tem of government,.shall be ordinance, establish

the size of their bodies provided that no police

jury shall have less than 5 members nor more than

15 members, or the number of members authori-

zed for that jury on or before May 13, 1974,

whichever is greater; provided that parishes with a

population of 10,000 persons or less may estab-

lish the size of the body at not less than 3 mem-

bers. Police jurors shall be elected at the state gen-

14

eral election and shall serve for terms of 4 years each.

The action of any police jury adding members within

the limits specified above prior to the effective date of

this act is hereby ratified.

B. Notwithstanding the provisions of subsection A of

this section, every parish governing authority in Louisi-

ana organized under the police jury system of govern-

ment in a parish having 2 population of between 10,000

and 115,000 inhabitatns according to the latest federal

census may increase the number of members serving on

the jury provided however that such members serving on

such police jury shall represent nearly as possible in

equal number of persons.”

On May 13, 1974, the number of police jurors in Rapides

Parish was 18. Historically, the number of jurors in the

parish had been between 15 and 18. Therefore, under the

language of the above quoted statute, (--- or the number of

members authorized for that jury on or before May 13, 1974

whichever is greater—-) the policy insofar as the police jury of

Rapides Parish is concerned is a police jury of 18 members.

The opinion of the Fifth Circuit in their affirmance of the

district court sets a serious precedent that will affect every

public body in the Fifth Circuit when a district court an now

reduce the size of a police jury to 50% without any showing

that such a reduction was necessary.

The district court exceeded its authority in this case and

could have more than adequately settled all constitutional

questions without the necessity of such a serious reduction in

membership. If this opinion is allowed to stand, then, in

15

applicant's opinion, a district court in the Fifth Circuit could

easily and unfettered reduce a body by 75% or 90% and the

fears of this court in Beens, supra., will become a reality.

Applicant submits that the apparent unjustified reduction

of a public body by 50% warrants the granting of certiorari

to review the judgments below.

REASONS FOR GRANTING A STAY OF PROCEEDINGS

Applicants request that this court grant a stay of proceed-

ings and stay the mandates of the Fifth Circuit Court of Ap-

peals in their opinion of November 17, 1977 for the follow-

ing reasons:

At page 714 of its November 17, 1977 opinion, the Fifth

Circuit ordered the district judge to

“Order police jury elections under a legal apportion-

ment plan as soon as reasonably practical. At oral argu-

ment, we were informed that the school board elec-

tions are scheduled for next summer. The extra expense

to the parish of a police jury election at that time would

not be great. If the district court considers it practi-

cable, it would seem reasonable to hold the police jury

elections at the same time as the school board elec-

tions.”

The district court has entered judgment on March 20,

1978 ordering elections for the jury to be held in accordance

with Louisiana law. Under Louisiana law, the qualifying for

such elections begins on the second Monday in July of 1978

and closes the following Friday. The primary election for

16

police jury would then be held on the third Saturday in

September and the general election would be on the first

Tuesday after the first Monday in November 1978.

The district court’s judgment is attached to the Appendix

hereto.

In all probability, the scheduled qualification period and

the elections will have elapsed by the time this court acts on

this petition for certiorari. That would cause an irrevocable

injury to the applicants in that the offices to which they were

duly elected would be vacated. This could lead to serious

confusion as has occured in the past when the elections were

held and the decision of the district court was reversed on

appeal.

For these reasons, this court should stay the mandate of

the Court of Appeals directed to the district court below

until such time as this court has an opportunity to act on this

petition for certiorari.

CONCLUSION

For these reasons, a writ of certiorari should issue to re-

view the judgment and opinion of the Fifth Circuit and this

court should stay the mandates of the Court of Appeals in

this matter until such time as this court has an opportunity

to act'on this petition for certiorari.

Respectfully Submitted,

GRAVEL, ROY & BURNES

17

By:

JAMES J. BRADY

Attorneys for Petitioners

711 Washington Street

Post Office Box 1792

Alexandria, Louisiana 71301

(Area 318) 487-4501

ORDER

PREMISES CONSIDERED,

IT IS ORDERED that all proceedings in this matter and

the mandate of the Fifth Circuit Court of Appeals as set

forth in their November 17, 1977 opinion be stayed until

the further orders of this court.

This order signed in the City of Washington, District of

Columbia, on the day of , 1978.

JUSTICE - UNITED STATES

SUPREME COURT

18

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the above and fore-

going Petition for Writ of Certiorari has been served upon the

following persons by placing a copy of said petition in the

mail, postage prepaid:

Mr. Stanley A. Halpin, Jr.

806 Perdido Street, Suite 401

New Orleans, Louisiana 70112

Mr. John F. Ward, Jr.

770 North Street

Baton Rouge, Louisiana 70802

Mr. Gerald W. Jones

Mr. John P. MacCoon

Department of Justice

Washington, D.C. 20530

Alexandria, Louisiana this 17th day of April, 1978.

JAMES J. BRADY

A-l

APPENDIX A - ORDER DENYING PETITION FOR

REHEARING

United States Court of Appeals

Fifth Circuit

Office of the Clerk 600 Camp Street

Edward W. Wadsworth New Orleans, La. 70130

Clerk

February 3, 1978

TO ALL PARTIES LISTED BELOW-

NO. 76-4176 - THOMAS R. PARNELL, ET AL. v.

RAPIDES PARISH SCHOOL BOARD,

ET AL. v. TERRY L. FARRAR, ET AL.

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition ( ) for rehearing,** and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate Procedure; Local

Fifth Circuit Rule 12) the petition ( ) for rehearing en banc

has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

*On behalf of appellees, Rapides Parish School Board.

A-2

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By S/ Brenda M. Hauck

Deputy Clerk

bh

cc: Mr. Stanley A. Halpin, Jr.

Mr. John C. Hoyle

Mr. James J. Brady

A-3

APPENDIX B - OPINION OF FIFTH CIRCUIT COURT

OF APPEALS

Thomas R. PARNELL et al., Plaintiffs Appellants-

Cross Appellees,

v.

RAPIDES PARISH SCHOOL BOARD et al.,

Defendants-Appellees-Cross Appellants

v.

Terry L. FARRAR et al., Intervenors

No. 76-4176

United States Court of Appeals, Fifth Circuit

Nov. 17, 1977

Class action was brought for declaratory and injunctive

relief against court-ordered reapportionment plan for selec-

tion of parish police jury and school board members. The

United States District Court for the Western District of

Louisiana at Alexandria, Edwin F. Hunter, Jr., J., 425 F.

