Opposition — McDaniel v. Sanchez

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Alpha Law Brief Co., One Main Plaza, No, 1 Main Si., Houston, Texas 77002

80-180 SEP8 Ic

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IN THE

Supreme Court of the United States

October Term, 1980

No.

W.C. McDANIEL, ET AL..,

Petitioners

V.

JOSE SANCHEZ, ET AL.,

Respondents

RESPONSE IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

TEXAS RURAL LEGAL ADD, INC.

504 Sidney Baker St.

Kerrville, Texas 78028

(512) 896-4316

ROBERT J. PARMLEY

Attorney for Respondents

Davip G. HALL

TEXAS RURAL LEGAL ADD, INC.

103 E. Third St.

Weslaco, Texas 78596

i

QUESTIONS PRESENTED FOR REVIEW

1. Did the Court of Appeals err in holding that a pro-

posed reapportionment plan, submitted by a local legisla-

tive body in response to an invalidation of a prior plan,

does not lose its status as a legislative rather than court-

ordered plan for purposes of the preclearance provisions

of the Voting Rights Act, 42 U.S.C. 1972(c) merely

because it is the product of litigation conducted in a

federal forum?

2. Did the Court of Appeals err in holding that a new

reapportionment plan enacted by a state, including one

purportedly adopted in response to the invalidation of the

prior plan by a federal court, will not be considered

effective as law until it has been submitted and has re-

ceived clearance pursuant to the preclearance provisions

of the Voting Rights Act, 42 U.S.C. 1973(c)?

ii

TABLE OF CONTENTS

Page

Ree GP PRU TEBOMRILIES .n wc ccc ccc ccc c cc ncens ii

STATEMENT OF THE CASE ....................0.. 1

SUMMARY OF THE ARGUMENT .................. 3

REASONS FOR DENYING THE WRIT ..............

I. No Significant Conflict Exists Among The Circuits

Below In Differentiating Legislative Apportionment

Plans Pursuant to Wise and Court-Ordered Plans

Pursuant to East Carroll. .......... 6.00 cee eee 4

II. The Instant Case Does Not Involve Issues Of

National Significance. ................0eeeeeee 5

MS Caw stdesrecssccceccescses 15

LIST OF AUTHORITIES

CASES Page

Burns v. Richardson, 384 U.S. 73 (1966) ............... 7,8

Connor v. Coleman, 440 U.S. 612 (1979) ............4.. 4

Dowlen v. Rigsby, 43 S.W. 271 (Tex. Ct. Civ. App. 1897) 13

East Carroll Parish School Board v. Marshall, 424 USS.

Ene aban eebrsiapececccccevess cited throughout

Lipscomb v. Wise, 399 F.Supp. 782 (N.D. Tex. 1975) ... 9

Lipscomb v. Wise, 551 F.2d 1043 (Sth Cir. 1977) ........ 9

Marshall v. Edwards, 582 F.2d 927 (1978), cert. den. 442

es Ces a aba cé bbs vecvecssecenes 3,5,8

Wilson v. Weller, 214 S.W.2d 473 (Tex. Ct. Civ. App.

DU UGMEMAEE SEs cab cdecdorccrererviccscoesccvccess 12, 13,14

Wise v. Lipscomb, 437 U.S. 535 (1978) ........... cited throughout

Zimmer v. McKeithen, 467 F.2d 1381, 1383 (Sth Cir. 1973) 8

Zimmer v. McKeithen, 485 F.2d 1297, 1301 (1973) ...... s

TEXAS CONSTITUTION

CI, BM nec tees pbeccccccccresscccscvess 13

TEXAS ELECTION CODE

RE ES A ee 12

MISCELLANEOUS

U.S. Code, Cong. & Admin. News, 94 Cong., Ist Sess. 1975,

Vol. 2, p. 784, 785, Sen. Rpt. No. 94-295, p. 18, 19 .... 15

Supreme Court of the United States

October Term, 1980

No.

W.C. McDANIEL, ET AL.,

Petitioners

V.

JOSE SANCHEZ, ET AL.,

Respondents

RESPONSE IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Respondents, Jose Sanchez, Israel Trevino, Natividad

De La Rosa, and Santos De La Rosa and the classes they

represent, respectfully pray that Petitioners’ Petition For

Writ Of Certiorari to review the judgment and opinion

of the United States Court of Appeals for the Fifth Cir-

cuit entered on April 14, 1980, in Fifth Circuit Cause

No. 80-1108, be denied.

