UNNUMDE~E.D.
(78
LE.RYE~).
I
II
I
I
I
I
II
I
DANIEL
~. BENSOl'j
• TrOllN" ..T L.....
IN THE\UNITED STATES SUPREME COURT / / ~
NO.
REV. ROY JONES, GONZALO GARZA, EUSEBIO MORALES,
and Intervenor, ROSE WILSON, IndivI~ually and as
Representatives of the Black and Mexlcan-Americall
Voters of Lubbock, Texas
Movants
VS.
THE CITY OF LUBBOCK, TEXAS, and the
Mayor and City Council thereof, BILL McALISTER,
ALAN HENRY, JOAN BAKER, M. J. "BUD" ADERTON, and
E. JACK BROWN, all in their official capacIties as membera
of the Clty Council of L~bbock, Texas
Respondents
RESPONSE IN OPPOSITION TO MOTION FOR INJUNCTION PENDING APPEAL
PRESENTED TO MR. JUSTICE WHITE
ASSOCIATE JUSTICE OF THE SUPREME COURT
CIRCUIT JUSTICE FOR THE FIFTH CIRCUIT
SHELTON & JONES
TRAVIS D. SHELTON
T. DALE JONES
1801 Avenue Q
Lubbock, Texss 79401
JOHN C. ROSS, JR.
CITY ATTORNEY
P.O. Box 2000
Lubbock, Texa. 79457
ATTORNEYS FOR RESPONDENTS
SepteMber 27, 198J
JAMES P. BREWSTER
CIVIL TRIAL ATTORNEY
(806) 762-6411, Ext.
22~5
I
I
I
I
I
I
I
I
I
I
I
I
I
V
IN TH~ U~ITED STATES SUPREME COURT
'0.
RE\'. ROY
:,E, GOI'ZALO GI.P.ZA, EUSES 0 t~C?ALES,
and
ntervenor, ROSE 10.' LS "
lndlvldua
~ and as
Representatlves of the Black and Mexlcan-Arrerlcan
Voters of Lubbock, Texas
I~ovants
VS.
E.
THE CIT\' or LUBBOCK, TEXAS, and the
";ayor and Clt. Councd thereof, RILL ,J,cALISTER,
ALAN HENRY, JOAN BAKER, M. J. "BUD" ADERTON, and
JACK BROWN, all ln their offlclal capaclties as members
of the Clty Councll of Lubbock, Texas
Respondents
RESPO'SE
IN OPPOSITION TO ,,"OTlON rOR
FRESEr\ ED TO ''oR.
JUSTICE or
CIRCUIT JUSTICE rOR
~SSOCIATE
INJUNCTION PENDING APPEAL
JUSTICE WHITE
THE SUPREME COUR
THE rIfTH CIRCUIT
SHEL TON 6 JONES
TRAVIS D. SHELTON
T. DALE JONES
, 801 Avenue
u
ock,
exas 79401
JOHN C. ROSS, JR.
CITY ATTORNEY
P.O. Box 2000
Lubbock, Texas 79 57
~TT
CIVIL
P.
E'STER
R.:'
A
CPO E'
~P06.
i62-6L
a
JAM~S
R~EYS
rOR RESPO~D[NTS
Seeter-ber 27, 1983
c
,Ex.
:~i;
I
I
I
I
I
I
I
I
II
II
I
II
I
I~
THE UNITED STATES
SUPRE~E
CCURT
'0.
.. E\'. ROY -0 ES, GO'V 0 GARU, EUSEBIO ~ GRALES,
a-.d 'nter\'eno~, ROSE I.'lL~ON, 1 dlv1dua 1)' and as
Fe~r~sentat1ves of t e Black and Mexl:2n-~"er1cc
r ters of Lubboc , lexas
I"o\' ant s
vS.
1 £ CI
r LlI=~ CI:, 0",,5, and t'he
:a)cr anc Cl . CounC1
thereof, eILL McALIS ER,
;., A' HE 'R, DAN B;f:EF., I·~. J. "BUD" ,c,DERl ,and
ACI: BROHN, &11 ln t elr offlc1al capac1tles as e~ ers
of the C1t~ Councll of Lubbock, Texas
E.
Respondents
RESPONSE IN OPPOSITION 10 MOTION fOR INJUNCIION PENDING APPEAL
PRESE 'TED 10 MR. JUSTICE WHITE
ASSOC A E JUSTICE Of IHE SUP EME COUR
CIRCUI JUSTICE FOR IHE fIf H C RCUI
o
II
THE
HO~ORABLE
UNITE~
STAlES SUPREME COUR1:
Respondents, the C1ty of Lubbock, lexas, ltS
\a 'or A an
Henry (successor to B111 HcAllSter, deceased), Joan Sa er. M. J.
"Bud" Aderton end E. Jack Brown 811 in the1r offlcla. capec1l1es
as
~er_ers
of the
Clt~
Co nC1
of Lu
OC
CA-5-;6-3 , 1n the U :ted States 01str1c
lStrJCt of.
~uudward,
exas, Lubbock 01\,lslon, the
exas, Defencent5
Court for
Hono~eb
t~e
e Hal
judge pres1d1ng, and Appe lants 1n appeal 1
\o~'
e~t
\0.
C.
n
ern
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
e3-1196, In the UnIted States Court of Appeals for the rlfth
Circult, respectful)' su mlt tOolS Response to "CJyants'
~',otion
for
lnjunctlon Pendlng Appeal.
Movants' motlon should be denied for the
follCJ~lng
reasons:
: )
Extraordlnary clrcu~stances do not eXlst In t, lS case,
and 'he necessar. pre:eoulsltes for the reouested
rellef ave not bee met by the Vovants;
'2)
elther the Dlstr1ct Court nor t e rlftn C1:CUlt belc~.
abused t elr disc:etlon In den.1ng Voyants'
0 lCJn for
the same rellef reouested 1n the Motlon for lnjunDtion
now pendlng before thlS Court.
(3)
Ho ants upon thlS record aye flIed to show the
reasona Ie proba lllt~ of a grant of ce:tlorafl, t at
the dec1slo s ce c~ ~efe erroneous,
El: ::e a:ab:e
harr, or that t~e m :10 hare lS conS1S e ~ ~:t. a
balanClng of t e eQultles.
If\TRODUCTlON
~oyants
tl0na:~
Rul~s
sought re.lef frum the rlfth Clrcult under dlscre-
power set for'h In Rules 8(a), 2 (c) and 27,
of Appellate Procedure, and 28 U.S.C. 1651.
redera~
These rules
merely provide procedural reQulrements for motions and extraord1nar~
remedies.
They here seek similar rellef under Rules 43
and 44, Rules of the Unlteo States Supreme Court and 28 U.S.C.
1651 .
~hl1e
Moyants sought Sl lIar remedles in t e
under Rules 62(c)
r.~.A.p.
rlal Court
after Responaents (as Appellants)
perfected their appeal in this case, their mohon was denIed.
a use of discretIon by the TrIal
Court was al eged.
Ap a: en
t e ,otlon now before thIS Court IS intenced as an Inde e. den
- 2 -
'0
}.
I
I
II
II
I
I
I
I
I
I
I
actIon seeking the requested relIef
to the unfavorable
flndln~s
upun the same
ele~ents
In the Cou:ts
belo~.
The relIef sought by
~ust
In theIr MotIon for InjunctIon
~o~ants
be classIfIed as extraordInary In nature.
They are In
effect askIng for a slgnl Icant Change In the fInal
~ud9ffient
of
t e TrIal Court prIor to the comple·lon of the oroerlr appellate
prucess.
The Tnal Court, and the rlfth CirCUIt, after full. H,C
careful conSIderatIon of the facts and arguments on both SIdes,
2ecllned to grant the relIef requested.
26 U.S.C. Se:tlon 16S (a; prOVIdes that "the Suorere Court
and a.l courts establIshed by Act of Congress may Issue a 1
~rlts
necessary or appropriate In and of their respect lye jurlsdlCt Ion. "
a
~: h lie
pro~rlate"
a "s t rIc t" con s t r uCt ion
as apparentlr been
0
f the
d~cllned
~0
r d s ., ne r. e s s a r y
0
r
In all CIrCUIts, the:e
IS consensus that thIS is an extraordInary remedy applicable only
In exceptIonal cases where there is a clear abuse of discretIon
or usu:patlon of judICIal
po~er.
LaBuy
Y.
Hower Leat er Co., 3S2
U.S. 2A9, 1 L.Ed.2d 290, 77 S.Ct. 309 (19S7), reh. den. 3S2 U.S.
1019, 1 L.• Ed.2d S60, 77 S.Ct. SS3.
See also Platt v.
1~lnn.
Mlnlno & Mfg. Co., 367 U.S. 2AO, 11 L.Ed.2d 67A, 6A S.Ct. 769
(1964).
II
I
I
only pasSIng reference
~lth
. -
3 -
I
I
II
I
I
I
I
I
I
I
I
I
II
I
II
The rlfth Clrcult ltself has noted that Sectlon 1651 wrlts
should be resurted tu only w
appeal lS clearly not an
e~e
adequate re edy, end that es extraordlnary remedles, they ere
~eserved
fur really extraordlnery causes.
Unlted Sates v.
R: car dson, 204 r;2 d 552 (5 t h Cl r . 1953 ) .
As nuted In Unlted States v. R1C ardsun, supra. Sectlon
lS nut an a ternatl e to appeal.
i
51
See a so Re Paa et, 114 r. 4}
(5th Clr. 1902): Unlted States v. reeney, r.2d 821 (10th
Cl~.
1981) .
~ppellees
falled to
seek to ralse to "extraordinar," status that whlCh
uve them to actlon below.
dlssatlsfled wlth the Judgment of
If the Movants were
~arch
4. 1983, they had full
opportunlty under the Rules of Procedure to request additlons,
a.teratlons or modlfications.
nor dld the,
They filed no post trlal mutlons,
flle notlce of appeal.
The Judgment of
~8rch
4, 1983, stated unequivocally that the
Slngle member distrlct remedy designed by the Court In cumpllance
lts eerller
~lth
emurandu
0plnlon, would be effectlve "co
~enc­
lng wlth the regular Clty electlons to be held In Aprll of 1984
(rlnal Judgment, dated March 4, 1983, attached to Mo ants'
Motion In Exhiblt p. C-27 thruugh C-29, .lncluslve).
At least
four separate provisions in the Judgment dealt with the Aprll
984 electlons as the effective date of the remedy ordere . It
~as
a schedule lntended to allow a reasonable tlme fur appeal
before lmplementatlon of such
s~ste
ajor changes In the e ectlon
as those required by t e JUdgment.
-
4
-
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
The Charter prov1Slons requ1rlng vacanC1es In offlce to be
f111ed were before t e Court and all partles, Introduced by
mutual stlpulatlon at the flrst trlal, and brought forward by
stlpulatlon and order at the re-hear1ng.
In any event, death and
reslgnatlon are not acts of such novelty as to constltute
"extraord1nary"
Clrcu.sta~ces.
ey stlpulat10n below It was
utually agreed that
Res~ondents
(Defendants-Appellants: were cumpelled by the .andates of the
C1ty Charter,Art. IX, Sectlon 3, the Texas Electlon Code, Art.
2.01b(b) and 4.09. and the Texas Constltutlon, Art. IX, Sect10n
11, to proceed to flll the vacancy
the Mayor Pro
Te~pore,
ca~sed ~y
t e reslgnatlon of
who reslgned to seek electlon to the
~ayor
POSlt10n vacated by the death of Blll McAllster.
The Constltutlon of the State of Texas, Art.
6, Sect10n 27,
expressly p~ovldes that "1n all electlons to f1ll vacanCles of
off1ce in this State, It shall be to fill the unexp1red term
~."
(Emphas1s added.
See also Art. 20, V.A.C.S.
Charter of the Clty of Lubbock 1S conSlstent
Sect1"n 27.
The
~'un1clpal
~Ith
The
Art. 16,
Government of the CIty conSIsts of the
Clty Council, which sha}l be composed of a
~ayor
CounCIlmen.
VacanCles In t e
Charter, Art. IX, Section 1.
and four
Counc11 shall be filled by a specIal electlon for the
re~alnder
of the unexplred term, ("as provided by thIS Charter or by
Ordlnence").
Art. IX, Sect10n 3.
At every s eClal (or
rec~!ar'
electIon called to flll one or more vacant electIve offlces.
-
~
-
I
I
electlQn to each offlce shall be by a majQrlty of the votes cast
for such offlce at such electlon, Art.
Art. IX, Sectlon 5.
electlon to be conducted at laroe.
The flillng of an unexplred
IX, Sectlon 6A, wlth the
ter~,
a term In existence and
acceptable to the Movants on March A, 1983, creates no change 1n
the status qUQ, and dQes nQt effect the jurlsclctJon nQw
by appeal ln the flfth Clrcult.
ested
As the flfth Clrcult has
prevlously made clear, conduct not shown tQ be detrlmental tQ the
Court's jurlsdlctlQn or the exerClse thereof, cannot be enjoined
under 2E U.S.C. SectlQn 1651.
ITT
Co~munlty
Barton, 569 f.2d 1351 :5th Clr. 1978).
Development CQrp. v.
Whoever may r1ll the
vacancy In the unexpired term ln the November, 1983 electlon,
hQwever elected wlll remaln subject to the judlcial 1etermlnatlon'
I
of the flfth Circult ln the prlmary appeal.
ARGU~EN~
Movants here face and have not met a stringent burden.
They
have summarlzed the factors for consideration at Movants' Motlon
p. 5, but 19nored the onerous burden of proof they must carry as
to each of these factors.
A SLngle Justlce wlll nQrmally grant upon ln chambers re leW
a stay (or other sim}lar extraordlnary remedy) "Qnl
dinary circumstances."
Whalen v. Roe, 423 U.S. 1313, 96 S.Ct.
16A, 46 L.Ed.2d 1e (1975).
The judgment Qf the lower court,
whJch has considered the matter at
"presu~ptlvely
correct."
ln extraor-
le~gth
and c ose at
96 S.Ct. at 166, A23 U.S. at
- 6 -
ace
316.
I
Accurdlngly, Kuvants to prevall here
~ust
meet the heavy
burden uf shuwlng not onl) that the judgment of the luwer cuurt
was erroneous on the merlts, but also that the Muvant will suffer
I
lrreparable lnjury lf the extraordlnary remedy lS not granted.