Supp. 399, found that apportionment scheme used to select

parish school board and police jury members could not

legally be maintained and ordered that both bodies be elec-

ted from mine single-member districts, with existing boards

to remain in office until next scheduled elections, and plain-

tiffs and police jury appealed. The Court of Appeals, Wis-

dom, Circuit Judge, held that: (1) district judge’s holdings

that previous multimember plan constituted inappropriate

A-4

judicial remedy and impermissibly diluted votes of black

residents of parish were not barred by res judicata and would

be affirmed, but (2) district judge should order police jury

election, which was next scheduled for 1980, under legal

apportionment plan as soon as reasonably practical and (3)

apportionment plan, which had been ordered by the district

court and which achieved low population deviation, would be

affirmed.

Affirmed in part, modified in part and remanded.

1. Counties 38 "

Schools and School District 48

In absence of unique factors in parish justifying multi-

member districts, reapportionment plan under which wards

of parish were divided into single-member and multimember

districts for purpose of electing parish police jury and school

board members constituted inappropraite judicial remedy.

2. Counties 38

Schools and School Districts 48

Reapportionment plan under which parish wards were

divided into single-member and multimember districts for

purpose of electing parish police boards and school board

members impermissibly diluted votes of black residents of

parish. U.S.C.A. Const. Amends. 14, 15.

3. Judgment 585(5)

Where law had changed significantly, res judicata did not

bar holding that court-ordered reapportionment plan for

selection of parish police jury and school board members

A-5

constituted inappropriate judicial remedy nor did res judi-

cata bar assertion of claim concerning dilution of black vot-

ing strength, even though same claim made by similar class

had been previously rejected, since to bind forever class

members to deprivation of constitutional rights because of

previous failure of proof would be unjust.

4. Judgment 585(5)

Faced with changing law, courts hearing questions of con-

stitutional right cannot be limited by res judicata.

5. Counties 38

While it was unfortunate that incumbent members of po-

lice jury, elected after court order, had to have their terms

cut short and that voters of parish had to face another elec-

tion, it would be far more unfortunate for exclusion of black

Americans from fair participation in parish politics to con-

tinue any longer than necessary, and thus district judge, who

had found that reapportionment plan constituted imper-

missible scheme and also impermissibly diluted votes of black

parish residents, should order police jury election under legal

apportionment plan as soon as reasonably practical rather

than waiting for next scheduled election in 1980.

6. Counties 38

Apportionment plan, which provided for nine-member

police jury, which achieved average population deviation of.

0.72% and maximum deviation of 2.2%, while at the same

time preserving to a very substantial degree traditional ward

lines and geographical boundaries of parish, thus promoting

continuity and ease in transition from old plan to new, and

A4

which fell within limits set by Louisiana statute requiring

that police jury have between five and 15 members or any

other number in effect before May 1974, would be affirmed.

LSA-R.S. 33:1221.

Appeals from the United States District Court for the

Western District of Louisiana.

Before WISDOM, GEWIN and AINSWORTH, Circuit

Judges.

WISDOM, Circuit Judge:

This is another chapter in the extended story of reappor-

tionment in Rapides Parish, Louisiana. In this class action

brought under 42 U.S.C. $1983, the district court found that

the apportionment scheme used to select parish school

board and police jury members, instituted by a federal court

in 1 71 in response to an earlier suit, could not legally be

maintained. The trial judge ordered that both bodies be

elected from nine single-member districts. The existing

boards were to remain in office until the next scheduled elec-

tions. For the school board, those elections, delayed pending

the resolution of the suit, will occur next summer. The po-

lice jury election is not scheduled until 1980. The plaintiffs

and the police jury appealed; the school board did not. We

affirm the district court’s holding but modify the remedy

ordered.

I.

Rapides Parish, located in central Louisiana, had a popu-

7

lation of 118,000 in 1970. Approximately 28 percent of

that population were black; 72 percent were white. Alexan-

dria, the parish seat, is the only large town in the parish.

Most of the black population is concentrated in or around

Alexandria.

Rapides Parish is governed by a police jury, a Louisiana

local governing body similar to a county commission. This

body acts as the parish legislature, but also historically has

exercised various administrative functions such as the main-

tenance and construction of roads,bridges, and public build-

ings. See La. Const. Art. 14, Sec. 3; La. Rev. Stat. Ann.

§ 33:1221, et seq. (West Supp. 1977). The parish is divided

into 11 wards. Until 1968 one police juror was elected from

each ward. The wards varied tremendously in population.

Thus, in 1970, Wards One and Eight had a combined popu-

lation of 64,659, while Wards Two, Three, Four, and Six had

a combined population of only 14,073.

In 1968 suit was filed against the police jury, charging that

the apportionment violated the one-man one-vote doctrine.

After extensive litigation the district court approved a plan

submitted by the local authorities. LeBlanc v. Rapides

Parish Police Jury, July 26, 1971, W.D. La., No. 13,715. The

parish was divided into four districts, each composed of a

combination of wards. District A, composed of Wards One

and Eight, elected ten members of the police jury and of the

school board. Ward One consisted of Alexandria, Ward Eight

of an area near Alexandria. District A was 37 percent black

by population. It contained 72 percent of the black popu-

lation of the entire parish. District B elected five members,

District C two members, and District D. one member. Those

three districts were predominantly white.

AS

In 1973 the United States sued to set aside the LeBlanc

plan. The government contended that it was invalid because

it lacked the approval of the Attorney General, as required

by Section 5 of the Voting Rights Act of 1965, 42 U.S.C.

§1973c (1970). The district court held that Section 5 of the

Act did not apply to plans submitted in response to court

orders. United States v. Rapides Parish School Board,

Oct. 25, 1973, W.D. La., No. 19,209.

Also in 1973 a group of residents filed a class action, seek-

ing a change in the LeBlanc plan. The plaintiffs charged that

the LeBlanc plan diluted black voting strength in violation

of the Fourteenth and Fifteenth Amendments, and also vio-

lated the one-man one-vote rule. In May 1974 the district

court struck down the LeBlanc plan. Bredas v. Rapides

Parish Police Jury, 1974, W.D. La., 376 F Supp. 690. The

trial judge found that District A concentrated black strength

in a multi-member district, making it difficult, if not impos

sible, for that strength to elect any officials. The judge

ordered that single-member districts be substituted. All

four plans submitted by the parites were “either incomplete

and unsupported, or were constitutionally unacceptable”’.