STATEMENT OF THE CASE

Pursuant to Rules 22 and 34.2 of the Supreme Court,

the Respondents, while not concurring totally with the

Petitioners’ characterization of the facts, will not restate

2

the case beyond correcting the following inaccuracies

and omissions:

Testimony from the December 10, 1979 hearing on

the plan revealed that the Petitioners, in fulfillment of

their legislative duty to reapportion, decided to employ

a statistician, Robert Nash, Ph.D., to assist them in the

drafting of a new redistricting plan, (R. 8, 21, 22).

After hiring Dr. Nash, the Petitioners gave him instruc-

tions on how to draft the redistricting plan, which he

followed, (R. 22, 25, 26). After at least three meetings

with the Petitioners, in both formal Commissioners Court

meetings and informal meetings, Dr. Nash completed the

plan, (R. 23, 24). He then presented the plan to the

Commissioners Court at a formal meeting called in the

ordinary course of that legislative body’s business. After

explaining the plan to the Petitioners, Dr. Nash was asked

by the Petitioners to make a correction, which he did,

(R. 25, 26). The Petitioners then officially adopted the

plan at a formal meeting as the plan they would submit

to the district court, (R. 40), and the plan they would

officially adopt if the district court permitted them to do

so, (R. 40, 41). When asked why the Commissioners

Court did not consider either of Respondents’ plans, the

County Judge stated the Commissioners Court would

rather “redistrict ourselves” if given the opportunity by

the district court, (R. 42, 43).

On January 14, 1980, the district court entered an

order adopting the Petitioners’ plan without modification.

The district court found the plan satisfied the principle

of one-person, one-vote but made no finding in relation

to the dilution of minority voting rights and at the same

time found that Section 5 preclearance was unnecessary,

(Appendix, p. A-22).

3

SUMMARY OF THE ARGUMENT

No significant conflict exists between the courts below

in differentiating legislative apportionment plans pursuant

to Wise v. Lipscomb, 437 U.S. 535 (1978) and court-

ordered apportionment plans pursuant to East Carroll

Parish School Board v. Marshall, 424 U.S. 636 (1976).

Indeed, the Court of Appeals for the Fifth Circuit is so

certain of the difference between Wise and East Carroll,

as applied to the facts of the instant case, that they

summarily reversed the district court and denied a re-

hearing and a rehearing en banc. Because there is no

significant confusion of the law in the courts below and

because the facts of this case do not raise any new issues

previously unresolved by this Court, this case cannot be

considered to be of national importance and certiorari

should be denied.

REASONS FOR DENYING THE WRIT

The Petitioners argue that sound judicial discretion

dictates that a writ of certiorari should be issued because

of a perceived inability on the part of the Court of

Appeals to accurately distinguish between a court-ordered

plan and a legislative or court-adopted plan in light of

this Court’s rulings in Wise v. Lipscomb, supra, and East

Carroll Parish School Board v. Marshall, supra. Addition-

ally, the Petitioners argue that this apparent confusion

will generate even more uncertainty in the wake of 1980

reapportionment litigation. After a brief comparison of

the instant case to East Carroll, Wise and Marshall v.

Edwards, 582 F.2d 927 (1978), cert. den. 442 U.S. 909

(1979), the Petitioners conclude that the present case

involves a court-ordered plan which is not subject to the

4

Section 5 preclearance requirement as the Petitioners

interpret the legislative history of the Voting Rights Act.

Respondents disagree with this analysis and in support

thereof offer the following points and authorities:

I.

No Significant Conflict Exists Among The Cir-

cuits In Differentiating Legislative Apportionment

Plans Pursuant To Wise And Court-Ordered Plans

Pursuant to East Carroll.

After this Court’s per curiam decision in East Carroll,

confusion existed over the definition of a legislative appor-

tionment plan and a court-ordered apportionment plan.