96 S.Ct. at 166, 423 U.S. at 1316.
~nd
the thres ule cunslderatlon lS tnat to a
reasona~le
oruta.llltv that four members of the Supreme Court wl.l ccnslder
t e lssue sufflclently merltorlOUS to grant certlorarl or to. note
prubable jur1sd1ctlon.
i04 U.S.
Whalen v. Roe, supra; Mahon v. Huwell,
1201, 1202, 52 S.Ct. 1, 2, 30 L.ED.2d 5 (1971); ~
lIed V:llaoe cf Kake v. Ecan, PC S.Ct. 33, 4 L.Ed.2d 34 (1959 .•
1hlS burden extends not only to the prlmary Bctlon un appeal
befure
I
I
I
I
th~
flfth Clrcult, but as well to the mer1ts of the
repeated unsuccessful efforts by Movants to modlfy drastlcally
the
udgmenl un appeal
Movlnts have
IPparen~ly
lim1ted the1r applicatlon of those
flclors here to the merlt. of the primary factors 1n the case un
appea , and to that approach we shall here also respund, but they
ave not speclf1c.lly applled those factors to the deC1Slons by
the Trlat Court and the flfth Circuit in the denial of those
extraurdlnlry remedies whlCh are substantially the subject uf the
Motion here.
A.
Reasonable Prob.bility of the Grant of Certlorer .
E.
DeclSlon Below Erroneous.
- 7 -
I
I
I
I
I
I
I
I
I
I
I
I
I
~u~ants
~e~
four
ere
~ust
to a
cun~lnce
e p:c
re~sonab
ers of Cuurt wou d decIde
norm~l
al
unacceptable :Isks and
fu~ctlu
al
su~~equent
e
eClllou!'> I .plerre latlon of t, e
fl~e
ITunt S
n
hat
ad~ance
e del a 1
0
of t e
set
b~
I
e
era e
~cce
lr~oseC
udore-
on
a
0
0
a-:!~I.
e
.~
c..
~rocesses
::
~:a
Of ad.
10
dlC al :eVJew.
.
2r~
appe~l
beluw are SImIlar to those presented In
CIt
(~th
belo •.
IS
SOffie of the challenges :alsed by t e Respondents I
prl
of
under the "rule of fou "
Curt's IntrUSIon l a t h e ordlnar
0
In order t
f t hIs f 1 ~ e rr. 0 n t sac c e e: at
to a reasu able probablllt.
2
aS~U"ptlo
·UCICl2. rered
tl~e
co s:-
of 90 er roe"t, a
dl~ru~tlo
y outlIned hereInafter,
a~
~'e
appe.
deratIon should be denIed a lItIgant, wIth hIS
I a'
~blll~~
he
ordar
~.
F.2d
Clr. :'uQust 6, 19€3).
re".a.ndlng thot case wlt.O t
pasSIng upon the Issues the Court noted that resolutIon "of the
Important QuestIon of constItutIonal law presented by
ust
aW~lt
another
da~,
If not a at er case."
.
Insure success for the Resoondents.
A
pOInts relied on by Respondents on appea
that success
not nearly
18
80
rle
su
rec 9 ltlon
l~e
of "Important questIons" may Insure conSIderatIon
hIS appeal
It does not
ary a t e
WIll su flce to show
certaIn for Movants 2S t ey wou d
suggest.
e TrIal Court erroneously
SectIon 2 of the VotIng
dlscrl
lnatory
1
Rl~
t~
rule~
Act ell I
tent to support
at
t~e
~lec
a fInd "9 of a
;c::
~-e-c-e~t
e :- c
\)CJ
rei+ent
to
CJf
at ]on of t.he
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
rlfteenth
kmend~ent.
2uthorlt~
Congress has the
lews for t e enforce ent of
Cunstltu~lonal
an 1nvaS10n of
authorlt~
~he
jud1c1al
l~pl~
to
e t
pro lSluns, but 1t lS
for Congress t
1nterpret
t. e Constltutlon.
~h2t
T e Court has ruled
lntent lS a neces-
prerequlslte to a f1ndlng of a rlfteent
sa:~
:;, 1 1 e \'. Bod e ,
t 10n•
~ct
clscrlm1nator
can
t 6 U.S.
55 ,
t c Inge t It requlrement.
' 1r. c;
(1 980 , ad", e
~arbur
V10.1-
!~en~me
v.
'a~lsun,
~1
c; ". t 5
Crarc~
137, 2 L.Ed. 60 (1603).
In add1tlon, t e Trlal Court erred In h1S
fac's
~
to
lnceptlon of
Ihp
t at the
~;t
~as
ho dl g that
~rltlng
e at-large
of one
syste~,
of t e
lca It
a , te uous.y co
~c:ec
was sufflClenl to f no
ethod of elecllon 1mplemented 1n 1917 was estab lshed
dlscrl~lnatory
5
I
e
a~p
fflclen~
lntent, and that such lnte t, stand ng I
to overturn an enllr,e electlo
5, ster
~.
u~e,
ere t. ere
15 no C1scrlm1natory 1ntent in the ma1ntenance of the s stem.
Sectlon 2 of the Voting RIghts Act, as amended 0
5E2, lS unco stltutlonal for vagueness
ecause
the element uf 1ntent from a penal statute.
une 29,
0 gress removed
Under t e "results"
test Substltuted by Congress, it lS Imposslble for an lnd1v1dual
to know 1n ad ance whether h1S actlons wlll later be found to "e
cr1minal because of the discr1m1natory effect of those actluns.
If not unconstltutional on its face, Sectlon 2
-feted b
e TrIal Court in en unc
stltutlC I
nC
~as
Jnter-
e:,
ne
rlal Courl's flnd1ng thet Sectlon 2 remo\es lnte-t fr '" a
f1nClng of a r1fteenth Amendment vlolatlon represents an
- 9 -
lr~:c:er
I
I
InvaSlon of exclusIve
I .pused b.
I
I
I
I
I
I
I
I
I
I
I
I
I
I
the TrIal Court IS J
~roper
~ddl~lonally,
~y
tIes a
~rocess.
vOIce ln the electIon
dls~roportlonate
Eve~ ~ere
the
and ffiust be 0 ert rnec
because It VIolates the one-man one-vote rule
I
I
'udlclal authorIty.
gIVIng
m.~DrJ­
the 1983 Amendment to the VotJng RIg ts ~t
cu StJtutlO aI,
e Trlal Court erred ln ltS ln eipieta Ion of
the Act
!
exciusl e conSIderatIon to the "t plcal
factors"
:ef feted
glvln~
typIcal factors so
~
lstory cf
~.
1n the
eglslitlve
e Ac
ap~lled
were not conSIstent WIth t e over-
1
€
elmlng Intent of Congress to only restore t e .aw as It eXISlec
prIor to Selden and
CO~SJstent
wlth
~
Ite
. Reolster.
: IS
also apparent that the TrIal Court erroneous.y equated Secllo
2
protectlons wlth actual mInorIty electIon, not with the true
prImary Issue as to whether the processes
and electIon are equal
y
open to
l~ad
no to no Inatlon
m~~orltles.
fInally, Appellants assert that the TrIal Court 9a e undue
emphasl
to the fIndIng of polarized votIng because ot er factors
of eaua
SIgnIfIcance were Ignored or relegated to
In r
l~
or-
tance In arrIVIng at the final deCISIon.
As was appropriate, Movants fIrst requested an InjunctIon In
thIS
The
atter fro~ the DistrIct Court where the case was trled.
reme~y
sought was discretionary with the Court In
DIstrict and Appellite Courts.
ot
t e
Although the Movants do not
appear to c allenge here the rulIng of the TrIal Court un : elr
~
tlon for In'unctlon handed down below, nor the fIr:
ceclslon, Respondents assert that where an Issue
- 10 -
[lrCUI:
as f rst
~ee;
••
••
••
••
••
••
••
••
•
I
ralsed In the DlstrJCt CtJurt cnd deCIded there on the fects ohe
the 1;; ..' unCer dIscretIonary po ...· ers, the A.ppellate Court shCJU!C
('tlnSlder the same Issues (Jol)' under an "abuse of dlscretlCJn"
standard.
Deckert \'.
S.Ct.
85 l.Ed. 189 (19,"0): r1oroan \t.
(1st
229.
(1r.
Independence Co:p.,
311 U.S.
V,errloan,
,23
290, 61
r .2d
<;17
19i5;.
The OlstrIct
LOI.l:t
H
generally 10 the best
~o:.:sltlCJn ttl
celerfP'lne the facts because of hlS closeness to the
the objects of dupule.
hIS dlscretl0n that
I""lItlce ouL,,"elqhed
,10\'&n:5.
282,
the dangers of changIn;! the
en~·
~ltnesse5
.,nd
In thIS case the DJstrlct Ccurt found Jon
Imsqp'lec or rea! shurt
The Court Old nol
S~'5tem
term r.a:rr
on short
tCl the
obuse Its dIscretIonary powers, and
:he Movants ha\'e not chtillenc;ed the order denylng the lnjunctlon.
1J.~\'i:"ltS'
~lotlon
for
injunctlon Pendlng Appeal s"ol.:ld be dlSlfI1S-
sed.
C.
IRREPARABLE HARM.
D.
BALANCING
or
THE EOUITIES.
At the tlme the lrlal (Clurt entered the rlnel Jud9i.'ent Cetee
March 4,
198', the P.lo\'ant. were apparently sstlsfled to "'Slt
untl1 Apnl,
1984,
for .lmplementstlon of the ne ..· system. (onSl-
derlnQ that the November, 198' speclal electlon 15 called for the
sole purpose of fllllng the unexplred term of one councll member
to serve until the reQul8rly scheduled ele-ctlon ln ,c.,prJ!,
19E1..
It
rr-e~E'''':
lS d; "flCU!t to understand how Clfcurrstances are
frolfl those In eXIstence at the tlme of judgret'lt.
-"
-
an~
::
I
I
I
I
I
I
I
I
I
I
I
I
I
t~e
If
at-large system lS to be replaced by slngle
dlstrlcts (the heart of the lssue to be determlned on
then the person elected to fIll
the unexplred
ter~
~~~~er
a~peal),
wlll
av~
no
advantage over the candldates who wlll run from the speclflC
dlstrlcts ln
~prll,
1SB~.
Respondents emohatically deny that
r norltles do not have equal access to the electlon
Lutbock.
Eut, even lf, as the Appellees
clal~,
~io=esses
:n
a Black or
Mexlcan-Amerlcan can ot be elected at-large, then the person
elected at-large would certaInly not be from a mlnorl!
dlstrlct
and would be no threat to mlnorlty candldates ln the general
electlon.
lhe person elected wlIl serve only flve months before the
next electlon.
Such a short period of tlme ln the overall scheme
of thIngs would certalnly not deprIve anyone of substantIa
rIghts, partIcularly Slnce the Issue would not have a: sen b t
for the untlmely deeth
o~
the Mayor.
The sudden lmposltlon of
the SIngle member dlstrlct system ln November, 1983, would even
a~pear
to be self-defeatlng for the mlnorlty candlcates
~ecause
lt would deprlve them of the opportunlty to develop a broad
followlng ln the mlnorlty dlstrlcts and lessen thelr chance of
ralSlng sufflclent cpntrlbutlonS and other funds for a VIable
campalgn.
Contrary to the posltion whlCh Movants take ln
there would be substantIal
thel~
arm done lo "ovants and
lnterested partles to thlS lltlgatlon lf an In"uncllO
granted pending the outcome of the appeal.
- 12 -
Motlon,
er
~e:e
I
I
II
II
II
II
II
II
II
5uCh "r a 5h t rea ten t" w0 u1 d r end e r
IT,
e anI n9 1 e 5s F: e s ~ 0nden t s
r:9' t to the delIberate and neasured conslderatlo
affords lItIgants.
norma.l~
Fotentlal candIdates for all SIX
to the o:dea. and expense of
t!
~
2
whIch IS no
-udg~ent
15 :eversal c
d
co~e
OSltlonS would be
ca~palgnlng
yet fInal and
not only
u~o
adopted b
as "'e 1.
the Court as being In
ex~o$ed
for a pOSItIon reculrec
leh cou!d
w
t e
ajor
dents' appeal, but upon challenges to
F.es~o
an appeal
e reversed,
~o;nts
cf
e speCIfIC D 2
1012tlon of
e-vote"
"one-~2n 0
51 ce the 5u;:>re e Court deCIsIon i
Cacoet .• et al. 51
ap~ortlonment
L.~.
~e~3
v,
:U.S. Sup. Ct., June 22, 1,e3j,
plan can be con51dered
"0
e.ond questIon.
WhIle Movants seek to brush past the effect of such a c ange
the
r~
alnl"g
~e~bers
of the present City CounCIl by clal log
no narm, It IS not so 51 p e.
The .present CIty Councll was
elected by the people of .Lubbock to serve at least until April,
1ge~.
1986.
One member's term does not actually expire untll
0 lmple ent the new plan In
~ove
~prJl,
ber, 1983, ... ould requIre
that these eXlstlng terms be cut short and that t e Councll
e bers run fur offlce .<'''1th all the Inherent expenses and
e~pendltures
of tIme and effort) and WIn e ectlon In order to
serve out the balance of the term for WhlC
been elected.
Then, In four months, t e.
the
WIll
have already
e reaulred to
repeat the pr cess anc t ,e ex;:>eose if 'to ey WI sh tt: cent lnue on
t. e CuunCll.
Or, the!' would
e requ red to ser\ e flJr a
perl d than allowed, under teState ConstItutIon, terr
3 -
~
nQe:
l"lta-
tlons that have never been questloned In thJS case.
Premature ImpOSltlon of the dlstrlct electJon system
~ould
result In substantlal harm to the publlC Interest.
lhe requested order would accelerate appllcatlon of the
remedy by speclal electlon when, as Movants themselves noted
below. other cases ha e
~e
edy at the
unlfurml~
phased In
l~~OSltjon
~n
~ovember
elther that all SlX POSltJons elected In
would
~ovember
autho~lzed
by lEX.ELEC.CODE, Art.
requl~e
agaln run 1n
1986, (to avold endless confllct wlth the Clty
ceslgnat10n, as
of t, e
ext reoular meetlno.
Inauguratlon of the new remedy
~~rjl,
t~e
Charte~'s
2.01b(a)(c). of
.prll for even years as t e date for regular general electlons),
or to avold thlS, that the Court lssue addltlonal orders, not
currently In the rlnal
~udgment,
to the regular electlon date for
changlng the Charter wlth regard
t~e
future and extend
be~ond
tradItlonal (and constltutional) limItatIons upon the terms of
those so elected.