376 F.Supp. at 694. The trial judge then drafted his own

plan for nine single-member districts. Elections under that

plan were held for both bodies in late 1974. Two blacks

were elected to the school board, and two to the police jury.

The defendants appealed. In February 1975 this Court re-

versed the trial court’s decision. Bradas v. Rapides Parish

Police Jury, 5 Cir. 1975, 508 F.2d 1109. The Court conclu-

ded that the plaintiffs had failed to carry their burden of

proof under the standards governing dilution of minority

AY

voting strength.' The district court's order was vacated, and

that court was required to reinstitute the LeBlanc plan in

time for the next election. The Court, however, declined to

disturb the tenure of the recently-elected school board and

police jury of nine members each.

On remand the district court approved a settlement en-

tered into by the sitting nine member bodies, under which

they would continue as nine member sroups indefinitely.

The Court of Appeals granted a writ of mandamus and or-

dered the judge to withdraw his approval of this settlement.

The LeBlanc plan was reinstituted in September 1975. In

December elections for the 18 member police jury were held.

The two black incumbents from the nine member jury lost,

and no other black candidates won.

On April 2, 1976, the present suit was filed? Three black

A-10

of East Carroll Parish School Board v. Marshall, 1976, 424 U.

S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 affg on other

grounds, Zimmer v. McKeithen, 5 Cir. 1973 (en banc), 485

F.2d 1297, the plaintiffs would probably succeed on the

merits. Nevertheless, he felt bound by the writ of manda-

mus from this Court and would not grant the requested in-

junction. An appeal followed, and the district judge was

freed from the effects of the writ of mandamus. The judge

then enjoined the election.

The district court issued its opinion on September 30,

1976. Parnell v. Rapides Parish School Board, 1976, W.D.

La., 425 F.Supp. 399. The court held that the LeBlanc

plan was invalid on two independent grounds. First, it vio-

lated the limits of judicial discretion in formulating reappor-

tionment plans by permitting multi-member districts.

Second, the plan had the effect of diluting black voting

strength. The judge ordered that the nine member plan,

developed by Judge Scott in the Bradas case, be implement-

ed. The school board elections, enjoined by the court since

July 1976, were to be conducted under that plan. The police

jury was also to be elected under that plan, but not until the

next regularly scheduled election in 1980.

The plaintiffs appealed, asserting that the judge erred by

not ordering an immediate police jury election. The police

jury, and seventeen of its eighteen members, cross-appealed,

asserting that the LeBlanc plan was valid, that this suit was

barred by res judicata, and that the district court abused its

discretion in reducing the size of the police jury. The school

board did not appeal.

A-11

Il.

{1] The district court's first ground for its decision was

that intervening decisions have revealed the LeBlanc plan to

be an inappropriate judicial remedy. The district judge re-

lied upon the Supreme Court’s decision in East Carroll Par-

ish School Board v. Marshall, 1976, 424 U.S. 636, 96 S.Ct.

1083, 47 L.Ed. 2d 296. The Court’s per curiam opinion

stated:

{W]hen the United States district courts are put to the

task of fashioning reapportionment plans to supplant con-

cededly invalid state legislation, single-member districts

are to be preferred absent unusual circumstances. [cita-

tions omitted]. As the en banc opinion of the Court of

Appeals amply demonstrates, no special circumstances

here dictate the use of multi-member districts. Thus, we

hold that in shaping remedial relief the District Court

abused its discretion in not initially ordering a single-

member reapportionment plan.

424 US. at 639-40, 96 S.Ct. at 1085. The Court recently

reiterated this position in Connor v. Finch, 1977, US. ,

, 97 S.Ct. 1828, 1834, 52 L.Ed.2d 465, 474, holding that

a multi-member plan should be ordered bya court only where

it “articulates. . . ‘a singular combination of unique fac-

tors’ that justifies a difference”. This Court has recognized

the effect of East Carroll Parish on the limits of district court

power. In Wallace v. House, 5 Cir. 1976, 538 F.2d 1138,

1140-41, on remand from, 1976, 425 U.S. 947, 96 S.Ct.

1721, 48 L.Ed.2d 191 vacating, 5 Cir. 1975, 515 F.2d 619,

we voided a district court plan which provided at-large

councilmanic elections.

A-12

The defendants did not argue to the district court that

unique factors existed in Rapides Parish to justify a multi-

member district. Nor did they so argue here. The clear direc-

tive of the Supreme Court must be followed, and the dis-

trict court’s holding must be affirmed.

[2] We also affirm as to the trial court’s second ground,

that the LeBlanc plan impermissibly diluted the votes of the

black residents of the parish. In dealing with charges of vote

dilution, our starting point must be this Court’s definitive

opinion in Zimmer v. McKeithen, 5 Cir. 1973, 485 F.2d

1297, aff'd on other grounds sub nom. East Carroll Parish

School Board v. Marshall, 1976, 424 U.S. 636 96 S.Ct. 1083,

47 L.Ed.2d 296. Zimmer pointed out that statistics alone

could not prove impermissible dilution of minority voting

power. Instead,

“where the petitioner can demonstrate that ‘its members

had less opportunity than did other residents in the

district to participate in the political processes and to elect

legislators of their choice’ . . . such districting schemes are

constitutionally infirm.’ [citations omitted]

485 F.2d at 1304-15. The Court listed a number of factors

which were to be considered. Among them were the motiva-

tion for the districting scheme, lack of minority group access

to the process of slating candidates, unresponsiveness of legis-

lators to minority interests, and the strength of the state

interests served by multi-member districts. Other factors

were the existence of past discrimination with continuing

effects of political participating, the size of the districts,

majority vote requirements, anti-single shot voting provisions,

and the existence of a requirement that candidates run from

particular geographic subdivisions. 485 F.2d at 1305.