The confusion partially was a result of this Court’s brief

discussion of a court-ordered plan vis-a-vis a legislative

plan in dicta found in footnote 6 of East Carroll. Since

the decision in East Carroll, however, this Court has

clarified the pre-existing confusion, Wise, supra, and Con-

nor v. Coleman, 440 U.S. 612 (1979). In Wise, a de-

cision rendered just two terms ago, this Court, in a lengthy

opinion, explained the difference between the two types

of election plans, providing much needed guidance to

the courts below.

The Petitioners argue that the Court of Appeals for the

Fifth Circuit has incorrectly interpreted East Carroll and

Wise and that therefore this Court should intervene and

supply assistance. The Petitioners are no. arguing that a

conflict exists among the various circuit courts of appeal.

Indeed, this researcher could find no cases outside of the

Fifth Circuit that discuss the difference between a court-

ordered apportionment plan and a legislative apportion-

5

ment plan in relation to Wise and East Carroll. If any

confusion exists, then, the confusion must be found within

the Fifth Circuit itself. However, with the exception of

Marshall v. Edwards, 582 F.2d 927 (Sth Cir. 1978)

cert. den. 442 U.S. 909 (1979), there have been no Fifth

Circuit cases that were decided with a dissenting vote on

the issue of whether or not an apportionment plan is

court-ordered or legislative in character. The instant case

is typical. The Fifth Circuit in a per curiam opinion, sum-

marily reversed the district court’s categorization of the

instant plan as a court-ordered plan; a categorization

reached simply because the plan was prepared during the

course of litigation. A rehearing and a rehearing en banc

was denied. Apparently, none of the twenty-four judges

in active service on that court perceived any confusion

with regard to the issue at hand. The Petitioners’ argu-

ment for clarity in the midst of what they perceive as

confusion amounts to nothing more than an illusory

argument which will not support a grant of certiorari.

II.

The Instant Case Does Not Involve Issues of

National Significance.

The Petitioners’ argument-that this case presents issues

of national significance is premised on their claim that

confusion exists in the courts below, which this Court

should clarify. As stated earlier, the confusion in the

courts below created by this Court’s dicta in East Carroll

has been clarified by this Court’s later ruling in Wise.

Hence, this case lacks national significance and certiorari

should be denied. And, assuming, arguendo, that a con-

flict exists in the courts below, the issues and facts raised

6

by this case would be of no assistance in clarifying Wise

or East Carroll.

The issue raised on appeal below was restricted to the

district court’s order dated January 10, 1980, wherein the

court reasoned that because the “Kleberg County Com-

missioners’ Court did not reapportion the Commissioners’

Court precincts on their own authority, but instead did

so in response to a court order,” the reapportionment plan

“is a court-ordered plan rather than a court-adopted plan

and therefore is not subject to the preclearance provisions

of the Voting Rights Act.” (Emphasis added) (Appendix,

district court’s order, p. A-23; also see framing of the

issue On appeal by the Court of Appeals, p. A-27). It

was this issue alone that the Court of Appeals decided

and it is this issue alone that was raised by the district

Court’s order. (Appendix, p. A-23, A-27).

The Petitioners argue in their petition matters which

were never considered in the district court’s order and the

Court of Appeals’ decision. (Appendix, p. A-21, A-26).

The Petitioners apparently have chosen to expound on new

theories of relief which may prove more fruitful to them

at this juncture of the case. This type of free-for-all appel-

late approach urged by the Petitioners should be dis-

couraged because it does a disservice to the district court

and the Court of Appeals as well as to the integrity of

the appellate process. Indeed, Justice White, when an-

nouncing the decision of this Court in Wise, declined to

consider the impact of Section 5 to that case, where the

State of Texas becarne subject to the Voting Rights Act

while the case was on appeal, because the “Court of

Appeals did not deal with it one way or another.” Wise,

supra, 437 U.S. at 547. This decision was supported by

7

all of the Justices and the Chief Justice of this Court.

Wise, supra, 437 U.S. 547, 549, 550. Similarly this Court

should decline the petitioners’ invitation to review matters

of the first instance which were not presented to the

district court and the Court of Appeals. For these reasons,

Petitioners’ request for certiorari should be denied without

further consideration.

However, should this Court desire to pursue issues not

previously determined by the courts below then Respond-

ents would contend that this case is controlled by the

decision in Wise v. Lipscomb, supra, not by the dicta

found in a footnote in this Court’s per curiam decision

in East Carroll.