,POSltlon of the SlX member CounCll In
'ovember, 1983,
would, If the clse 16 reversed, leave the Clty of Lubbock wlth at
best only
I
de
facto governing body, to be agaln replaced by a
-
14 -
I
I
I
I
I
I
I
I
I
I
I
I
I
new
bod~'
at a speclal elec:lon when a new p an lS 'rdered.
b~d~
facto
could sub'eet t e
Clt~
A de
to repeated and extensl E
lltlgatlon to support (or defend) toe legalIty of all ordlnances,
contracts, bond lssues, annexatlu s, lanc acqulsitlons,
tlO s, etc. In each a d e,er
actlvlty as undertaken b,
der a-
c~
de
~IS
fa c t a Cone 1 1 .
~dc:tlonal
y, t e CIty e.Ects Its two Mu IClpa!
two year constItutIonal ter s at the ,regular
under 1200gg,
\0
e~ber,
.A.C.S.
1983, on a
~prll
ftr
JUd~E5
e ectlons'
ImplementatIon of the CounCIl electIon In
re~u
ar baSIS wou d reoulre t e C
sho .cer t. e expense cf a genera
electlo
every
~ear,
) t
e for
'he CounCIl vacanCIes (odd years, and one for just the two
Kunlclpal Judges (In even years).
"ave. er electlo s b
enjo~ec
the Clty would ell'" nate t. e sa\'. gs
through jOlnt electIons wltn the luh ock
School DIstrict
a5
ncepende t
author)zed by TEX.ElEC.CODE, Art. 2.01c.
WhIle the judICIal determinatIon of the Court, as ref ected
~y
t e FInal Judgment, does not ha\'e to be c eared wlt
JustIce Department prIor to entr"
nonetheless, t e CIt
submit for SectIon 5 preclearance (prIor to a
v
electIon), all subsequent changes necessItated
order.
t e
subseque
. t e Court's
For example, while the Court-ordered dlstrlctlng plan may
not be subject to preclearance, changes that result from
sue
ust
as changes In vOtl g preCIncts, po.llng
subject to SectIon 5.
.aces, etc .. :era)n
28 C.F.R. Sectl0n 51.16.
1 ese "au.:!-
lary" c anges cannot ::>e submitted pnor to fl al enact ent
5 -
e plan
l:
II
II
c.r.p..
28
now IS not tIne, no
~ollon.
ffi~tter
e_ector~l
t e
how expedltluuS the
for complIance wIth sue
he reQuested c
prucess
CICI~
~
~~
SectIon 51.20.
~reclear~nce
ges rIsk D
l~pOSlng
a 0
~~ln9"
~n
process.
f
tre~tlTent
ch~lrs"
flna~l,
~
cd
dlze t 0 orderly conduct of munlClpa) affaIrs to
oosslble litIgatIon
simpl~
t~IS
~
.,:
t e
pro\ec
le~~
I
of thel: actIons.
cuthentlCl~~
of
prOVISIons.
slc~l
not yet
T ere SIlT;; y
~y
o
c:-
\<'e
ncertal'~ ~nc
to expedIte the proposed re,ed)'
b~
fl\'e I'.ont S.
Contrar~
to
e Po\ants'
cultles of requirIng
~ovember,
1983,
~lle~atIDns,
Im~le~entatlon
t e
~ract:c2_
clff -
of a new electIon s)stem
for outweIgh any Imagined harm arISIng from
fIllIng one vacanc)' on the Cuunc.l for a f1\'e ,onti, perloe u :ler
t e eXIstIng at-large system.
final, and the new
distr~ct
The
,March~,
9~3,
judglTent IS not
plan should not be Imposed wntll the
appellate courts have completed theIr conSlderat1on of t e matter
and ISS 'ed a mandate after full conSIderatIon.
Procedures necessary under the
Constitu~lon
ot1ng RIg ts Act, t e
exas
and the TEX.ElEC.CODE, have long SInce co menced.
They Include not only the passage of the
for~al
electIon order,
but Its postIng and publicatIon, the selectIon and traInIng of
electIon offICIals, rental of electIon
prIntIng of the ballot and other
ncludes SectIon 5 preclearance
~achlnes,
elec~lon da~
appllc~tlon
- 16 -
and ultImately
rate:l~ls.
uncer
t~e
it also
c::~~
I
I
I
I
I
R19ht~
~ct
reQu1re~ents,
to
tr~ry
Hov~nts
The crocedural electlon
casual dlsw1ssal ,
~re
~aSSlve.
CD~CLUSIO~
Fes ondents
h~ve
the Il'th [lrcu1t
bee
I
I
co.
August 31 , 1983).
tedlous and tl.e consum1ng.
1rgenUlty.
I
I
I
I
I
I
I
l~a11~d
ftr
d1.1gence, vlgor
~lt
~ubrn1ss.un
set fur Monoay.
Ia ts
presented thelr appeal upon the
upon o:al
~no
ar9u~ent
ctober 24 , 196}.
hopeful.y
of that
~lt~
~ppe~~
Res~undents
to
~er1ts
(as
now
~as
~~pei­
have souaht no stays and have submitted our own prayers
exped1t1uns
~uc~
ceter~lnat1on
ea:1n9
~elow
as woule
~ake
no:~al
co~pliance
fJ~a
'ge4
sufflClently ahead of the :e9ular Aprll.
electlons as woul= allow
a
.o~slble
wlth all ffiandated
electlon prerequlsltes (usually 70 to 80 days) under whatever
sy~te~
as
~ay
be flnally
deter~lned
to be lawful.
If JUdlc1el change be sustalned, 1t wlll t en be
0
~
~lth
awareness of all the cltl]enS that lts necesslty had been
determIned only after
easured and del1berate appe late re lew.
PreC;p1tous 1mplementatlon would not serve nu -dlsru t \e c. ange,
If Change must come.
The.~remature
syste~,
lmpl!mentatlon of the Slngle
me~ber
dlstrlct
and lts subsequent reversal for any reason, wou d
~r1ng
6
dlSruption to the functioning capaclty of munlClpal government
whlC
the posslble gaining of flve months on the
never justify.
~e
f1nd it fer less than
- 17 -
tlmeta~.e
coule
reasona~!~ pro~a:!e
:'2t
four rre~ ers of
C:
t
15
Court w~u
c
so stron9 ~ ot~e:~lse cs t~
feel
~:upt
~e~ponde, t~
fo:
.
'U~CtlO
:esoect 1 'ely
Pe Cl 9
~ppeal
~r2y
aC~O:Cl
t at
g:~
e
"0
t
J t.l
r.
.e de led.
'espectf : .
su~rrlttec.
JOfJ' C. ROSS, JR.
CITY ATTOR:EY
STATE BAR ~O. 1730300
P.O. Box 2000
Lubbock, Texas
n
9~
7
r/)
Z?
-.L1......
:./t:hn./.4tf~./~
~A~ES P. BRE~STER
:. Y
Cl
IL TRIAL ATTOR 'E
(806)
762-6~11,
Ext.
22 S
SHELTO~
AN
JONES
RA'1S D. SHEL O·
T. DALE JOl>.'ES
1801 Avenue a
LUbbock, Texas 79401-4891
ATTORNE
rERTIrIrATE
~ere
se:ved upon
~lllla
R~PO
DE"S
or SERVICE
e u derslgned hereby certlfles
t. e forec;oJ,ng Response to
S FOP
1otlon for
L. Garrett,
- 18 -
th~t
tree true
inju ::~10
~ttorne\
~0~les
Penc.:n;: ;':)cecl
at
a~.
E'~O
••
••
•
.'•
•
••
••
:'~~9:a£. ~"!lte eOD,
:eSlr;~,c~ec
:-o..lnsel
b\
Ca:la~.
1'C:\'Ci"'t~'
for I'c'.a"lts,
a done
a~
tt,£-
t:uE
:-eouest ane ;oS
:tJj::~
E-c:n CI'"'
~·.e
is ht".ec'ter :"lare:d. by ole:c:nQ sa-:.e In t-Ie
(In :rns :I"le 2/tn
fcc:essec.
lfo)'eS i5225,
c;t:(..rr.!~s
d2~
of Septelfbe:.
i9&;.
~~"~~-
Vor
C01J\~[l
.
(806) ,62-6<'11. ["
:"'- Gi:- z a
:::. c. :.,!,\ ; t
·~:6 .
.:tl",
... j~t.::o(,
.:.It·e:t Ferez
l ....·
':;t : orne:- a:' !".c ..
1e_';:5 :'\·e·~e
"'2
Street
Te),is
iSt.01
u~cocl.:.
line ;'.rthur
-5-01
0'51"1ea 6 Hall
;"ttornevs it La ..
1~a2
i9!.lO
ell: CiS
F.O.
:v.:el H. =enson
:.: t
Te)'e!:
Mark I-!all
:'tltirnev Oil law
1216 t.\·~nue K
~ ... ~~tlck!
.221;
e~c:s::\ E"lUe
SOl(
12'iE-
.Lubbocl.(,
Te ... a~
-~-CC
ornev at lilw
;!:16 16tn Place
ubbock, Te.as
79416
:..~ert
P.
eo.
'J2~on
Di\'Jdowi
School of lew
!.:J i
...
1
ri
r fa);
:11ngton, \'.4
Rolando Rl0S
Southwest Voter Reolstratl0n
201 N. St. ~&ry's, ~Su1te 501
San ".iltonlCl,
e\&s
ie,05
:>: 1 \'e
22201
-
19 -
DAHIEl K. OHlSON'
• AJlGR"E! IT UW
IN THE UNITED STATES SUPREME COURT
NO.
REV.
ROY JONES, GONZALO GARZA,
EUSEBIO MORALES,
and intervenor, ROSE WILSON. individually and as
Representatives of the Black and Mexican-American
Voters of Lubbock, Texas
Movan ls
VS
THE CITY OF LUBBOCK, TEXAS, and the
Ha)'or and City Council thereof. BILL McALLISTER,
ALAN HENRY,
E. JACK
8RO~IN.
JOA~
all
BAKER, M. J. IIBUD" ADDERTON, and
in their official capacities as members
of the City Council of Lubbock, Texas
Respondents
MOTION FOR INJUNCTION PENDING APPEAL
PRESENTED TO MR. JUSTICE WHITE
ASSOCIATE JUSTICE OF THE SUPREME COURT
CIRCUIT JUSTICE FOR THE FIFTH CIRCUIT
TOMAS GARZA
1006 13th St.
MARK HALL
Dallas,
IX 75225
214/ 369-1952
Lubbock,
Lubbock. TX 79408
ROLANDO
LANE ARTHUR
WILLIAM L.
8300
GARRETT
Douglas.
Suite 800
RlOS
TX 79401
1402
Texas Ave.
ALBERT PEREZ
Texa~
201 N. St. Hary's. Suite 501
San Antonio. TX 78205
1216 Avenue K
1112
Lubbock, TX 79401
Lubbock, TX 79401
DANIEL H.
ROBERT P. DAVIDOW
BENSON
School of Law
Texas Tech University
Lubbock,
TX
79409
Geo. Hason School of Law
3401 N. Fairfax Drive
Arlington, VA 22201
ATTORNEYS FOR MOVANTS
Ave.
IN THE UNITED STATES SUPREME COURT
NO.
REV. ROY JONES, GONZALO GARZA, EUSEBIO MORALES,
and Intervenor, ROSE WILSON, individually and as
Representatives of the Black and Mexican-American
Voters of Lubbock, Texas
Movants
VS
THE CITY OF LUBBOCK, TEXAS, and the
Mayor and City Council thereof, BILL McALLISTER,
ALAN HENRY, JOAN BAKER, M. J. "BUD" ADDERTON, and
E. JAC~ BROWN, all in their official capacities as memb rs
of the City Council of Lubboc~, Texas
Respondents
MOTION FOR INJUNCTION PENDING APPEAL
PRESENTED TO MR. JUSTICE WHITE
ASSOCIATE JUSTICE OF THE SUPREME COURT
CIRC IT JUSTICE FOR THE FIFTH CIRCUIT
WILLIAM L. GARRETT
8300 Douglas, Suite 800
Dallas, TX 75225
214/ 369-1952
TOMAS GARZA
1006 13th St,
Lubbock, TX 79401
MARK HAll
1402 T xas Ave.
Lubbock, TX 79 0
ROLANDO RIOS
201 N. St. Mary's, Suite 501
San Antonio, TX 78205
LANE ARTHUR
1216 Avenue K
Lubbock, TX 79401
ALBERT PERI:.Z
1112 Texa A,"
Lubboc • TX 7
DANIEL H. BENSON
School of Law
Texas Tech University
Lubbock, TX 79409
ROBERT P. DAVIDOW
Geo. Mason School of Law
3401 N. Fairfax Driv
Arlington. VA 22201
ATTORNEYS FOR MOVA TS
01
..
•
HOTION FOR INJUNCTION PENDING APPEAL
Movant5,
Appellees
in the proceeding nolo' pending before the
U. S. Court of Appeals Cor the Fifth Circuit, Cause' 83-1196, and
Plaintiffs and Plaintifl-Intervenor in the U.
for the Northern District of Texas,
5-76-34,
REI'.
ROSE \r{ILSON,
District
Courl
GONZAlO GARZA,
CA-
EUSEBiO MORALES, and
individuall), and as representatives of the Black and
Mexican-American
"minoTit)·
ROY JONES,
S.
Lubbock Division, Cause
hereinafter
the
voters," mo\'e that Your Honor pursU,Jnl to Rules of
volers
of
Lubbock,
Texas.
the
Rules 43 & 44, and pursuant to 28 U.S.C.
Supreme Court.
1651, the
"All _'rits Act,lI enjoin the City of Lubbock, et a1. to desist from
the
further
IDemhers
use of the "at-large" election scheme
of the city council,
and.
for
electing
alternatb'ely for a mandatory
injunction requiring the iull implementation by November 8.
of
1983,
the District Court's remedial six single-member district
plan
set
19 3
forth in that Court's Final Judgment
of
March
4,
(Attached hereto as Movants' Exhibit C).
In support thereof.
the minority voters would sho ..· )'our Honor
the following:
I.
On Harch 4,
of
for
the
1983,
the Trial Court entered judgment in fa\'or
.inority voters finding that the present at-large
the election of city council .embers in the cil)' of
Texas.
scheme
Lubbock,
violated both the Fifteenth Amendment to the U. S. Constl-
••
••
••
•
~
•
-•
•
tution
1n
that the scheme was
initiated
intent and the Voting Rights Act.