A-13

Judge Hunter, the trial judge, took extensive evidence on

the impact of the multi-member districts on black partici-

pation in Rapides Parish politics. He considered the popula-

tion distribution in the parish, the legacy of discrimination,

the probability of racial bloc voting, the structure of the elec-

toral process, and the outcome of past elections. The judge

concluded:

“The ultimate question is, of course, how these formal

structures (multi-member districts, majority run-off), in-

formal structures (such as the one-party system), and

political context (history of racial discrimination, etc.)

operate in combination . . . The experiences of blacks

running in the multi-member districts under the LeBlanc

Plan show that these factors, particularly in combination

with recial bloc voting, effectively deny blacks access to

the political process. The predictable outcome is that

blacks are consistently defeated in the multi-member dis-

tricts. This is no accident, nor is [it] the mere function of

losing fair elections. Rather, given the totality of circum-

stances of the political context which includes bloc voting,

a one-party system, and the vestiges of a long history of

racial discrimination, the LeBlanc plan clearly stacks the

decks against blacks by the use of multi-member districts

with a majority run-off requirement.”

425 F.Supp. 399, 406. The case presented here is much

stronger than that rejected in Bradas. Under the Zimmer

standard these facts constituted a compelling case. We can-

not say that the finding was clearly erroneous.

On appeal the defendants did not mount a strong attack

on the merits of the lower court’s findings. Instead, they

A-14

concentrated on their position that the suit was barred by res

judicata. Although we are aware of the importance of res

judicata in preventing relitigation of controversies, we hold

that this cause was not barred.

[3,4] The district court’s first ground cannot be barred

by a claim of res jud’cata. The law had changed significantly

between the Court oi Appeals decision in Bradas in February

1975 and the filing of this suit. The East Carroll Parish

decision changed the relevant law. Had this Circuit consider-

ed judicially ordered single-member districts impermissible

in all but extraordinary situations, the Zimmer decision

would not have reached the constitutional issue.? Faced with

changing law, courts hearing questions of constitutional right

cannot be limited by res judicata. If they were, the Constitu-

tion would be applied differently in different locations. But

“(t]he Constitution is not geared to patchwork geography.

It tolerates no independent enclaves.”’ Christian v. Jemison,

5 Cir. 1962, 303 F.2d 52, 55, cert. denied, 1962, 371 U.S.

920, 83 S.Ct. 287, 9 L.Ed. 2d 229. For this reason conten-

tions that new reapportionment suits were barred have been

rejected. See Whitcomb v. Chavis, 1971, 403 U.S. 124, 162-

63, 91 S.Ct. 1858, 29 L.Ed.2d 363; Moch v. East Baton

Rouge School District 5 Cir. 1977, 548 F.2d 594, cert.

denied, 1977, US. ,98SCt. ,53LEd2d

Res judicata does not bar the plaintiffs’ assertion of dilu-

tion of their voting strength Although the same claim, made

by a similar class, was rejected by this Court for insufficient

3. A further distinction between the law before and after East Carro//

Parish was pressed by the United States as amicus curiae below. East

Carroll Parish involved a plan developed by the defendnts and merely

approved by the court. The previous cases in which the Supreme Court

had stressed the importance of single-nember districts in granting equit-

able relief had involved court<eveloped plans. in this case the Le

Blanc plan was authored by the parties.

A-15

proof in Bradas v. Rapides Parish Police Jury, 5 Cir. 1975,

508 F.2d 1109, “it should be remembered that res judicata is

a principle of public policy and should be applied so as to

give rather than deny justice”, Dore v. Kleppe, 5 Cir. 1975,

522 F.2d 1369, 1374. To bind forever class members to a

deprivation of their constitutional rights because some class

members failed to enter enough evidence to meet their bur-

den of proof is unjust. That is particularly true in this case.

The district judge, who had ordered the LeBlanc plan origin-

ally, was convinced by the Bradas plaintiffs; their only error

was in not foreseeing that the reviewing court would be more

skeptical. Res judicata cannot be allowed to yield such an

unfair outcome.* Therefore, neither of the district court's

holdings were barred, and both are affirmed.

Il.

[5] The district court ordered that elections be held un-

der the nine single-member district plan from Bradas. The

‘school board election, delayed by the trial judge’s prelimin-

ary injunction, is to be held next summer. The next sched-

uled police jury election is in 1980. We affirm as to the dis

trict court’s apportionment plan, but must modify the timing

of the new elections.

The plaintiff class in this case has waited long enough for

fair admission to the political process. Before the Civil War

blacks had no political rights. After the Civil War what rights

they acquired were stripped away by several state-ordered

4.The problems of res judicata in “public law” actions have provoked

some comment. See Note, Developments in the Law: Class Actions, 89

Harv.L.Rev. 1321, 1396-98 (1976); Note, Ciass Action Judgments and

Mutuality of Estoppe!l, 43 Geo.Wash.L.Rev. 814, 818-20 (1975). See

generally 18 Moore's Federal Practice $ 0.405 [ 11).

A-16

ploys. See United States v. Louisiana, 1963, E.D.La. (three

judge court), 225 F.Supp. 353, aff'd, 380 U.S. 145, 85 S.

Ct. 817, 13 L.Ed.2d 709. When the federal government,

through judicial enforcement of the Constitution and execu-

tive enforcement of the Voting Rights Act of 1965, forced

the admission of black men and women to politics, they still

faced obstacles. In Rapides Parish, as in many parishes and

counties, they had to contend with multi-member districts

and an apportionment which denied them effective access to

political representation. Only in the interim between the dis-

trict court decision in Bradas and this Court's reversal of that

decision have blacks been represented on the police jury.

It is unfortunate that the incumbent members of the po-

lice jury, elected after an order by this Court, must have

their terms cut short; and that the voters of Rapides Parish

must face another election. But it would be more unfor-

tunate for the exclusion of black Americans from fair partici-

pation in Rapides Parish politics to continue any longer than

necessary. The district judge should order police jury elec-

tions under a legal apportionment plan as soon as reasonably

practicable. At oral argument we were informed that the

school board elections are scheduled for next summer. The

extra expense to the parish of a police jury election at that

time would not be great.Ifthe district court considers it prac-

ticable, it would seem reasonable to hold the police jury elec-

tion at the same time as the school board election.

[6] We affirm the apportionment plan ordered by the dis-

trict court. The LeBlanc plan provided for a police jury of

eighteen members, the number previously elected in Rapides

Parish. The district court adopted the nine member plan

formulated by Judge Scott in Bradas. Judge Hunter found

A-17

that the Bradas plan met one-man one-vote requirements,

gave minority groups a fair opportunity to participate, and

was favored by the parties. 425 F.Supp. at 407. The Bradas

plan achieved an average population deviation of 0.72 per-

cent, and a maximum deviation of 2.2 percent. At the same

time it preserved to a very substantial degree the traditional

ward lines and geographical boundaries of the parish, thus

promoting continuity and an ease in the transition from the

old plan to the new. Judge Scott found that an eighteen

member plan could not provide these benefits.