In East Carroll, the district court adopted an at-large

reapportionment plan without discussing the relative

merits or demerits of a single-member plan. This Court

held that when United States district courts are “put to

the task of fashioning reapportionment plans to supplant

concededly invalid state legislation”, single-member dis-

tricts are to be perferred absent unusual circumstances.

And, that “in shaping remedial relief” the district court

abused its discretion in not initially ordering a single-

member reapportionment plan, East Carroll, supra, 424

U.S. at 639, 640. Additionally, in dicta found in a foot-

note in East Carroll, the applicability of Section 5 of the

Voting Rights Act to legislative and court-ordered elec-

tion plans is discussed. This dicta apparently is the result

of issues raised solely in the amicus brief of the United

States, which neither of the parties briefed or argued.

In the footnote discussion of legislative plans and court-

ordered plans no mention whatsoever is made of Burns v.

Richardson, 384 U.S. 73 (1966). Burns involved a legis-

8

lative apportionment plan where the legislative body

lacked authority to enact the plan, consequently, the plan

had to be implemented by court order. Because of the

failure of the East Carroll per curiam opinion to cite

Burns, Respondents agree with Justice Powell in his con-

curring opinion in Wise, that East Carroll should be read

as turning on its peculiar facts, Wise, supra, 437 US.

at 549,

Several facts in East Carroll which were determinative

of that plan becoming a court-ordered plan do not exist

in the instant case. First, the submission of the plan was

“precipitated” by the court after the 1970 census was

published and was not the result of having the existing

apportionment scheme declared unconstitutional, as in

the instant case, thereby increasing the level of judicial

involvement in East Carroll, Zimmer v. McKeithen, 485

F.2d 1297, 1301 (1973). Second, the plan in East

Carroll that was submitted was not a legislative plan, but

rather a resubmission of the judicially-inspired “consent

decree” plan of 1968, unlike the legislatively-created plan

in the instant case, Marshall v. Edwards, 582 F.2d 927,

929 (1978), cert. den. 442 U.S. 909 (1979). Third, the

plan in East Carroll that was submitted was not adopted

by the legislative body, as in the instant case, (R. 40,

41); instead, it was endorsed by only a few members of

the legislative body, Zimmer v. McKeithen, 467 F.2d

1381, 1383 (Sth Cir. 1973). And, finally, the enabling

legislation which would have permitted the parish police

jury to propose an at-large system was opposed by the

Attorney General under Section 5; hence, the jury could

not propose a constitutionally valid plan nor did the jury

have the authority to enact a constitutionally valid plan.

Here, however, the Petitioners hired an expert, consulted

9

with him and were the architects of a plan that the district

court acquiesced in adopting. Furthermore, the Petitioners

had the authority to enact the plan, as is more fully

explained below.

The Petitioners also argue that Wise v. Lipscomb, 437

U.S. 535 (1978) does not apply to the instant case. In

Wise, an action was brought by certain minority-race

residents of Dallas, Texas, against the mayor of Dallas

and members of the Dallas city council. The district court

held that the at-large system of electing city council mem-

bers, as mandated in the city charter, unconstitutionally

diluted the voting strength of black citizens. The court

then afforded the city council an opportunity to prepare

a constitutional reapportionment plan. Thereafter, the city

council proposed an ordinance that would provide for

eight council members to be elected from single-member

districts and for the remaining three members, including

the mayor, to be elected at large. The district court then

approved the plan and the city council formally enacted

the ordinance. Later the district court issued an opinion

sustaining the council’s plan as a valid legislative act, not-

withstanding state constitutional and statutory provisions

requiring a referendum vote to amend the city charter.

Lipscomb v. Wise, 399 F.Supp. 782 (N.D. Tex. 1975).

On appeal, however, the Court of Appeals reversed, hold-

ing that the district court had erred by evaluating the

council’s actions only under constitutional standards

rather than also applying the principle that absent excep-

tional circumstances, “judicially imposed” sreapportion-

ment plans should employ single-member districts. Lips-

comb v. Wise, 551 F.2d 1043 (Sth Cir. 1977). The

Supreme Court reversed and remanded. Although unable

to agree on an opinion, six members of the Court agreed

10

that the “eight/three” ordinance was a “legislative plan”

to be judged under the relatively more lenient constitu-

tional standards, rather than a “judicial plan”, subject to

the stricter standards requiring single-member districts

in the absence of special circumstances.