29,
1982,
having
in
less
that
with
discriliininatoTy
42 U.S.C. 1973, as amended June
the scheme resulted in the
.inority
voters
opportunity than others to elect representatives
of
their choice.
As
violations,
remedy
the
for
these
constitutional
and
statutory
Trial Court ordered that "[C)ommencing ~dlh
the
regular city elections to be held in April, 1984, the City Council
of the City of Lubbock shall
be comprised of six members,
from each of the geographical districts ••• "
It
the
(Exhibit C.
elected
p.
27),
based the re.edy upon its finding that "it 1s inescapable that
at-large
system in Lubbock abridges and
opportunities to elect aeabers of their
dilutes
minorites'
choice and that
opportunity
i~
electorate"
and lithe Voting Rights Act of 1965 as amended,
much less than that of the other members
their
of
the
2(a) and 2(b),
prohibit the further use of the at large system for
the
of
election
City Council members in the
City
of
Lubbock,
Texas." (Exhibit C, p. 14.).
Notice of appeal was ti.ely given by the City of Lubbock, and
all briefs have been ti_ely filed with the U.
for
the Fifth Circuit.
S. Court of Appeals
The case is scheduled for Oral
Argument
before a panel of the fifth Circuit at 9:00 A. M., Honda)', October
24, 1983, in New Orleans.
II.
Subsequent
to
the entry of final
judgment.
the
mayor
of
••
••
••
••
•
••
Lubbock died on June 27,
Alan
Henry
elected
1983.
One of the city councilmen,
resigned his post to seek the mayoral post
in
special
election
held
(Stipulations of Evidentiary Facls,
August
Exhibit 8.
Mr.
and
13,
attached).
1983.
This
election was conducted "at-largc." but the minority volers did not
seek
to
enjoin
it for
the reason that under the
ordered by the Trial Court,
large.
(Exhibit C.
However,
Henry
must
pursuant to
p.
remedial
the mayor is still to be elected
plan
at-
27).
the vacancy created by the resignation of CounCilman
be
filled by special
election
in
November.
Art. 11, Sec. 11 of the Texas Constitution,
of the Texas Election Code,
and Art.
X Sec.
3 and Art.
1983,
Art. t..09
IX Sec.
of the City Charter of the Cit)' of Lubbock.
The
City of Lubbock has called lhis election for November 8,
1983, under the outlawed "at-large" election scheme.
(Exhibit B).
III.
On July 27, 1983, the minority voters applied to the district
court
for the relief sought herein,
and by order of
1983, the district court denied the requested relief.
August
17,
(Exhibit A.)
IV.
On August 26,
Court
herein,
of
1983, the minority voters applied to the l!. S.
Appeals for the fifth Circuit for the relief
requested
and by order of September 19, 1983, that Court denied the
requested relief. (Exhibit D.)
••
••
••
v.
The
scheme
vacated
the
use
for
by
the
November 8,
1983,
the
at-large
election to fill
election
the
place
by Councilman Henry will dilute and abridge the votes
minority
Court's
the City of Lubbock of
order
voters,
that
and is in direct violation
further
use
of
the
of
at-large
the
of
Trial
system
is
prohibited.
The
trial
court in its memorandum opinion
of
January
20,
1983, (Exhibit C) found the following facts:
1. a history of discrimination
pa ge C-S
2. polarized voting
pages C-S&6
3. large election district
page C-7
4. majority vote requirement
page C-7
S. anti-single shot requirement
page C-7
6. no residency requirement
page C-7
7. minority educational disadvantages
page C-
8. minority employment disadvantages
page C-
9. minority income disadvantages
page C-9
10. minority living condition
disadvantages
pages C-8&9
11. no minority elected to city
council
pages C-lO&ll
12. lack of minority access to
political system
page C-9
VI.
It is well settled that if an injunction pending appeal is
4
Lo
••
••
••
••
•~
be
issued,
the
the party seeking the injunction must establish
judgment
of
the
lower courl was
and
that
that
the
applicant will suffer irreparable injury if the injunction is
not
granted. Whalen :!..:. Roe. 423 U. S.
erroneous
1313. 1316 (1975) (Marshall. J.
in chambers). In evaluating these two factors,
t
four considerations
are relevant: (1) that there is a reasonable probability that
fOUT
Justices will consider the issue sufficiently meritorious to grant
certiorari or to note probable jurisdiction, Graves !..:. Barnes. 405
U.
1201. 1203-1204 (1972) (Powell, J.,
S.
in chambers); (2) that
1(£
theA~is
fair
conclude
thal
Publishing
the decision below was
f.2.!:..I!..:..!~
J.,
(Powell,
prospect that a majority
1203;
and
and
Graves,~,
to explore the relative harms to
well
Schlesinger,
J ••
will
,",OS
likely
u.
('"') that in a close case it may be appropri'ate
respondent,
(Marshall,
Court
Times-Picavune
Schulingkamp, 419 U. S. 1301, 1305 (1914)
balance the equities -
~.!..:.
the
in chambers); (3) that irreparable harm will
result from the denial of an injunction,
at
of
erroneous,
in
S.
to
applicant
the interest of the public at
large,
,",14
(1973)
chambers).
U.
Each
S.
of
1304,
1308-1309
these factors
will
be
discussed.
~
vote
and
REASONABLE PROBABILITY Q[ GRANT Q[ CERTIORARI.
The "four
rule" involves considerations of maintaining the status quo,
of
granting an injunction only when the
applicant
present~
substantial contentions which are likely to prevai I on the merits.
I
I
--
I
I
I
Holtzman, supra, 414 U. S. at 1310-1311.
The
status
quo
to be preserved is
the
present
existing by virtue of the trial court's decision in
that
the
at-large system can no longer be used.
status quo,
in this case,
condition
March,
1983,
Preserving
the
does not mean the continuation of
the
unconstitutional and illegal at large election scheme.
This case
is
~
similar to the situation discussed in United States
Pathic
Pharmacy,
Court
on
192 F.2d 62,
appeal
misbranded drugs,
when
the
enjoined
to
further
mean
"[mJaintenance
concomitant
that such elections
of
of
the
can
status
quo
is
distributed
continue
only
the
certain
to
a
be
pending
then the Fifth Circuit has
held
sometimes
of preventing irreparable harm - never the touchstone
for such injunctive relief." Parks
(5th Cir.
distribution
Even if the status quo were
appeal of the order ending them,
that
1951) in which
which were in the process of being
case was brought.
interpreted
79 (9th Cir.
EI-O-
1975)
gUdranteed,
~
Dunlop,
517 F.2d 785,
7 7
Here, preserving the at large election scheme is
under the facts proved at trial,
to irreparably harm
the minority voters.
The City has argued on appeal to the Fifth Circuit that
trial
court
erroneous
erred
and
in
that
unconstitutional
that its findings
the
and
Voting
was
applied
Rights
by
of
fact
Act,
the
as
trial
are
clearly
amended,
court
the
in
is
an
unconstitutional manner.
Specifically,
the
City
6
has argued that the
standards
for
••
••
••
••
••
••
I!
•
II
II
II
determining
a violation of the Fifteenth Amendment
and
enforcing the Fifteenth Amendment must be the
is well settled.
statutes
The opposite
The Congress can establish a "results" test for
violation of an enforcing statute.
.£.!..!.l. £!
383 U. S. 301, 326 (1966) •
South Carolina
~
Katzenbach,
Rome.!..:.. United States, 446 U.S.
156, 177 (198v).
Additionally,
the
City
has argued that the
trial
court's
findings of intentional discrimination may be reversed free of the
"clearly
erroneous"
contrary is true.
requirement
Rogers!..:.
of
Lodge,
Rule
52(8),
_U. S.
F.R.C.P.
The
102 S.Ct. 3272,
3278 (1982).
And
the
has
City
argued that in
order
to
succeed.
minority voters were required to prove that the at large
scheme
~
was
purpose.
This
initiated!..!!..!! maintained for
is
not the law.
Plaintiffs may
the
election
discriminatory
prove
either.
Rogers, !...!!J!...!..!. at 3276.
The
City
Rights Act,
is,
fair
in part.
warning
requirement
Ilature.
then turned its attention to
the
amended
Voting
and has argued that it is unconstitutional in that
a penal statute.
as
and
Neither
to proscribed conduct with its lack
its results standard.
the
City
it
and that as such it does not give
Their argument
nor any of its
threatened .... ith criminal sanctions.
South
of
intent
is
pre-
officials
have
been
Carolina,
supra,
at
317.
Alternatively,
the
City
proposed
that
the
Ac t
is
determining
a violation of the Fifteenth Amendment
and
enforcing the Fifteenth Amendment must be the same.
is well settled.
statutes
The opposite
The Congress can establish a "results" test for
violation of an enforcing statute.
££
383 U. S. 301, 326 (1966). City
South Carolina
~
Rome
~
Katzenbach,
United States, 446
.S.
156, 177 (1980).
Additionally,
the
City
has argued that the
trial
court's
findings of intentional discrimination may be reversed free of the
"clearly
erroneous"
contrary is true.
requirement
Rogers
of
Rule
Lodge,
~
52(a),
U. S.
F.R.C.P.
ThE:
,102 S.Ct. 3272,
3278 (1982).
And
the
City
has
argued that in
order
to
succeed,
minority voters were required to prove that the at large
scheme
was
purpose.
both
This
initiated and maintained for
is
not the law.
a
Plaintiffs may
the
election
discriminatory
prove
either.
Rogers, supra, at 3276.
The
City
Rights Act,
is,
fair
in part,
warning
requirement
mature.
then turned its attention to
the
amended
Voting
and has argued that it is unconstitutional in that it
a penal statute,
as
and
Neither
and that as such it does not give
to proscribed conduct with its lack
its results standard.
the
City
Their argument
nor any of its
threatened with criminal sanctions.
South
of
intent
is
pre-
officials
have
been
Carolina,
~.
at
317.
Alternatively,
Ii
III
the
City
7
proposed
that
the
Act
is
I
I
unconstitutional
as
discrimination"
will
control
council.
Whitcomb
that
it
creates
than their proportional
argument
must
class
"reverse
to
neglects
demonstrate
elect
share
the
less
of
Lubbock
the
requirement
opportunity
representatives
of
city
that
an
than
the
their
choice.
City then turned its attention to Congressional
intent,
~
The
arguing
more
class
advantaged
in
in that they speculate that minorites in
Their
aggrieved
applied
Chavis, 403 U.S. 124, 149 (1971).
that if it was the intent of Congress to re-establish the
pre-Bolden
standard,
then
discriminatory intent,
Rights
Act.
Congress
The
intended
that standard required the
and therefore,
legislative
to
97th
2d
Congo
clearly
and did establish
a violation of the Act.
Sess.,
of
so must the amended Voting
history
determining
proof
a
indicates
"results
Senate Report,
Code
reprinted in U.S.
that
test"
No.
for
97-417,
!
Congressional
Administrative News, July, 1982, pp. 177-410.
Finally,
unwarranted
factor
and
the
weight
City
argued
on its finding
that
of
the
trial
polarized
court
placed
voting.
This
is relevant is determining both a constitutional violation
a statutory violation.
The Court's findings based upon
the
extensive evidence at both trials is not clearly erroneous.
Al
DECISION BELOW ERRONEOUS. Since this case is still p nding
for decision on the merits before the U.
the
Court
Fifth Circuit,
S.
Court of Appeals for
and it is the Movanls' position
before
that the decision of the trial Court is correct,
8
lh~n
tha
lh
d
decision
the
conplained of here is the failure of the trial court and
appellate
court
pending appeal.
relief
is
to
grant movants'
motion
for
injunction
The district court opinion denying the requested
attached hereto as Exhibit
denied relief without opinion.
A.
Exhibit D.
The
appellate
court
Therefore. the opinion
of the trial court will be discussed.
The
trial court found that the movants are likely to succeed
on the merits on appeal. Exhibit A, p. 3. The Court failed to find
that the movants would suffer irreparable harm,
find
that
minorites'
however,
it
did
an "at large election will result in dilution
of
the
right to vote." Exhibit A,
erroneous.
Violation
harm.
Sampson
found
that
~
the
substantial
p.
3.
Such a finding was
of a constitutional right
Murray. 415 U. S. 61 (1974).
harm
to the City of
is
The Court further
additional
cost
3-4.
was
not
when weighed against the right of the movants to have
elections conducted that would not dilute their vote.
pp.
irreparable
Exhibit
A.
However. the Court found that the publIC interest would
be harmed.
Such a finding was erroneous.
Reynolds
~
Sims. 377
U. S. 533. 585 (1964).
C:
of
It is fundamental that deprivation
IRREPARABLE HARM.
a constitutional right results in irreparable
further showing.
Action Group
Campbell.
~
Sampson
Hickel.
~
injury
Murray, 415 U.S. 61 (1974);
withou
~
Quaker
421 F.2d 1111, (D.C. Cir. 1969); Hamer
358 F.2d 215 (5th Cir.
9
1966);
Diaz
~
Board
~
~
County
g
D
Commissioners
£1 Dade County,
502
See also Wright & Hiller,
1980).
F,Supp.
190,
10 3
(S.D. Fla.
Federal Practice and Procedure,
Sec. 2948, at 440, and 1982 pocket part, pp. 87-88.
The Trial Court found in its order of August 17,
the
holding
result
of an at-large election
in
November,
1983,
right to vote is diluted in November,
that
"will
in a dilution of the minorities' right to vote," but
the harm will only last for a little while.
the
1983,
that
(Exhibit A, p. 3.) If
regardless of the time
the results of that dilution continue, the fact of unconstitutional
dilution forever remains,
apology
or
later
result
cannot be remedied
constitutional elections.
nature of irreparable harm.
1310-1311 (1980).
and
Rostker
~
by
Such is
Goldberg,
money,
the
44
U.S. 1306,
If a councilperson is elected in November
of the dilution of minority voting
strength,
the
under
as a
injury
complained of and remedied in the Court's order of March 4,
will
very
19 3,
be re-inflicted upon these minority voters who have suffered
this
system found to have been initiated in
discriminatory purpose.
1917
with
a
How long must injury continue?
D: BALANCING OF THE EQUITIES.
The only harm possible to the
City of Lubbock if the injunction is granted is that the City will
have
to bear the expense of a city council election in
Sovember,
1983,
rather than in April, 1984, as presently planned.