Having experienced the difficulty, indeed the impossibili-

ty, of drafting a plan providing for eighteen single-member

districts, and after considering numerous alternatives, we

determined that the nine single-member district plan was

the plan most consistent with the Fourteenth and Fifteen-

th Amendment principles. In reducing the membership

of the School Board and the Police Jury, we are well

aware of the holding of Minnesota State Senate v. Beens. .

376 F.Supp. at 693.

As Judge Scott noted, Sixty-Seventh Minnesota State

Senate v. Beens, 1972, 406 U.S. 187, 92 S.Ct. 1477, 32 L.Ed.

2d 1, was not a barrier to his decision. In that case the dis

trict court had reduced the size of the Minnesota Senate

from 67 members to 35. The size of the state senate was set

by statute. It had consisted of 67 members since 1915,

through two previous reapportionments. The Court held

that district courts should ‘“‘accommodate the relief ordered

to the appropriate provisions of state statutes relating to the

legislature's size insofar as is possible.” 406 U.S. at 197, 92

S.Ct. at 1484. The Court recognized that minor changes in

size were permissible, and that major changes might be neces-

sary if ‘the number so prescribed [by the state] occasions

A-18

significant and invalidating population deviations.” 406 U.S.

at 199, 92 S.Ct. at 1485.

Judge Scott properly distinguished this case from Beens.

First, the state interest is not as great. In Beens the state had

maintained the senate at the same size, by statute, for almost

sixty years. In this case the state does not mandate the size

of the police juries in its parishes. Instead, the relevant

statute only requires that the police jury have between five

and fifteen members, or any other number which was in

effect before May 1974. La.Rev.Stat.Ann. §33:1221 (West

Supp. 1977). The plan ordered by the district court fell well

within the limits set by Louisiana’s policy.

Second, the district judge in Bradas found that an ade-

quate eighteen single-member district plan was impossible.

As the number of districts increases, the percentage deviation

created by a discrepancy of any given number of voters also

increases. The nine member plan adopted by both judges

has a remarkably low deviation. Its superiority to the eigh-

teen member plans discussed by Judge Scott is a further im-

portant difference between this case and Beens. Beens does

not bar this relief.

IV.

The road to a legal apportionment in Rapides Parish has

been long and rocky. This decision should signal that the

end is in sight. Police jury elections, under the nine member

plan adopted by the district court, should be held as soon as

reasonably practicable. Fair political participation for all

the voters of Rapides Parish must be delayed no longer.

The decision of the district court is affirmed in part, modifi-

A-19

ed in part, and remanded for further proceedings not incon-

sistent with this opinion.

AFFIRMED IN PART, MODIFIED IN PART AND RE-

MANDED.

A-20

APPENDIX B - MEMORANDUM OF DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

CIVIL ACTION NO. 760364

THOMAS R. PARNELL, ET AL.

VS.

RAPIDES PARISH SCHOOL BOARD, ET AL.

FOR PLAINTIFFS Messrs.

Stanley A. Halpin, Jr.

344 Camp Street, Suite 1212

New Orleans, Louisiana 70130

FOR DEFENDANTS James J. Brady

711 Washington Street

P.O. Box 1792

Alexandria, Louisiana 71301

John F. Ward, Jr.

770 North Street

Baton Rouge, Louisiana 70802

FOR INTERVENORS Richard B. Crowell

P.O. Box 330

Alexandria, Louisiana 71301

FOR THE GOVERNMENT Gerald W. Jones

John P. MacCoon

Department of Justice

Washington, D.C. 20530

A-21

HUNTER, SENIOR JUDGE:

The history of litigation involving the reapportionment of

the Rapides Parish Police Jury and School Board is set out

in Bradas v. Rapides Parish Police Jury, 508 F. 2d 1109

(Sth Cir. 1975), at 1110-1111. The reapportionment plans

for the Rapides Parish Police Jury and School Board, chall-

enged in the instant action under the Fourteenth and Fifteen-

th Amendments, were originally instituted and approved by

a Federal Court in LeBlanc v. Rapides Parish Police Jury,

Civil Action No. 13,715 (W.D. La., July 26, 1971).

The sequence of the litigation is pertinent:

(1) By judgment of July 26, 1971, in a prior suit entitled

LeBlanc, et al v. Rapides Parish Police Jury, et al, Civil Ac-

tion No. 13,715, the district court approved the LeBlanc

Plan. The plan divided the eleven (11) wards of Rapides

Parish into one single-member and three multi-member dis-

tricts for the purpose of electing 18 officers to the Parish

Police Jury, as well as to the Parish School Board.

(2) A year after implementation of LeBlanc, the United

States instituted an action seeking to nullify the plan because

it lacked prior approval of the Attorney General of the Unit-

ed States, pursuant to Section 5 of the Voting Rights Act of

1965.

(3) The district judge dismissed the suit, holding that

Section 5 did not require prior approval of reapportionment

plans submitted to a United States District Court in the trial

of an adversary proceeding (United States v. Rapides Parish

School Board, et al, Civil Action No. 19,209, W.D. La.,

A-22

October 25, 1973).

(4) Subsequently, ten parish citizens, both blacks and

whites, brought suit attacking the LeBlanc Plan as violative of

the one man-one vote rule. Plaintiffs charged also that the

at-large voting scheme impermissibly diluted the votes of

local blacks and asked for appropriate declaratory and inunc-

tive relief.

(5) The District Court, in May of 1974, vacated its judg-

ment of July 26, 1971, which had instituted LeBlanc. The

court proceeded to implement its own reapportionment

scheme which divided the parish into nine singe member

election districts. Bradas v. Rapides Parish Police Jury, 376

F Supp. 390 (W.D. La., May 10, 1974). It did so only after

rejecting four plans submitted jointly by the School Board

and Police Jury, all of which were found to be either insuf-

ficiently prepared or constitutionally defective.

(6) On February 14, 1975, the United States Court of

Appeals for the Fifth Circuit, in Bradas v. Rapides Parish

Police Jury, 508 F. 2d 1105, vacated the district court order

of May, 1974 order. The case was remanded with directions

to reinstate LeBlanc prior to the next election for police

jury and school board scheduled to be held in Rapides

Parish.