Justice White announced the judgment of the Court,

and in an opinion joined by Justice Stewart, expressed the

view that when the district court invalidated the pro-

visions of the Dallas city charter mandating at-large

council elections, the city had the duty to devise a sub-

stitute plan rather than to leave the matter to the district

court. The court also found that the district court was

entitled to consider the city council’s substitute plan under

the principles applicable to legislatively adopted reappor-

tionment plans rather than judicially imposed plans.

Furthermore, the Court observed that even though the

council itself had no power to change the at-large system

as long as the city charter was declared unconstitutional,

the council was free to exercise its inherent legislative

powers by enacting the eight/three plan. In conclusion

this Court found that council’s ordinance should not be

regarded as a court-ordered plan subject to a level of

scrutiny more stringent than that required by the Con-

stitution.

Justice Powell, joined by Chief Justice Burger, and

Justices Blackmun and Rehnquist, concurring in part and

concurring in the judgment, agreed that the reapportion-

ment plan adopted by the Dallas City Council was a

“legislative” plan for purposes of review by a federal

court. They further expressed the view that the plan was

“legislative” regardless of whether the council had the

power under state law to reapportion itself, the essential

1]

point being that the city council had exercised a legisla-

tive judgment which reflected the policy choices of the

elected representatives of the people rather than the

directive of a federal court.

Justice Marshall, joined by Justices Brennan and

Stevens, dissenting, expressed the view that since the

Dallas city council had no authority under state law to

reapportion itself, the plan ordered by the district court

Should have been evaluated in accordance with the federal

common law of remedies applicable to judicially devised

reapportionment plans. Even if the plan were properly to

be viewed as a “legislatively enacted” plan, it should not

be approved, since the nature of the underlying violation

invalidating the original apportionment system under the

city charter was the dilution of the voting power of a

racial minority resulting from the effects of at-large vot-

ing, and thus it was inappropriate either for the local

legislative body or a court to respond with more of the

same.

The facts found in the majority opinion in Wise

parallel the facts in the instant case. First, when the

district court found the Kleberg County apportionment

plan unconstitutional, the court, citing Wise, deferred

judicial imposition of a plan pending action by the legis-

lative body to reapportion itself. The legislative body

in the instant case responded to its duty and decided,

when given the opportunity, to “redistrict ourselves”.

(Testimony of Kleberg County Judge, W. C. McDaniel,

R. 43). The Commissioners Court then adopted a plan

for presentation to the district court as the plan they

officially wanted and would, if permitted by the district

court, adopt, (R. 40, 41). Second, the plans presented

12

in the instant case and in Wise were not in violation of

any federal law, unlike the Section 5 opposition in East

Carroll. Third, the Commissioners Court had the author-

ity and enabling legislation to propose the plan they did

and to act as the city council had in Wise.

Petitioners argue that Tex. Elec. Code Ann., art. 2.04,

which pertains to the redrawing of election precincts,

constitutes a restriction on the powers granted the Com-

missioners Court in the Texas Constitution. Specifically,

Petitioners argue that Art. 2.04 of the Texas Election

Code prohibits the redrawing of election precincts except

in a July or August term of the Commissioners Court,

and since their plan was proposed in November, the Com-

missioners Court was without authority to act. The Peti-

tioners rely on Wilson v. Weller, 214 S.W.2d 473 (Tex.

Ct. Civ. App. 1948) for authority.

Petitioners in their argument overlook the fact that

the Commissioners Court redefined the county precinct

lines in the instant case without modifying the boundaries

of the election precinct lines, (R. 50). In Texas, “com-

missioner court precincts” or “county precincts” are com-

posed of electoral sub-units, known as “election precincts”

or “voting precincts”. Pursuant to Art. 5, Section 18 of

the Texas Constitution, “commissioners court precincts”

or “county precincts” are creations of the Texas Constitu-

tion while “election precincts” or “voting precincts” are

statutorily created. Texas Elec. Code Ann., art. 2.04.

Since the Commissioners Court did not redefine the

boundaries of the election precincts, they were not re-

stricted by Art. 2.04 of the Texas Election Code and were

free to act under Art. 5, Section 18 of the Texas Con-

stitution.