However,
money
will actually be saved,
City,
they plan to have a city council election both in November,
1983,
and in April, 1984.
for under the present plans of the
Additional expenditure of funds is not
10
allowed
to
excuse
2i
Federation
remedy
of
violation
Government Employees
~
of
rights.
Callaway,
American
398 F.Supp. 176,
195 (N.D.Ala. 1975).
The Trial Court found that the harm to the City would not
substantial
voters
vote.
when
to
against the rights
of
the
have elections conducted that would not
(Exhibit
harmed
weighed
but
A,
rather
pp.
is
3-4).
minority
dilute
their
The public interest would not
served by the
conducting
of
b
legal
be
and
constitutional
elections.
Department
£f
Labor,
Supp. 837, 845 (E.D. Wis. 1980) order affirmed
~
485 F.
Decker
~
United States
remanded,
661 F.2d 598 (7th Cir.
found
to
be unconstitutional,
which
a court would be justified in not taking appropriate action
to
insure
that
invalid plan.
unusual
1980).
it would be the unusual
no further elections
Revnolds
circumstances
Sims,
~
Once a scheme has been
are
377 U.
conducted
process
enumerated in Reynolds (imminent
of state election laws;
from
1983,
The machinery is not in
election laws are not complex.
not precipitate.
case.
some one and
progr ss;
There will be a change,
the
the
but that
change
is
scheme
in Lubbock illegal and unconstitutional has been in effect
since March 4,
The order declaring
and
election
precipitate changes) are not present in this
months hence.
the
election
mechanics
disruption of the
The special election is not until November 8,
one-half
under
in
S. 533, 5 5 (1964). The
and states election machinery already in progress;
complexities
case
1983, and so far the City has not seen fi
II
at
larg
to seek
I
I
any stay of its provisions.
The
remedy sought by the minority voters is not a change
in
kind from that ordered oy the district court, but only a change in
timing, occasioned by the unforeseen death and resignation of city
council members.
Enjoining
an election scheme and ordering
system
is
well within the power of
federal
supra,
at 585; Hamer, supra, at 221; Terrazas
a
constitutional
courts.
~
Reynolds.
Clements, 537 F.
Supp. 514, 538 (N.D. Tex. 1982).
The
that
if
City has argued at the hearing before the district court
the single-member district remedy is later
over-turned,
elections held thereunder will be illegal and the acts of the city
will be legally suspect, causing untold problems.
case.
Under the Texas law,
at-large
"home-rule" cities may choose either
or single member district systems for election
council members.
Texas Constitution,
Revised Civil Statutes, Art. 1175.
Texas,
and
the
Art.
Sec.
acts of a city under either must meet
the acts occurred is not relevant.
part,
11.
of
5;
city
Texas
Thus either system is legal in
requirements for regularity and legality.
rights
Such is not the
the
same
The system under which
Additionally, remedy in voting
cases has always been prospective,
not
retro-active,
in
to avoid the problem of legality of the governmental bod's
actions under the prior system.
12
WHEREFORE, PREMISES CONSIDERED, the minority voters pray Your
Honor:
(1) To enjoin the City of Lubbock, et al.
from
further
use of the at-large elction scheme;
(2)
To issue a mandatory injuction requiring the relief
granted in the Trial Court's Final Judgment of March 4,
fully
implemented on November 8,
1984,
except
special
as
election
to
be
rather than in April
of
the mayoral position which
on August 13,
elected from Districts 1,
until
1983,
1983,
3,
1983,
and 5,
was
and that the
ana the mayor,
filled
by
persons
so
will
1986,
the next regularly scheduled election in April,
that the persons so elected from Districts 2,
until
the next regularly scheduled election in
until
an
unforeseen
vacancy occurs and
is
serve
and
4, and 6 will serve
April,
filled
19
by
or
special
election.
Respectfully submitted,
WILLIAM L. GARRETT
Attorney at Law
8300 Douglas, Suite
Dallas, Texas 75225
214/ 369-1952
By:
I
II
iJ
00
,..,W"'i""l-:l,.-i,.-a-m--:-L-.-..,G;c-a-r-r-e-t----
d
LANE ARTHUR
1216 Avenue K
Lubbock, Texas 79401
ALBERT PEREZ
1112 Texas Avenue
Lubbock, Texas 79401
ROLANDO L. RIOS
201 N. St. Mary's, Suite 501
San Antonio, Texas 78205
MARK HALL
1402 Texas Avenue
Lubbock, Texas 79401
TOMAS GARZA
1006 13th Street
Lubbock, Texas 79401
ROBERT P. DAVIDOW
George Mason School of Law
3401 N. Fairfax Drive
Arlington, Virginia 22201
DANIEL H. bENSON
S c h 0 0 1 0 f La w
Texas Tech University
Lubbock, Texas 79409
ATTORNEYS FOR MOVA TS
14
I
CERTIFICATE OF SERVICE:
The undersigned certifies that a true
copy of the foregoing motion was served on Respondents by mailing
same to their attorneys of record,
postage prepaid, certified,
return receipt requested,
and addressed to Mr. John Ross,
City
Attorney, Mr. James P. Brewster, Civil Trial Attorney, Cit Hall,
Lubbock, Texas, and to Mr. Travis Shelton, lBOl Avenue 0, Lubbock,
Texas 79401 on this
day of September, 19B3.
On September 21, 1983,
the above named attorneys were nOli fied
that the above attorneys for movants were applying to Ir. Justice
White for the above requested injunction.
William L. Garr t
15
'-.
I:: TI!1. W';JTf.11 S"IAHS UISTRJCl r.(J!.lKl'
FO!: TilE !:U1l'nJl:I::l 01 STRICT OF TEY..AS
LUI:l: f ICK 01 VI StON
.,----
REV. ROY JONES, ct al..
rlaintiffs,
CIVIL ACTION NO. CA-5-76-34
TIlE CTTY Of LUBBOCK, TEY.AS,
ct 81..
Dcf~ndants.
ORO E R
The plaintiffs dod plaintiff-intervenor have filed a Illation for
further crccr pending appeal.
The motion, and stipulations of eVidentiary
racts before the court, e:a.bUsh that the Mayor of the City of Lubbock,
Texas died and that a .ember of the City Council announced his candidacy
for election to the post of Kayor at an election held on August 13.
1983.
Pursuant to the laws of the State of Texas and the City Charter
of the Chy of
Lu~bock,
Texas, the post held by the city councilman was
considered vacant and an election to fill only this vacancy, by an at-large
vote of the electorate, b
The final
election:;
judgm~nt
coc::n~ncing
to be
h~ld
in November of 1983.
of this court ordering single-member district
in April of 1984 has been appealed; ordinarily
jurisdiction passes to the appellate court and this court could not
thereafter amend the order which has been
~,
50
iSppealedo
Turner v. HXH
328 Fo2d 136 (5th Cir. 19tV.).
Notwithstanding, the IIOvants pray for an order that the election in
Noveaber of 1983 be held for the election of six councilmen on a single-
M:aber district basis instead of the at-large: elect ion of only one
councU.an.
The 1DOvants argue that Rule 62(c), Federal Rules of Civil
Procedure, crants jurisdiction to the cJi5trict court to modify its
judl_nt of March 4, 1983
50
that the at-large S)Ostcm l.Iould not be used
IJ - /
in the November election instead of
before instituting the
awaiti~~
single-~mber
t1,e April J984 eleLtlons
district plan.
Defendants contend that this court's judgment of Harch 4, 1983 Is
a declaratory judgment, not an injunction, and that therefore Rule 62(c)
is not applicable.
Further, defendants contend that even though Rule 62(c)
might authorize this court to enter the order requestec, that the court
should not exercise its discretion to modify its previous judsment
because the prerequisites for such an action are not present and that
the court should exercise its discretion and deny the motion.
An injunction may either prohibit certain action on the part of defendant, or command positive action.
United Bonding Insurance
Company v. Stein, 410 F.2d 486, 486 (3rd Cir. 1969).
Although this
court's final judgment of Karch 4, 1983 is declaratory in nature, it
also mandates the defendants to hold city elections in a manner fundamentally
different from the current method, i.e., to switch from an at-large
system to a single-member district plan in which only the residents of
the district would vote on the council represent3tive from that particular
geographical district.
A fair interpretation of this court's final
judgment would characterize it as one injunctive in nature, giving this
court power, in its discretion, to modify it under Rule 62(c).
On the other hand: "It is well settled that 62(c) is expressive cf
the power in the courts to preserve the status quo pending appeal."
Pettway v. American Cast Iron Pipe Company, 411 F.2d 998 (5th Cir.
1969); rehearing denied 415 F.2d 1376.
The status quo until April of 1984, insofar as city elections in
the City of Lubbock, Texas are concerned, is the at-Jar e system.
grant mevants' request for relief would be not to preserve the
system, but would in effect change that statu
-2-
To
at-Iar~e
quo to another system.
-
1I0wI!ver, thl! languagl: of Rule 62(e) I!: "'0 br""d in It" ",cope that the
court is of the opinion that it can invoke r.ull: 62(c) to entertain and
determine the motion before the court.
To modify the court's judgment of Harch 4, 1983 and in effect to
issue an affirmative injunction requiring the November 1983 election
to elect !:ix councilmen from six geographical districts can be ordered
only if the court in its discretion finds that (a) the plaintiffs and
plaintiff-intervenor are likely to succeed on the merits on appeal; (b)
a shoWing that, unless an injunction is granted, the movants will suffer
irreparable injury; (c) a showing that no substantial harm will come to
other interested parties; and (d) a showing that an injunction will do
no harm to the public interest.
Belcher v. Birmingham Trust National Bank,
395 F.2d 685 (5th Cir. 1968).
(a)
The
c~urt
agrees and finds that the movants in this case are
likely to succeed on the merits on appeal.
(b)
The court, however, is not satisfied that the movants will
suffer tbe requisite irreparable injury if the motion is denied.
~~ile
it is true that an at-large election will result in a dilution of the
minorities' right to vote, the councilman elected in November will only
serve until the April 1984 elections, assuming that the district court's
final judgment is affirmed.
The harm from the November at-large election
is thus not sufficiently irreparable to grant a modification of the
court's order.
(c)
There is indication that there woulc be some harm to the City
of Lubbock in case the motion were granted in that the expense of an
additional election would be incurred.
be of substantial harm
~hen
The court does not find this to
weighed aGainst the right of the
pla~.tlffs
-3-
1'/- 3
and plaint iff-intf:rvl:nor to l.:,vl: elections conducted tli<lt would nut
dilute their vote.
(d)
lbe court is
~lso
of the opinion that if the motion sought is
granted, it would not be in the public interest, and would in fact do
h<lrm to the public interest.
The possible confusion that might result
if the motion is granted could possibly unduly interrupt the conduct of
the business affairs of the City.
As an example, if, upon appeal, this
court were reversed in any respect, then the election in November 1983
might vl:ry well be held to be a nullity and serious questions could then
bl: raised as to the validity of any of the acts of the City Council
during the
inte~im
Balancing the
oovants in
period between November 1983 and April of 1984.
interest~
thi~
of the public against the interests of the
case leads this court to hold, in its discretion, that
there is more likelihood of substantial harm to the public interest than
to the movants if such a motion were to be granted.
The court recognizes that the relief sought by the motion before
this court is one that is to be determined at the discretion of the
court.
Considering all of the
a~ovc
factors and balancing the interests
of the parties, leads this court to the conclusion that it should
exercise its discretion and refuse the relief sought.
Accordingly, the motion of the plaintiffs and plaintiff-intervenor
for further order pending appeal is hereby denied.
Court costs with respect to this particular motion, if any,
adjudged as against the
pl~intiffs
a~e
and plaintiff-intervenor.
The Clerk will furnish .. copy hereof to each attorney.
ENTERED this
/7~day cf
August, 1983.
~~O:::-4~~~~~~
Chief JudI'''
orthcro Oi.tr1<[
-4-
I
Trx~s
IN TIlE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
REV. ROY JONES, ET AL,
and Intervenor, ROSE WILSON
Plaintiffs
VS.
CIVIL ACTION NO. CA-5-76-34
CITY OF LUBBOCK, ET Al,
Defendants
STIPULATIONS ON EVIDENTIARY FACTS
COHES NOW the Plaintiffs, Plaintiff-Intervenor, and Defendants in
the above numbered and entitled cause, and for purposes of the hearing
scheduled at 10:00 a ••• Aug. 16, 1983, by the Honorable Halbert O.
Woodward, U.S. District Judge for the Northern District of Texas, Lubbock
Division. stipulate to the following facts in order to avoid a lengthy
hearing and the taking of testimony concerning facts well known to all
the parties involved.
The parties hereby stipulate to the following:
1.
Subsequent to the entry of the final judgment March 4, 1983, in
the above nuabered and entitled cause, which has been timely appealed to
the Fifth Circuit Court of Appeals, granting relief to Pla1l. iffs and
Plaintiff-Intervenor and
o~dering
implementation of a six-member single-
.e.ber district plan for the Lubbock City Council at the next regular
'6-1
city election in April, 1984, Lubbock Mayor Bill HcAlister died on June
27, 1983.
2.
Kayor McAlister's unti.ely and tragic death left a vacancy, and
Councilman Alan Henry resigned his position on the city council in order
to campaign for mayor of the City of Lubbock.
3.
Hr. Henry was elected mayor of Lubbock to fill Mr. McAlister's
unexpired term at a special election held Aug. 13, 1983.
4.
Mr. Henry's resignation has left a vacancy on the city council
which the city must fill by calling another special at-large election for
November, 1983, in accordance with Art. 11 Sec. 11 of the Texas
Constitution, Art. 4.09 of the Texas Election Code, Art. 2.01b of the
Texas Election Code, Art. IX Sec. 3 and Art. IX Sec. 8 of the City
Charter of the City of Lubbock.
Respectfully submitted,
Attorneys for Plaintiffs
Attorneys for Defendants
m Brewster
For Attorneys for Defendants
",~iL
Z;;; ~Lbaniiii:BeSon
For Attorneys for Plaintiff
By:
~ane Arthur
Attorney for
Plaintiff-Intervenor
3-2
IN THE UNITED SATES nlSfRICT COUkT
FOR TilE NOllTliERN 0 I STR I Cl or TEXAS
LUBBOC~
DIVISIO~
,
REV. ROY JONES, et al.,
)";.
F" -
Plaintiffs,
CIVIL ACTION NO. CA-S-7 -3
v.
CITY or LUBBOCK, TEXAS, et 011.,
Defendants.