7. Meanwhile, Judge Scott's single member district plan

had been put into effect and two black members had been

elected to the Rapides Parish Police Jury and two had been

elected to the School Board.

8. The Court of Appeals decision stated:

A-23

To prevent needless expense and confusion, the

tenure in office of the present members of the

Police Jury and School Board, elected under the 9

member plans of the May 10, 1974 judgment,

shall not be disturbed in the interim.

9. On July 31, 1975, Judge Scott granted the application

of the School Board, the Police Jury, and the plaintiffs for

a compromise settlement of the Bradas case. The effect of

this settlement was to keep in effect the nine single member

district plan. Plaintiffs and both public bodies favored the

plan.

(10) On August 8, 1975 the Court of Appeals granted a

petition for a writ of mandamus, vacating and setting aside

Judge Scott's approval of the compromise settlement. This

order directed forthwith compliance with its mandate of

February 15, 1975.

(11) On September 24, 1975, Judge Scott entered an

order pursuant to the Fifth Circuit mandate. This resulted in

once again activating the LeBlanc multimember district plan.

Police jury elections were held, and the two black members

of the Rapides Parish Police Jury elected under the single

member plan ran as incumbents and were defeated. There

are now no black members on.tiveRapides Parish Police Jury.

(12) On April 2, 1976 the present suit was filed. LeBlanc

is again under attack.

(13) A trial was held on the merits on July 12, 1976.

(14) At this stage, 18 members of the Police Jury had

A-24

been elected and were serving in that capacity. It must be

emphasized that the Police Jury election was held pursuant

to specific and precise court orders. The election of school

board members was scheduled for August, 1976.

(15) Attorneys for plaintiffs and the incumbent school

board (the 9-member board) requested a stay until the dis-

position of the present litigation.

(16) We declined to issue the stay order because of the

Fifth Circuit’s decision in Bradas and the mandamus of

August 7, 1975. The reasons for the denial were set forth in

a written opinion filed immediately after the conclusion of

the July 12th hearing.

(17) On July 29, 1976 the Court of Appeals entered the

following order:

The order of the District Court denying an in-

junction is stayed pending appeal and the cause is

remanded to the District Court for the entry of ap-

propriate orders to effectuate a legal election under

present facts and law, freed from the restraint of a

prior mandamus entered by this Court.

(18) Upon receipt of the July 29, 1976 ruling we imme-

diately granted the stay requested by plaintiffs.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. This is a class action pursuant to 42 U.S.C. §.1983

Plaintiffs seek a declaratory judgment, pursuant to 28 U.S.

C. §2201, a preliminary injunction, a permanent injunction

A-25

and other appropriate relief to enjoin the deprivation under

color of law, by the State of Louisiana and in particular the

School Board and Police Jury of Rapides, Louisiana, of the

rights, privileges and immunities of the plaintiffs and the class

they represent, arising under the Constitution of the United

States.

2. Plaintiffs Thomas R. Parnell, Granvel G. Metoyer, and

Frazier Bell are black citizens of the United States and resi-

dents and registered voters of Rapides Parish, Louisiana.

3. The plaintiffs have standing to sue individually and

properly sue as representatives of the class of black voters of

Rapides Parish, Louisiana.

4. The Rapides Parish School Board is a legislative body

charged with the operation of the public schools in Rapides

Parish.

5. The Rapides Parish Police Jury is the legislative govern-

ing body of the Parish of Rapides, whose duties include the

maintenance of roads, canals, drainage and other public ser-

vices throughout the Parish including the operation of the

Coliseum, operation of the Food Stamp program, and other

functions for which the Police Jury appoints special com-

missions.

6. Defendant Edwin Edwards if Governor of the State of

Louisiana and Defendant Wade O. Martin, now succeeded in

office by Paul Hardy, is Secretary of State of Louisiana.

These are nominal defendants who have certain duties with

respect to the conduct of elections for the Rapides Parish

Police Jury and School Board and are included for purposes

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of relief only. An answer was filed on their behalf by the

Attorney General of Louisiana, waiving appearance and pray-

ing that the court enter such judgment and orders as it de-

termines are necessary and proper in view of the law and evi-

dence controlling.

7. The United States was allowed to file a memorandum

as amicus curiae which supported plaintiffs’ position.

(8) To assure that all parties alleging an interest in this

litigation would have notice and intervene at an early date

without delay of these proceedings, this court issued an order

on April 22, 1976 which was published in the local news-

papers setting a time in which interventions would be con-

sidered.

(9) In response to this order certain individuals who were

then police jurors-elect sought and were allowed intervention,

and upon assuming office were made defendants herein.

(10) The plan challenged herein is a court-ordered plan

instituted by this court in LeBlanc v. Rapides Parish Police

Jury, C.A. No. 13,715 (W.D. La., July 26, 1971), hereinafter

referred to as the LeBlanc plan.

(11) The LeBlanc plan was challenged as racially discrimi-

natory under the standard of White v. Regester, 412 U.S.

755 (1973), invalidated, and a nine single-member district

plan was substituted for it in Bradas v. Rapides Parish Police

Jury, et al, 376 F.Supp. 690."

1. The chronology has been set forth in paragraphs 1-18.No useful pur-

pose would be served by reiterating under these findings.

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(12) The Supreme Court of the United States, in East

Carroll Parish School Board v. Marshall, 1976, U.S. ,96

S.Ct. 1083, 47 L.Ed. 2d 296, defoliates ‘‘the political thicket

in which we have been wandering for some years.” Wallace

v. House (5th Cir., Sept. 17, 1976). The law now is clear.

In fashioning remedial districting schemes, federal district

courts are to order single member plans, absent special cir-

cumstances.

(13) The term “special circumstances” is possessed of no

talismanic significance. It merely represents the Supreme

Court’s recognition that a “singular combination of unique

factors” may sometimes persuade a district court to conclude

that the policies underlying the general preference for single

member districts may be outweighed by grave defects of

single member districting as applied to a particular case.

Wallace v. House, supra.

(14) No showing of special circumstances has been made

to justify such a holding in this case.

(15) Accordingly, plaintiffs must prevail as a matter of

law on the proposition that the LeBlanc Plan is an imper-

missible scheme for a court ordered plan under the standards

of East Carroll, supra, 96 S.Ct. at 1085, and Wallace v.

House, supra.