13

Under Art. 5, Section 18 of the Texas Constitution

the Commissioners Court is vested with the power and

authority to divide the county “from time to time, for the

convenience of the people, into precincts”, no more than

eight and no less than four. This provision of the Con-

stitution, among other things, applies to the redistricting

of county precinct lines. As the Court of Civil Appeals

said in Dowlen v. Rigsby, 43 S.W. 271 (Tex. Ct. Civ.

App. 1897); “When the (Commissioners) court was once

established, no legislation was needed to enable it to

exercise the powers given by the above provision (Art. 5,

Section 18 of the Texas Constitution), to divide the

county into precincts. The direction is plain and simple,

and without condition or restriction, except that as to

the number of precincts.” Ibid. at 273. To date, this

interpretation of the law is still in effect. Even the Peti-

tioners’ own authority, Wilson, supra, makes it clear that

the Commissioners Court had the power and authority

to act in the instant case.

In Wilson, the Commissioners Court redistricted two

commissioners court precincts as well as two voting pre-

cincts on June 7, 1948. An action was brought challeng-

ing the authority of the Commissioners Court to issue

the redistricting order. The Court of Civil Appeals upheld

the issuance of an injunction by the District Court and

found that the redistricting was improper because the

Commisioners Court not only redistricted the county

precincts, but also redistricted the voting precincts. In its

opinion, the Court of Civil Appeals cited Rigsby, saying:

Appellants rely upon State ex rel. Dowlen v.

Rigsby, 17 Tex. Civ. App. 171, 43 S.W. 271,

opinion by Judge Williams, who afterwards served

with distinction as a member of the Supreme Court.

14

In the case cited, it was held that under the constitu-

tional grant of power contained in Article 5, section

18 of the Texas Constitution, Vernon’s Ann. St., a

commissioners’ court could divide the county into

commissioners’ precincts and justice precincts when-

ever said court was of the opinion that the con-

venience of the people would be served thereby. In

the Rigsby case it does not appear that election

precincts were affected by the order there involved,

or that the commissioners’ court sought to transfer

territory from one voting precinct to another. In the

present case election precincts are involved and the

order of June 7, 1947, insofar as it relates to election

precincts is ineffective and void.

Wilson, supra, at 474.

Finally, the Petitioners argue that the legislative history

of the Voting Rights Act indicates that the plan in the

instant case should not be subject to Section 5 preclear-

ance. Respondents disagree. The legislative intent behind

the enactment of Section 5 of the Voting Rights Act was

that cases like the instant one be precleared pursuant to

Section 5 rather than escape preclearance under equitable

jurisdiction of a district court. This is clearly expressed

in the Senate Report on the Voting Rights Act Extension,

which states in part:

Thus, for example, where a federal district court

holds unconstitutional an apportionment plan which

predates the effective date of a coverage under the

Voting Rights Act, any subsequent plan ordinarily

would be subject to Section 5 review. In the typical

case, the court either will direct the governmental

body to adopt a new plan and present it to the court

for. consideration or else itself choose a plan from

among those presented by various parties to the liti-

gation. In either situation, the court should defer

15

its consideration of—or selection among—any plans

presented to it until such time as these plans have

been submitted for Section 5 review. Only after such

review should the district court proceed to any

remaining fourteenth or fifteenth amendment ques-

tions that may be raised.

U.S. Code, Cong. & Admin. News, 94 Cong., Ist Sess.

1975, Vol. 2, p. 784, 785, Sen. Rpt. No. 94-295, p.

18, 19.

Certainly it was never intended by the authors of the

Voting Rights Act that a plan could be adopted by a

district court without a finding on the issue of dilution

by either the district court or the United States Attorney

General as in the instant case.

CONCLUSION

For the reasons set out above, Respondents pray that

the petition for writ of certiorari be denied.

Respectfully submitted,

TEXAS RURAL LEGAL AID, INC.

504 Sidney Baker St.

Kerrville, Texas 78028

(512) 896-4316

ROBERT J. PARMLEY

Attorney for Respondents

Davip G. HALL

TEXAS RURAL LEGAL AID, INC.

103 E. Third St.

Weslaco, Texas 78596