MEMORANDUM OPINION
This case came on for trial before the court on the 10th day of
January, 1983, with all parties and attorneys present.
The court has
hard and considered the evidence offered, the pleadingg,
and arguments of the attorneys.
~nd
the brie
~
The case is pending before the court on
remand from the United States Court of Appeals for th
Fifth Circuit.
Jones v. City of Lubbock, 640 F.2d 777 (Sth Cir. 1981); Jones v. City of Lubbock,
682 F.2d S04 (5th Cir. 1982).
Subsequent to the court's original judgment in this case, on June 8,
1979, the Supre.e Court of the United States decided two cases, City of
Mobile v. Bolden, 446 U.S. 55 (1980), and Rogers v. Lodge,
102 S.Ct. 3272 (1982).
U.S.
The remand to this court was for the purpos
of
reexamining the evidence and to give appropriate consideration to the
teachings of these two Supreme Court decisions which were decided after
the court'. original judgment in this case.
In addition, the Congress of the United States has amended the
Voting Rights Act of 1965, Pub. L. No. 97-205, 96 Stat. 131 (June 29,
1982) (codified as alDended at 42 U.S.C. §§ 1973
!.!.~.).
This .. mendr.lent
to the Voting Rights Act of 1965 is alleged as an additonal ground for
relief by the plaintiffs in their first amende
original complaint.
At the commencement of the trial on January 10, I 83, the court ann unced
that in reaching its final decision, it would consider n
l
only the evidenre
c -/
introduced at the curr nt trial, but
court wuuld
rh~
con~idcr
3S p3rt uf
the evidence in this case all the testimony and exhibits ",hie-h had been
introduced at the first trial in 1978.
It would be in light of all of
said evidence that the court would render its decision.
The court has previously filed a memorandum opinion to support its
1979 judgment, and the findings and conclusions in thal m CJI:lndum
opinion are incorporated herein, except that, if there is a conflict
between the 1979 memorandum and this memorandum, the findings of fact
and conclusions of law in this opinion will prevail.
J
Further, the court
adopts all of the stipulations of the parties as part of its findings of
fact.
Although the memorandum opinion of June 8, 1979 sets forth the
controversy involved and the positions of the respective parties, the
court summarizes the nature of the controversy as follows:
The named plaintiffs, representing two separate minority groups,
1/
Blacks and Mexican-Americans residing in the City of Lubbock, contend
that the at-large syste. of election of the four members of the City
Council of the City of Lubbock constitutes an abridgement and dilution
of their vote in such races.
They point out that thp at-large system
does not have any residency requirement, that th
candidates are r quir d
to receive a aajority oC the vote before being elected, that the candidates
run by a
n~bered
place, which constitutes an anti-single shot vo ing
practice, and that these requirements den
their constitutional righ s
under the Fifteenth Amendment and the Voting Rights Ac
amended.
of 1965 as
The plaintiffs have also pled a Fourte n h Amendment vlolallon,
1/
For the purposes of this opinion, the :erm "!1 Ican-Am('rlcans" will
be considered to include "Hispanics," "Spani h surnam~d" :lnd hoso! of
"Spanish-or igin, " Although the court recogni zes l h,ll d i I nc I "_ may
be drawn between the various terms, th court b I iI'\' S
1.1
"u('h dl ~[inc Ions
do not affect the findings in this ca ,and all such
au:'" ar c n. Id(' cd s
COMprising one minority class known as "N xican- o.'rl 1n".
C-2...
this second trial, and the dClcrmination of any such Fourteenth Amendment
violation is not necessary.
The def nd,'nt city and city offiClals
counter with the position that there is no dilution or denial of these
.inorities to fully participate in the election process in Lubbock,
Texas because Lubbock permits one to
~nnounce
and run for places on the
City Council without payment of a filing fee, the necessity of a petitlon,
or any other restriction; and that all parties, including minorities,
can
vote~out ~~~en~
of any poll tax and without any hindrance
whatsoever from the city or any of its officials.
In entering its initial judgment, this court attempted to follow
the standards and criteria as required by the United States Court of
Appeals for the Fifth Circuit in Zimmer v. HcKeithen, 485 F.2d 1297 (5th
Cir. 1973) (en bane), aff'd on other grounds sub nom. East Carroll Parish
School Rd. v. Karshall, 424 U.S. 636 (1976), and Nevett v. Sides, 571 F.2d
209 (5th Cir. 1978), cert. denied 446 U.S. 951 (1980), as well as the
United States Supreme Court in White v. Regester, 412 U.S. 755 (1973).
The decisions in Hobile and Rogers, citing Washington v. Davis, 426 U.S. 229
(1976), and other Supreme Court decisions, required a discriminatory
intent before relief could be given for an alleged Fifteenth Amendment
violation.
The Congress of the United States, in amending Section 2 of the Voting
Rights Act of 1965 on June 29, 1982, added language which has been referred
to as a "results" test as distinguished (rom the intent apparently required
by Hobile and Rogers.
The Congressional Record of the Committee Report
of the United States Senate on this voting rights amendment,
~
nate Rep. No.
97-417, 97th Cong., 2d Sess., re rinted in July 19 2 U. S. Code Congo 6
Ad. News 177, indicates that it was the intent of Congress to reestablish
the standards and criteria of the various circuit courts and lnited States
Supreme Court as the law existed in this area prior to Hob! Ie and Ro ers.
The Congress failed to require a di cd ioatory iotc'ot in plth"r th"
-3-
C-3
I"
the establishment
and,
Ul
1:l;lllllcn;lOce
of
3n
cl<:clicm practice or proC'cdllre
in addillon, set forth cenain sL03nd,HdlOi tllat it felt should l!;uide
the: courtS tn dCleroining whether there was a violation of the Fifteenth
Amendment and a violation of the
Vottn~
Rishts Act of
196~
as amended.
These changes, :'is enacted by the Congress of the United States, require
a di rrert:nl .ll.pro.lch to the problem 01 at -large elect ions than that
required prior LO such amendment or even that that \.las requi red by
Ziaaer and Neveu v. Sides.
Therefore, this court will an31yze the evidence at both the first
and second trials and apply s .... ch evidence to the standards as indicatetl
in the COtllIIlttee Report of the United States Senate.
These standards
are very sim11ar to those set forth in ZillltDer, but if there \las any
doubt prior to the amer1ment of the Voting Rights Act as to whether
or not discriainatory intention was required, that doubt has nolo' been
finally reltOved.
The removal of any requirement of discriminatory
intent as an ele.ent of recovery (or violations of the Fifteenth Amendment
or the Votlna Rights Act as . .ended requires a reevaluation of the
evidence.
This court viII not again recite the general facts but these are
cOCipletely found as findings of hct in the court's original opinion
on pages two throush five, inclusive.
HO'Jever, there has been some
updating of these facts and the evidence nO\o' shows the population in
1980 In the City o( Lubbock is 173,979. of which IH,039 or 71.8% aa
white. 14,204 or 8.2% are Slack, )l,08S or 17.9% aa Mexican-American,
aDd the reuining 3.6S1 or 2.1% are classified as ··others." (Supp.Stip.Ex."SS-127).
In analyzing the typical factors suggested by
he Senate Coonnttee's
Report. the court finds and concludes as {ollolo's:
-4-
c- .f-
A.
TlH._. .l.XTt.Nl
~lAL
O..!-~r'.I..1I1 STOkY
DlSCI\II11N~rJ~
This factor was disnlssed .:IS a primary ("nol" In thto' .1une 8. 1979
memorandum upInion on paKe )2 under "Effects of Polst niscrimln"lion."
A!Ii orig.:11011Iy lcmnd, and the ..:ourt again
tn Lubbock,
flnd~.
therf'
h",~ h~en
a hlslon
of official dl!>crimtnal ion and it h,lS been extcl,SlVC.
lc);.1S
Attached as Appendix A to the court's origlna] opInion are Texas Constitutional
provisions and Texas statutory lal.l. which also applied to Lubbock.
It
appears that racial discrimination was at one time the official poliCy
of this state. including denial of minodlies of their right tn VOle.
Although the court docs not find that such official discrimination exists
in Texas or tn LubboC"( today, it is almost uncontradicted that such
official discrimination did exist to a wide extent. at the turn of the
century and for many. man)' years thereafter,
In view of the court's
finding in its origind opinion that there was a histor)' of oHicial
dhcrilllination in the State of Texas and that these discriminatory
practices and procedures were 1n existence in the City of Lubbock in
the earlier years in the century. such factor points to the conclusion
thllt the present elect ion procedures in Lubbock result from p.1st
d hcr 1mi nat 10n.
B.
THE EXTENT TO WHICH VOTING IN
THE ELECTIONS OF LUBBOCK IS RACIALLY POLAR IUD
The originlll opinion, page 9, found evidence of raci.:\lly pol.1rized
voting in Lubbock.
this fact.
The hearing held in JanU;H)' oi 1983 further establishes
Although the facts used and consiJered b" plaIntiffs' expert
witness ""...1 )' h.1v(' omitted other contrihulln): {,1l,;lOrs.
-~-
h~
.l..l u<>(' th., i'videnci'
c-'
in the r cord of this case in reaching a determination that ther
racial polilriz,ll ion in the voting patterns of Lubbock.
based on a correlation method to measure
polari~ation
was
Ilis conclusions,
in voting. found
a very high correlation, .90 or more, in analyzing fifteen races where
Mexican-Americans ran and seven where Blacks were candidat &.
He
testified tl"ll a .5 finding would be a high correlation "f the measure
of polarizati n in voting but .9 as he found in most of the races analyzed
was very high, in fact two-thirds of them were above .9 and all above
.5.
The evidence poincs to the inescapable conclusion that there is a
high degree of polarized voting in Lubbock.
The defendants have correctly
pointed out that in reaching this correlation factor, the plainciffs'
expert witness, Dr. Robert R. Brischetto, used census data rather than
actual voters for one of the two measures in his study.
Nevertheless,
the court believes that the results he attained are so strong that, even
had precise voting statistics been available, polarized voting would
have been shown.
Although it is not the defendants' burden to furnish
controverting figures, defendants' own expert witness, Dr. Delbert A.
Taebel, after describing ecological fallacy and the effect factors other
than ethnicity might have on voting behavior, admitted that with correlations
as high as those found by Dr. Brischetto, there is polarized voting in
Lubbock, but Dr. Taebel qualified this statement by saying he believed
that ethnicity was not necessarily an "overriding" factor.
The existence of such a high degree of polarize. voting. on the
part of all races in Lubbock, is a factor strongly indicating that the
rights of minorities have been abridged or diluted
or color in the
~se
pcause of their race
of an at-large system.
c-~
C.
I
THE EXTENT TO WHICH LUBBOCK HAS USED
UNUSUALLY LARGE ELECTION DISTRICTS, ETC.
The evidence establishes the following:
I.
a dislrict
2.
That Lubbock, in using the at-large syslem of election, cons
0
I
ules
I.S square miles.
That Lubbock requires a majority vOle, or a runoff, before any
person can be elected as a member of the City Council.
3.
Although there is no ordinance prohibiting anti-single shot
voting, the requirement that the candidates for the City Council in
Lubbock, Texas announce for and run for a numbered plac
is tantamount
to an anti-single shot provision.
4.
There is no requirement that a candidate reside in a particular
section or area, which has resulted in the election of Anglo candidates
to the City Council from the west and southwest or predominantly Anglo
portions of the city.
This factor weighs heavily in favor of a finding of dilution or
abridgement of the rights of minorities to vote in Lubbock's at-large
elections.
D.
IS THERE A CANDIDATE SLATING PROCESS AND
ARE MINORITIES DENIED ACCESS TO THAT PROCESS
The court has not been convinced by the testimony al either trial
that there presently exists any candidate slaling process "
At one time. twenty-five or more years past, there was a
of Anglos. known as the "Empire Build rs."
certain
citi~ens
-7-
roup, made
This "as nOl a highl
group but consisted mainly of white business and
would meet and urg
Lubbock.
of Lubboc
pro~esslonal
lO
run lor
u~
structured
men who
Cltv
r
Ie'
C-1
••
o1nd
III
lurn
~i"t!
t
ho,lm their full suppOrL.
No minorit)' group member Is
knowll to have been invited or to have attended any of their mecti'lgs .
Apparent ly this organization has not existed for many years and there 1!>
no evidence of any other slating group in Lubbock.
Plaintiffs would urge that prior to the 1982 elections, ,) former
mayOr, Dr. Granberry, was the host fat
it
luncheon 03t the University City
Club at which fifty to sh.ty white business and professional men \Jere in
attendance (or the purpose of agreeing on candidates for city offices.
However, the evidence also shows that at least one prominent member of
the Black community was invited to the meeting and there was no discussion
or consideration given to "'hether or not minorities could attend or
would be invited to attend.
One witness testified that he had on at
least two occasions urged members of the minority community to run for
city office &.Iut had not been successful except in the case of a school
board mellber.
The court finds that there is no slating process in Lubbock and
therefore this factor does not ",eigh in plaintiffs' favor.
E.
THE EXTENT TO WHICH MINORITIES IN LUBBOCK
BEAR THE EFFECTS OF DISCRiMINATION IN AREAS
OF EDUCATION, EHPLOY'H'ENT. AND HEALTH
The evidence indicates that minorilies, in the past., were discriminated
against in the areas of education. employment. and health which, under
an at-large systea. results in a dilution or abridgement of minorities'
tight to vote.
While 74.8% of the Anglos are higt> school graduates, only
30.3% of the Mexican-Americans and 46.1% of the Blacks have high school
degrees (Ex.P-7A).
The unemplo)'ment rate as of July 1982 for lubbock
SMSA is 5% for Anglos, 8.6% for Black... , and 9 ...3% for Hexica:-.·Americ.e::s
(Supp.Stip.198).
According to the 1980 c .. nsus a [otal of 28.821 persons
-8-
c-~
in Lubbock County live below poverty level, of which lS,399 or S3.'
percent are eith r Mexican-American or Black (Supp.Stip.188).
At the
time that this court wrote its original opinion in June of 1979, the
infant mortality rate in the City of Lubbock was seventh highest in the
nation for citi s of its size, the majority of these deaths being among
minorities.
This factor has largely been remedied at this date as
indicated by the stipulation as to the testimony of R. D. Goodman (Ex.D-7A).
The health department budget has increased from 5787,684 in 1977-78 to
$1,739,673 in 1982-83, an increase of over 120% over this period of time
(Ex.D-6A).