(16) Cognizant of Justice Brandeis’ well known principles

of judicial self-restraint, see Ashwander v. TVA, 297 U.S.

288, 346-347 (1936) (Brandeis, J., concurring), which in-

cludes the principle that the Court should not decide a con-

stitutional question where there is an alternative non-con-

stitutional basis for disposing of the case, we find that the

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inverest of judicial economy and the need for a prompt final

resolution of this case dictate that the Court also reach the

constitutional question.

(17) Under the totality of the circumstances of the instant

case, the LeBlanc plan with its large multi-member districts

operates to minimize or cancel out the voting strength of the

sizable black minority in Rapides Parish and operates to deny

to them equal access to the political process under White v.

Regester, 421 U.S. 755 (1973).

(18) Within District A reside 23,647 of the Parish’s totai

black population of 32882. Thus, 72% of the total black

population of the Parish resides within this 10-member dis-

trict. (See plaintiffs’ Exh. 2, 1970 Census, Louisiana General

Population Characteristics.)

(19) Examination of plaintiffs’ Exh. 1, 1970 Census for

Rapides Parish by enumeration districts and part of plaintiffs’

Exhibit 11, Census Enumeration District maps for the Parish

of Rapides, reveals that in fact this large black population

contained within District A is exceedingly compact and is

concentrated in an area along the railroad tracks lying in the

northwestern sector of the City of Alexandria and adjacent

areas immediately outside of the City.

(20) There has been a continuing history of state and local

official racial discrimination in Rapides Parish which, prior to

1954 has extended to deprivation of the rights of blacks to

register and vote and to participate in a democratic process.

(21) We take judicial notice of the school desegregation

case against the Rapides Parish School Board and note, as was

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attested to by plaintiffs’ witnesses, that the schools were

historically segregated according to race. The schools were

desegregated step-by-step with each step being compelled by

a specific order of the federal courts. Under freedom of

choice in the late sixties and early seventies, only a handful

of blacks attended the formerly all-white schools and it was

not until imposition of a court-ordered zoning plan that a

reasonably substantial number of blacks were in formerly all-

white schools and it was not until imposition of a court-

ordered zoning plan that a reasonably substantial number of

blacks were in formerly all-white schools and vice versa. The

litigation continues to this day.

(22) The court notes that there were a number of state-

wide obstacles to black registration and voting which were in

operation until declared invalid in Louisiana v. United States,

380 U.S. 145 (1965). Until invalidated by the Voting Rights

Act of 1965, a literacy and constitutional interpretation test

was in force.

(23) The effects of these obstacles can be seen from plain-

tiffs’ Exhibit 9, Louisiana Board of Registration Report,

showing black and white registration at six-month intervals

since 1958. This exhibit shows that.as of November, 1964,

there was 36,197 whites registered in the Parish and by

November, 1967 there were 44,336 whites registered—an in-

crease of only 10% from 1964 to 1967. In November, 1964,

only 3,829 blacks were registered, whereas in November,

1967, 8,675 olacks were registered~an increase of 127%.

From these figures it can also be calculated that, for example,

in November of 1964 blacks comprised only 11% of the total

Parish electorate, whereas in 1967 they comprised 20% of

that electorate.

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(24) There are debilitating vestiges of the past which pre-

clude blacks from participating on an equal basis in large

multi-member districts. Plaintiffs’ expert witness, Dr. Gor-

don Henderson, analyzed voting returns, particularly from

the recent Police Jury elections under the LeBlanc Plan (see

plaintiffs’ Exhs. 47, and 14) together with registration

figures by race and by precincts,and determined that statis-

tically there was a 98% probability of bloc voting among

racial lines where a black candidate opposed a white candi-

date in Rapides Parish. Dr. Henderson did this analysis with

the assistance of a computer, running two independent

statistical analyses-the Pearson Correlation analysis and a

retrogression analysis which statistically allows prediction

from evenly mixed precincts. The returns, cf course, show

that black candidates occasionally receive some votes in

100% white precincts, but this is not particularly significant

when the returns are viewed as a whole and especially are not

significant in view of the computer analsys which takes all

of the data into account, and using accepted statistical

methods shows the level of bloc voting present here.

(25) For all practical purposes, historically Rapides Parish

is a one-party Parish, with nomination by the Democrat

Party tantamount to election. Neither the Party nor a

dominant white slating organization has nominated, endorsed

or slated any blacks.

(26) The constitutional insufficiency of an at-large or

multi-member district arrangement is not demonstrated

solely by showing that the cognizable minority has not been

able to elect officials in the multi-member district in mathe-

matical proportion to its voting potential. White v. Regester,

412 U.S. 755, 766 (1973); Whitcomb v. Chavis, 403 U.S.

A-31

124, 149; Zimmer v. McKeithen, supra, at 1305. Instead, to

demonstrate unconstitutionality:

* * *Plaintiffs’ burden is to produce evidence to

support findings that the political processes leading

to nomination and election were not equally open

to participation by the group in question - that its

members had less opportunity than others in the

district to participate in the political process and to

elect legislators of their choice. Whitcomb v.

Chavis, supra., at 149-150. White v. Regester,

supra., at 766.

(27) Whether a particular multi-member or at-large ar-

rangement violates this standard is to be determined from the

totality of circumstances of the particular case. In examining

the totality of circumstances there is a panalopy of factors

which have been relevant to this determination; however, the

presence or absence of any particular factor or set of facts

standing alone is not dispositive of the issue. Rather, the

examination must “represent * * * a blend of history and in-

tensely local appraisal of the design and impact of the multi-

member district in light of past and present reality, political

and otherwise.” White v. Regester, supra, at 769-770.

(28) Plaintiffs have met their burden of proof, and the

multi-member districting arrangement under the LeBlanc

plan within the framework of facts and circumstances pecu-

liar to the Parish of Rapides operates impermissibly to dilute

or cancel out the voting strength of the black minority.

(29) The ultimate question is, of course, how these for-

mal structures (multi-member districts, majority run-off),

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informal structures (such as the one-party system), and pollit-

ical context (history of racial discrimination, etc.) operate

in combination. The evidence demonstrates that in combina-

tion, these factors operate to minimize or cancel out the vot-

ing strength of the black minority in the parish and thereby

deny to them equal access to the political process. The ex-

periences of blacks running in the milti-member districts

under the LeBlanc Plan show that these factors, particularly

in combination with racial bloc voting, effectively denies

blacks access to the political process. The predictable out-

come is that blacks are consistently defeated in the multi-

member districts. This is no accident, nor is the mere func-

tion of losing fair elections. Rather, given the totality of

circumstances of the political context which includes bloc

voting, a one-party system, and the vestiges of a long history

of racial discrimination, the LeBlanc plan clearly stacks the

deck against blacks by the use of milti-member cistricts with

a majority run-off requirement.