In addition, the infant mortality rate in Lubbock has now
dropped below the state or national averages (Ex.D-7A).
Hr. Charlie Guy, a respected former editor of the local paper,
testified that when he first went on the school board in the 1930's he
was appalled by the condition of the schools where the minorities were
the predominant race.
He states that he immediately urged the school
board to rectify these conditions, and that a program was commenced to
do so.
Although Lubbock's schools are now largely desegregated, it did
take a lawsuit to effect such desegregation.
The evidence further establishes that the income of minorities is
much less than that of whites and in city employment this is also true
(Supp.Stip.170' Supp.Stip.Ex."SS-24").
The court concludes that the extent of past discrimination in such
areas as education, employment, and health has, according to the witnesses
on this subject, hindered their ability to participat
political process.
e fec ively in the
The extent of such discrimination h s greatly
n~rrowed
in recent years, but the effects on effective participation in the political
pro ess by minorities still exist.
-9-
This i
expr ssed in
cveral ways.
(I
one of .·hlch is th .. t millOr1l1CS do not votc Lccausc of thcir bclicf that
their vote ""ill not ,nean allY thing" and a gener .. l apathetic attitude
cxists on the part of thc minorities because of such past discrimination.
Ho"cver, it is noted that in rccent years, BlacK and
Mexican-Am~rican
registration has increased on a percentage basis to the degree it approxi ately
equals that of Anglos.
This is attributed mainly, if not solely, to
voter registration drives in the minority precincts in Lubbock.
F.
HAVE POLITICAL CAMPAIGNS IN LUBBOCK
BEEN CHARACTERIZED BY OVERT OR SUBTLE RACIAL APPEALS
There is no evidence in this record indicating that any racial
appeals have been made to the voters in political campaigns, and tnis
factor does not "eigh in favor of the plaintiffs.
G.
THE EXTENT TO WHICH MINORITY GROUPS
HAVE BEEN ELECTED TO PUBLIC OFFICE IN LUBBOCK
The amendment to the Voting Rights Act of 1965 states that one
factor the court may consider in determining whether plaintiffs are
entitled to relief is whether or not members of a protected class have
been elected to office in Lubbock.
There have been no Blacks or Mexican-
Americans elected to the City Council of Lubbock or to the office of
Hayor of Lubbock although many have announced their candidacy for such
offices and appeared on the ballot.
Statistics in rhis case indicate
that some minority candidates might have been elected had a single-member
system of election to these offices been in effect (Ex.P-8A).
Of course, it is axiomatic that minorities do no . under the Constitution or the Voting Rights Act, have a right to be elected,
Bolden, 446 U.S. 55 (1980); Vot}ng Rights Act,
42 U.S.C. t 1973('b), nor is there any right o.
City of Mobile v.
2(b) (June 29, 1982),
mlnorlll
S
l
have
-10C-IO
I
an election districl so framed as to
minority candidate.
----
gu~ranlee
or insure el cllon of a
Whitcomb v. Chavis, 403 U.S. 124 (1911).
But, under the totality of circumstances, the court finds that the
fact that there have been no minority members elected does mitigate in
favor of the plaintiffs.
Defendants point out that a Mexican-American has been elect d to
the school board in Lubbock which has boundary lines almost coinciding
with the boundary lines of the City of Lubbock; however, this member of
the school board was elected under a plurality-vote system.
Def ndants
also rely on the fact that there is a Mexican-American repre"enting the
Lubbock area in the Legislature in the State of Texas, but he waS elected
after the enactment of a law which created a singl -member district.
Prior to tha_, the at-large election for the Legislature was in effect
and .inorities were not elected during that period.
Likewise, a Black
was elected as a Justice of the Peace in the November 1982 elections as
a candidate of the Republican Party.
His Democratic opponent was a
Hexican-American, and this race is inapposite to this situation, because,
aga~~~.the
Justice of the Peace race occurred in a single-member district
and one minority ran against another minori y.
H.
HAS THERE BEEN RESPONSIVENESS ON THE PART
OF ELECTED CITIZENS TO THE PARTICULARIZED NEEDS
OF MINORITIES
LUBBOCK
Again, the court would refer to its memorandum opinion of June 8,
1979.
In that opinion the court detailed
h
evidence which prov d and
established, without doubt, that the City of Lubbock has, and for many
years past, responded
l~
these particclarized neeJs.
This factor
is not deemed to be one of the more important ones by the Senate
-11-
c- /1
Co~ittee,
but was emphasized in
~~
and other
c~ses.
If responsiveness
were the only factor to be considered by this court, judgment would b
entered for the defendants, because the overwhelming evidence establishes
a real responsiveness by the City of Lubbock, including its elected officials.
toward the rarticularized needs of the city's minority residents.
l.
WAS THERE DISCRIMINATORY INTENT PRESENT IN
ESTABLISHINC LUBBOCK'S AT-LARCE SYSTEM
Originally, the court, either expressly or impliedly, found that
there was no intent to discriminate against minorities when the at-large
system was established in Lubbock or in the maintenance of that system
today.
The court is still of the firm opinion that there is no
dis~rimina­
tory intent by the City of Lubbock or any of its officials in maintaining
the at-large system.
The policy is neutral on its face, and those of
the present officials of the City of Lubbock who testified are of the
opinion that its maintenance is in the best interests of civic management
and the most effective way to have its elected officials reply and be
responsive to all of its citizens.
However, this does not mean that discriminatory intent was not
present when the decision to employ the at-large system for election of
council members in Lubbock was made in 1917.
At the second trial,
evidence was introduced in the form of editorials from the old Lubbock
Avalanche newspaper in the period from 1909 to 1924 when a Mr. James L.
Dow was the editor, publisher and owner of this paper.
are shown in Plaintiffs' Ex.l-A.
These editorials
It is not known w..ether or not these
editorials represented the general views of the citizens of Lubbock, but
suffice it to say that Mr. Dow's editorials were unhesitant in exrressing
derogatory and vile remarks toward Blacks and show a bias and b'tterness
-12-
C -I]..
I
I
I
I
I
I
on his part toward the 1l1ack race.
The evidence also shows thilt Mr.
James L. Dow was a member of the City Charter Commission that pr pared
and submitted to the voters a charter to govern the City of Lubbock and
ptoviding for an at-large system for electing its council members.
In view of this additional evidence and in light of the past h s,ory
of discrimination, including discriminatory enactments by the Stat
Legislature. the court now concludes that the establishment of the a,large system for the election of City Council members in the City of
Lubbock was done with a discriminatory intent.
CONCLUSION
The above findings support a conclusion that the at-large e ection
system in Lubbock results in an abridgement or denial of the right of
minorities to vote.
Admittedly, all these factors do not point to such
resul:s. but under the totality of the circumstances such results are
found to exist in Lubbock and constitute a denial of the rights guaranteed
by the Fifteenth Amendment and the Voting Rights Act of 1965 as amended.
These findings indicate that the plaintiffs are entitled to relief.
As amended. Section 2(a) and (b) of the Voting Rights Act. 42 U.S.C.
S 1973. prOVides as Tollows:
"Sec. 2. (a) No voting qualification or prerequisite
to voting or standard. practice, or procedure shall be
imposed or applied by any State or political subdivision
in a manner which results in a denial or abridgement of
the right of any citizen of the United States to vote
on account of race or color. or in contravention of the
guarantees set forth in section 4(r)(2), as provided in
subsection (b).
"(b) A violation of subsection (a) is established if,
based on the totality of the circumstances, it is shown
that the political processes leading to nomination or
election in the State or politicul subdivision are not
equally open to participation by members of a class of
citizens protected by subsection (a) in that its member~
have less opportunity than other members of the electorate
-1 J-
~- /3
I
I
to participate in the political process and to elecl
representatives of their choice. The eXle:lt to which
members of a protected class have been elected to office
in the State or political Eubdivision is one circumstance
which~ay-b~consraered: Pro~~hat nothing in this
section establishes a right to have members of a protected
class elected in numbers equal to their proportion in the
population."
The question to be determined by the court, based on these relevant
factors and under the totality of the circumstances, is:
00 the members
of the two classes of minorities in this suit, Blacks and Mexican-Americans.
have less opportunity than the other members of the electorate to
participate in the election process and to elect members of their choice?
If so, the practice or procedure of the at-large system of the City of
Lubbock will be in violation of the Voting Rights Act of 1965 and relief
will be awarded.
The answer to this question is in the affirmative.
Un~er
the findings of the court with respect to the factors which the Congress
deemed to have been relevant to the determination of this question, and
under the totality of all of the circumstances and evidence in this case, it
is inescapable that the at-large system in Lubbock abridges and dilutes
minorities' opportunities to elect members of their own choice and that their
opportunity is much less than that of the other members of -the electorate.
In view of such conclusions and findings, the court further finds
that the Voting Rights Act of 1965 as amended, §§ 2(a) and 2(b), prohibit
the further use of the at-large system for the election of City Council
members in the City of Lubbock, Texas.
Secondly, as the court has determined above that discriminatory
intent was involved in the original establishment of the at-large system
in Lubbock in the year 1917, that such at-large system iJ a violation of
the Fifteenth Amendment of the Constitution of the United States even
though discriminatori intent is not required by the ConGrpss In til
-14-
Voting Rights Act, the finding of discriminatory Intent In this case
fulfills the requirements of Mobile and Rogers.
By order of even date herewith, the court will submit its proposed
plan for redistricting the city.
Th
Clerk will furnish a copy hereof to each attorney.
ENTERED this 20th day of January, 1983.
HALBERT O. WOODWARD
Chief Judge
Northern District of Texas
-15-
C!-/f"
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
REV. ROY JONES, et al.,
JOSEPH /.~::l "''''''
J" CLE.• !.•
[\.....
'-' .....
--
Plaintiffs,
L:-;:·u:·P·
v.
CIVIL ACTION NO. CA-5-76-34
CITY OF LUBBOCK, TEXAS, et al.,
Defendants.
oRDE R
The court has by memorandum opinion of this date found that the atlarge system for the election of City Council members in the City of
Lubbock violates the Fifteenth Amendment of the Con titution o! .he
United States and the Voting Rights Act of 1965 as amended on June 29,
1982.
The court has prepared and attaches hereto two proposed plans for
creating single-member districts for the election of City Council members.
One, Appendix A, is a four-member plan for the City Council and the
other, Appendix B, is for six members.
These plans were prepared by the
court from the statistics and evidence produced by Supplemental Stipulated
Ex. "SS-4."
Initially, the court proposes to order that the elections b
f~r
staggered terms, with one-half of the City Council members elected every
two years and the terms to be determined by lot. and with the requirement
that a candidate must reside within the district from which he seeks
election.
Also, the court presently intends to order tha
the councilmen
be elected by a majority vote as well as the Mayor. who will be elected
to a two-year term by the voters at large in Lubbock.
However, before entering the final judgment in this case, the court
requests the attorneys to submit any suggestions or alterations to these
proposed plans, or point out
ny other problems that may exist.
The
C-/~
I
I
I
I
I
court has chosen Supplemental Stipulated Ex."SS-4" as the basis for the
redistricting because it is based on the present voting precincts and
seems to cOlllply with the "one
_n - one
vote" requirement.
If the
attorneys feel that there is an improper variation, the court would be
happy to entertain a plan that would split one of the voting precincts
in order to equali&e the number of voters in each district.
Your replies will be filed with the Clerk of this court on or
before March 1, 1983.
The Clerk will furnish a copy hereof to each attorney.
£h!ERED this 20th day of January,
""
~
t~.ARD
Chief Judge
Northern District of Texas
-2-
(!
-11
FOUR-K£K.8ER Pl.\N
IDEAL DISTIlICT:
DISTRICT NO.: I
CITY PRECINCT
NUMBER:
TOTAL
43,495
ANGLO/WHITE
BLACK
OTHER
MEXICAN-AMERICAN
1
4,480
988
86
3.330
76
2
4,174
2,024
394
1.668
88
3
6,636
2,281
139
4.009
207
4
4,735
1,064
411
3.141
119
5
1,721
238
403
1,066
14
6
7,082
517
4,138
,.349
78
8
1,793
1,034
270
410
79
20
3,355
19
2,909
400
27
26
6,393
2,708
168
3,393
124
40
3,510
166
2,183
1,119
42
51
231
44,110
14
11,053 (25%)
(
217
11,318 (25.7%)
0
20.885 (47.3%»
0
854 (2:
V
73% Combined Black and
Mexican-American
DEVlATlON: + 1.4%
DISTRICT NO.: 2
270
65
11
55
37
27
11
4,721
4,296
90
12
2,978
2,875
15
2,165
2,076
12
50
16
2,402
2,181
13
175
33
17
2,624
2,189
52
312
71
18
2,098
1.787
90
182
39
19
6,957
3.638
325
2.822
172
23
2,127
2,045
16
40
26
24
3,929
3,505
73
303
48
25
3,905
3.250
74
501
80
APPENDIX A
Page 1
C-/f
DISTRICT NO.: 2 -- Continued
CITY PRECINCT
NUMIlER:
TOTAL
28
4,059
29
4,474
42,439
ANGLO/WHITE
3,836
3,898
35,576 (83.8%)
BLACK
47
140
943 (2.2%)
OTHER
MEXICAN-AMERICAN
112
64
379
5,201 (12.3%)
__
5_7_
:719(1.;
DEVlATION: - 2.4%
DISTRICT NO.: 3
21
4,539
3,991
33
430
85
22
3,754
3,494
39
190
31
27
5,366
4,882
120
241
123
30
5,255
4,874
72
203
106
46
5,733
5,385
101
128
119
52
6,276
5,739
101
295
141
60
2,045
1,953
2
44
46
61
2,132
1,936
36
71
89
62
7,742
42,842
DEVlATION:
7,284
39,538 (92.3%)
70
574 (1. 3 %)
179
1,781 (4.2%)
209
949(2.