(30) Plaintiffs are entitled to judgment on both of the

grounds urged. The proper standard to be applied is actually

the East Carroll rule, since the plan in question-the LeBlanc

Plan-is a court-ordered plan. However, we have made find-

ings in the alternative that plaintiffs have met their burden

under White v. Regester to demonstrate that the plan is also

violative of the constitutional standards.

(31) The Supreme Court in Whitcomb v. Chavis, 403 U.S.

124, held that a district court judgment approving an appor-

tionment plan is not binding on an application for reappor-

tionment four years later, after initial decisions on constitu-

tional apportionment had undergone considerable refinement

in intervening Supreme Court decisions. In the instant case

A-33

there has been a significant change in law, in that since both

the LeBlanc and Bradas cases, the United States Supreme

Court decided East Carroll Parish School Board v. Marshall,

and held for the first time that a court-ordered plan which

had been submitted by one of the parties was not subject to

Section 5 scrutiny but was subject to the single-member dis-

trict rule of Connor and Chapman. The amicus brief of the

United States discusses this development in detail, and it

will not be repeated here.

(32) The Fifth Circuit decision (Bradas v. Rapides Parish

Police Jury, et al) which defendants urge bars the present

action was decided on an inadequacy of proof. The Fifth

Circuit decision noted specifically that the record below was

practically devoid of the type of evidence required in these

cases: ‘‘Consideration of the evidence below in light of these

factors emphasizes the dearth of appellees’ proof.’’ Under

these circumstances, particularly since plaintiffs has demon-

strated that such proof can be presented, it can hardly be

said that the class of black voters was forever foreclosed.

Further, the East Carroll case was pending in the United

States Supreme Court when Bradas was decided, and had the

Bradas plaintiffs sought review in that court, it is highly

likely that the Fifth Circuit decision would have been over-

turned when the East Carroll opinion was handed down, as

was done, for example, in Wallace v. House, U.S. , 44

U.S. ,44U.S. Law Week 3607.

WHERE DO WE GO FROM HERE?

The multi-member districts must be disestablished. Le

Blanc is out.

A-34

Neither courts nor police juries nor school boards are fur-

nished with any specialized caliphers which enable them to

extract from the general language of the law any mathemati-

cal formula which establishes what range of percentage devia-

tions is permissible. Surely, the plan approved in Bradas

(376 F. Supp. 690 at 694) which provides for nine single

member districts with a maximum deviation of 2.2%

achieves the primary goal of one man-one vote. When tested

against proportional norms it affords to all groups a fair

chance to realize full voting potential. On July 31, 1975,

both public bodies favored this specific nine single member

concept. The plan preserves to a substantial degree present

lines and geographic boundaries. We adopt and order the

implementation of the nine-member plan? for both public

bodies.

WHEN?

The School Board presently operates under the plan. The

members serve staggered terms. The elections which had

been scheduled for August 14, 1976 under the LeBlanc plan

have been enjoined. In lieu thereof an election is to be

scheduled under the nine-member plan. A date will be set

when and if this judgment becomes final.

The police Jury elections have been held under the Le

Blanc plan. This election was mandated by federal court

orders. To prevent needless expense and confusion, the ten-

ure in office of the present members of the Police Jury (elec-

ted pursuant to federal court orders) is not to be disturbed.

The nine-member plan is to be activated for the Police Jury

2. Statistics and boundaries appear at 376 F.Supp. at 694, and in the

exhibits.

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at the next regular election for Police Jury scheduled to be

held in the Rapides Parish.

THUS DONE AND SIGNED in Chambers at Lake Charles,

Louisiana, on this the 30th day of September, 1976.

s/ Edwin F. Hunter, Jr.

EDWIN F. HUNTER, JR.

UNITED STATES SENIOR

JUDGE

-

A-36

JU DGMENT- DATED SEPTEMBER 30, 1976

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

THOMAS R. PARNELL, ET AL

VS. CIVIL ACTION NO. 760364

RAPIDES PARISH SCHOOL BOARD,

ET AL

JUDGMENT

Pursuant to written memorandum this day entered,

IT IS ORDERED that multi-member districts be dises-

tablished. The nine single-member district plan in Bradas

(376 F.Supp. 690 at 694) is approved and is to be imple-

mented. The tenure in office of the present members of the

Police Jury (Elected in strict conformity with federal court

orders) is not to be disturbed, but the nine-member plan is

to be activated at the next regular election for Police Jury

scheduled to be held in Rapides Parish.

Counsel for plaintiffs is to be awarded attorney's fees in

due course. 42 U.S.C.A. 1973I(e).

SIGNED this 30th day of September, 1976, at Lake

Charles, Louisianz.

s/ Edwin F. Hunter, Jr.

EDWIN F. HUNTER, JR.

UNITED STATES SENIOR

JUDGE

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APPENDIX C - JUDGMENT DATED MARCH 20th, 1978

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

THOMAS R. PARNELL, ET AL

VS. CRIMINAL ACTION NO. 760364

RAPIDES PARISH SCHOOL BOARD,

ET AL

JUDGMENT

In view of the mandate of the United States Court of

Appeals for the Fifth Circuit,

IT IS ORDERED that multi-member districts be dises-

tablished. The nine-member single-member district plan

in Bradas (376 F.Supp. 690 at 964) is approved and is to be

implemented.

IT IS FURTHER ORDERED that elections for all seats on

the Police Jury be conducted in 1978 on the same schedule

as set by Louisiana Law for election of School Board mem-

bers. The Police Jury so elected shall be issued their com-

missions and assume office as soon as these elections are

final.

IT IS FURTHER ORDERED that the mandate of this

Court holding in abeyance the election of School Board

members is recalled. School Board elections shall be held on

schedule in 1978.

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SIGNED this 20th day of March, 1978, at Lake Charles,

Louisiana.

_ 8/ Edwin F. Hunter, Jr.

EDWIN F. HUNTER, JR.

UNITED STATES DISTRICT

SENIOR JUDGE