- 1.5%
DISTRICT NO.: 4
4,008
3,797
9
139
63
9
- 5-,168
4,569
100
410
89
10
2,021
1,375
155
463
28
13
4,496
4,131
81
216
66
14
2,862
2,546
34
209
73
47
5,009
4,558
105
235
III
49
1,400
1,249
78
53
20
50
5,313
4,898
117
160
138
53
3,822
3,290
132
285
115
55
3,357
2,369
261
533
194
56
1,502
1,213
78
130
81
57
794
751
0
30
13
58
34
14
0
17
APPENDIX A -- Page 2
C-/9
••
••
•
I
DISTRICT NO.: " -- Continued
CITY PRECINCT
NUKBER:
TOTAL
S9
4,621
44 ,407
ANGLO/WITE
8LACK
3,944
216
38,704 (87.2%) 1,366 0%)
KEXlCA.~-AMER]CAN
DEVIATION: + 2.1%
TOP TO BOITOH DEVIATION: 4.5
181
168
Derived frOll: Supp. SUp. Ex. "55-4"
APPENDIX A -- Page 3
OTHER
347
114
3,227 (7.3%) 1,108(2.S%)
10
SIX-MEMBER PLAN
IDEAL DISTRICT:
DISTRICT NO.: 1
CITY PRECINCT
NUMBER
TOTAL
28,997
ANGLO/WHITE
BU.CK
MEXICAN-AMERICAN
OTHER
1
4,480
988
86
3,330
76
2
4,174
2,024
394
1,668
88
3
6,636
2,281
139
4,009
207
4
4,735
1,064
411
3,141
119
5
1,721
238
403
1,066
14
8
1,793
1,034
270
410
79
10
2,021
1,375
155
463
28
55
3,357
28,917
2,369
11,373 (39.3%)
261
2,119 (7.3%)
533
14,620 (50.6%)
19
805 (2.1
DEVIATION: -0.3%
DISTRICT NO.: 2
6
7,082
517
4,138
2,349
78
19
6,957
3,638
325
2,822
172
20
3,355
19
2,909
400
27
26
6,393
2,708
168
3,393
124
40
3,510
166
2,183
1,119
42
51
231
27,528
14
7,062 (25.7%)
217
9,940 (36%)
0
10,083 ()6.6%)
0
4430.f
DEVIATION: - 5.1%
DISTRICT NO.: 3
11
4,721
4,296
90
270
65
14
2,862
2,546
34
209
73
15
2,165
2,076
12
50
27
16
2,402
2,181
13
175
33
17
2,624
2,189
52
312
71
18
2,098
1,787
90
182
39
24
3,929
3,505
73
303
APPENDIX B -- Page 1
C-],...!
~
DISTRICT NO.: 3 -- Continued
CITY PRECINCT
ANGLO/WHITE
TOTAL
NUI1IlER
25
3,905
29
4,474
29,180
BLACK
3,250
3,898
25,728 (88.2%)
MEXICAN-AMERICAN
74
140
578 (i.9%)
501
379
2,381 (8.2%)
OTHER
80
57
493(1.7;
DEVIATION: + 0.6%
DISTRICT. NO. : 4
12
2,978
2,875
11
55
37
22
3,754
3,494
39
BO
31
23
2,127
2,045
16
40
26
28
4,059
3,836
47
112
64
48
5,733
5,385
101
128
119
52
6,276
5,739
101
295
141
60
2,045
1,953
2
44
46
61
2,132
29,104
1,936
27,263 (93.7%)
36
353 (1. 2%)
71
935 (3.2%)
89
553(1.9
DEVIATION: + 0.4%
DISTRICT NO.: 5
7
4,008
3,797
9
139
63
21
4...5..39
3,991
33
430
85
27
5,366
4,882
120
241
123
30
5,255
4,874
72
203
106
53
3,822
3,290
132
285
115
62
7,742
30,732
7,284
28,118 (91. 5%)
70
436 (1. 4%)
179
1.477 (4.8%)
209
701(2.3
DEVIATION: + 6.0%
DISTRICT NO.: 6
9
5,168
4,569
100
410
89
13
4,496
4,131
81
216
b(.
47
5,009
4,558
105
235
111
49
1,400
1,249
78
53
20
50
5,313
4,898
117
160
APPEIWIX B -- Page 2
138
C-l.2.-
DISTRICT NO.: 6 -- Continued
CITY PRECINCT
NUMBER
TOTAL
ANGLO/WHITE
BUCK
KEXICAN-AHERICAN
OTHER
56
1.502
1.213
78
130
81
57
794
751
0
30
13
58
34
14
0
17
3
59
4,621
28.337
3.944
25.327 (89.4%)
216
775 (2.7%)
347
1.598 (5.6%)
114
635(2.2%)
DEVIATION: - 2.3%
TOP TO BOTTOM DEVIATlON: 11.1
UNASSIGNED
181
168
Derived (rOlll: Supp. Stip. Ex. "SS-4"
APPENDIX B -- Page 3
3
10
0
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
REV. ROY JONES, et a1.,
Plaintiffs,
v.
)
)
)
)
)
)
NMlCY 6. HALL. CLcilK
CIVIL ACTION NO. CA-5-76-34
CITY OF LUBBOCK, TEXAS, et a1. ,)
Defendants.
)
)
ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW
Subsequent to the entry of the court's order on January 20, 1983.
a hearing was held with all parties represented by counsel, and the
court files this additional memorandum which shall constitute additional
findings of fact and conclusions of law.
The court finds that the attached exhibit Supp. Stip. Ex. SS-4A,
correctly sets forth the total population, and the racial and ethnic
breakdown of such population, for each voting precinct within the confines
of the City of Lubbock, Texas.
Further, the court finds that the division of the City of Lubbock
iDto sis.districts csn be accomplished as shown by
attached hereto.
Exhibit~,
which is
Exhibic A lists the election or voting precincts which
are to be included within each district for the purpose of electing city
11
councibaen.
Exhibit A also bresks down the total population in each of
the districts and in the voting precincts by ethnic and racial background.
The court finds that the average population in each district would
be 28,997, and although none of the districts contain chis exact population,
11
In this aeaorandua ~d in t~~ final judgment of the court to be entered
herein, the term "councilman" !Ihall be generic and includes members of either
sex.
the variation from the average is from a minus 6% (for District 4)-to a
plus 5.5% (for District 3), being a top-to-bottom deviation of 11.5%.
Although this top-to-bottom variation is aomewhat larger than an ideal,
it is justified under the facts and circuastances existing in the City
of Lubbock at this time.
District 4 which has a -6% deviation is a
fsst groving area of the city and is very likely to 1ncresse in population
more than in the other districts in the city.
Also, no population has
been assigned to existing Precinct 67, which is likewise within District 4,
because of the unavailability of census figures.
ObViously the population
in this district would reduce the -6% to a amoewhat lover figure.
Further, the plan
to be ordered i. the only feasible plan of which
thi. court is aware that would not divide voting precincts into separate
districts, and any such division would create confusion in the minds of the
voters and in the administration of the election laws.
The districts to be ordered in the judgment of this court are
ca.pact, contiguous, and follow natural boundary l1nes in many instances.
To force a change in the district from that which is to be ordered by the
court, would de.troy the compactness and contiguous nature of these districts
and the court feels that the advantages of the plan whIch is ordered outweigh
any inequities that aight result because of the top-to-bottom deviation
of 11.5%.
These inequities are minimal and do not pose any threat to a
deprivation of constitutional rights to any individual or groups of
individual••
A. outlined in Exhibit A, the plan substantially complies with the
one aan--one vote requirement and is the most desirable plan under all
of the c1rcuastances.
The division of the City of Lubbock into six districts removes any
constitutional defects which existed under the old at-large plan.
-2-
It
c- 2S"
was not the intention of the court nor does the sjx-member plan envision
or guarantee any minority of a aeat on the city council, nor does it
attempt to insure exact racially balanced representation.
The court has further carefully considered the unique problems
which the defendants contend exist concerning a mayor pro tem.
Two
svenues could be used in solving the problem, one by election the mayor
pro tem. by an at-large election (which would result in an
ei~ht-member
council) or providing that the aayor pro tem. would be elected by the
members of the city council.
than an at-large election.
The latter approach has fewer drawbacks
The present city council would be increased
from five to seven rather than eight, and the possibility of tie votes
would be reduced under a seven-member council plan.
The election of
the mayor pro tem. by the other members of the city council does not
pose any threat of constitutional violations.
A final judgment will be entered accordingly.
The Clerk will furnish a copy hereof to each sttorney.
ENTERED this
1--~y
of Karch, 1983.
z.~-~
HALBERT 0.' WOODWARD
Chief Judge
Northern District of Texas
-3-
c- 2(."
U • • I ~'I::j C'.)I./-,
NO:'III~'N OI!oUt(f 01
~
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
REV. ROY JONES. et a1..
Plaintiffs •
v.
)
)
)
)
)
)
tfl.'
I lED
i.I..:':i?
t! 1981 -.
~
'I
-t--K
. '( .... . /_'A
t l. . . . .
.........ufy
CIVIL ACTION NO. CA-5-76-34
CITY OF LUBBOCK. TEXAS. et a1. .)
Defendants.
)
)
FINAL JUDGMENT
The above-entitled and numbered cause came on to be heard before
the court. without a jury, with all parties represented by counsel, and
va. tried on its merits on January 10-13, 1983.
Further, pursuant to an
order of the court. an additional hearing on the remedy to be ordered in
accordance
OD
~ith
the court's original opinion was held in Lubbock, Texas
March 4, 1983, with all parties represented by counsel.
Therefore the following judgment and order is entered:
1.
Commencing with the regular city elections to be held in April
of 1984. the City Council of the City of Lubbock shall be comprised
of .ix .eabers. elected from each of the geographical districts as
1/
shown on EXhibits A and B attached heret~ and a Mayor. To be eligible
for election from any district, the candidate must be a bona fide
re.ident within such district at the time of filing for office and, if
elected, .ust continue to reside therein during the term of his office.
2.
In addition to the six councilmen to be elected from each
district as set forth above, the city council shall consist of a mayor
Who .ust reside in the City of Lubbock at the time of filing for office
and continue to reside therein during the term of office.
1/
II
)
Jc.f1~
The election precincts as shown on Exhibit A and Exhibit B are taken
froa Suppleaental Stipulated Exhibit SS-4A.
I
I
I
I
I
••
3.
All candidates for city council and ••yor shall be further
quaUfied and eligible to hold office under the 1.... 5 of the State of
Tex•• and the ordinances of the City of Lubbock, where
.&De
are not in
conflict herewith.
4.
The mayor shall serve for .. period of two years, to be elected
initially at the city dection to be held in April of
198~.
and every
two years thereafter.
5.
City councilmen shall be elected for terms of four years, except:
Counci1lllen from Districts I, 3, and 5 shall be elec"led for 8
tvo year ten, cOIIllItenclng with the April elections of 1984 and for four
years commencing in 1986 and each four years thereafter.
Council.en from Districts 2. 4. and 6 shall be elected for
four year tenDS, cOCIZIIencing with the April elections of 1984.
6.
All places on the city council. including the mayor shall be
elected by • aajority vote of the quaUfied voters and the city council
.hall aAke appropriate provisions for any runoffs when necessary.
7.
In the case of the city councilmen to be elected from the six
districts herein established, only qualified voters who are bona fide
residents vi thin a district .ay vote for or against the candidates
running for councilaan in that district, but the mayor shall be elec.ted
by a ••jorily vote of all the qualHied voters in the City of LubbOCK,
Tex.s.
8.
Each council. .n and the mayor shall have a vote on all matters
Co-inl before the city council, but the city council shall set its own
rules for procedure, including the establishment of a quorum for transacting
business and the procedures to be foll~ed in csse of a tie-vote.
-2-
elY
'.
9.
The memLers of the city council shall elect a mayor pro tem.
from one of its own members and such election shall be held at the first
regular meeting of the city council after the nevly elected members have
qualified and taken their aeat on the council.
Costs and attorneys' fees viII be assessed against the defendants.
The Clerk vill furnish a copy hereof to each attorney.
ENTERED this
K
~ day of Harch, 1983.
0~
~~~
~ERT
O. WOODWARD
Chief Judge
Northern District of Texas
-3-
SIX SINGLE-MEMBER DISTRICT PLAN. WITH HAYOR
ELECTED AT-LARGE
IDEAL DISTRICT:
28,997
DISTRICT NO.1
The councilman for District 1 shall be a resident of one of the voting precincts within
this District throughout his term of office.
CITY PRECINCT
NUMBER
TOTAL
ANGLO/WHITE
BLACK
MEXICAN-AMERICAN
OTHER
1
4,480
988
86
3,330
76
2
4,174
2,024
394
1,668
88
3
6,636
2,281
139
4,009
207
4
4,735
1,064
411
3,141
119
5
1,721
238
403
1,066
14
10
3,523
2,588
233
593
109
8
5,150
3,403
531
943
273
63
(none by
30,419
census~)~~~~
12,586 (41.4%)
2,197 (7.2%)
14,750 (48.5%)
~(2.9%)
DEVIATION: +4.9%
DISTRICT NO.2
The councilman for District 2 shall be a resident of one of the voting precincts within
t~is District throughout his term of office.
6
7,082
517
4,138
2,349
78
19
6,957
3,638
325
2,822
172
20
3,586
33
3,126
400
27
26
6,393
2,708
168
3,393
124
40
3,510
27,528
166
7,062 (25.6%)
1,119
2,183
9,940 ()6.1%) 10,083 ()6.6%)
4
2
3 (1.6%)
DEVIATION: -5.06%
EXHIBIT A -- Page 1
C· 30
DISTRICT NO.3
The councilman for District 3 shall be a resident of one of the voting precincts
this District throughout his term of office.
wjth~n
CITY PRECINCT
NUMBER
TOTAL
ANGLO/WHITE
49
1,400
1,249
78
53
20
11
4,721
4,296
90
270
65
14
2,862
2,546
34
209
73
15
2,165
2,076
12
50
27
16
2,402
2,181
13
175
33
17
2,624
2,189
52
312
71
18
2,098
1,787
90
182
39
24
3,929
3,505
73
303
48
25
3,905
3,250
74
501
80
29
4,474
30,580
BLACK
3,898
26,977 (88.2%)
MEXICAN-AMERICAN
140
656 (2.1%)
379
2,434 (8%)
OTHER
57
513 (1. 7%
DEVIATION: +5.5%
DISTRICT NO. 4
The councilman for District 4 shall be a resident of one of the voting precincts within
this District throughout his term of office.
12
2,978
2,875
11
55
37
23
2,127
2,045
16
40
26
28
4,059
3,836
47
112
64
48
4,321
4,033
96
116
76
52
2,796
2,428
80
203
85
54
3,665
3, .. 90
16
59
100
60
2,045
1,953
2
4
46
61
5,269
4,847
71
152
199
781 (2.91)
633 (2.3%
67
(none by census)
25,507 (93.6%)
27,260
339 (1.21)
DEVLATION: -6.0%
EXHIBIT A -- Page 2
C-3/
DISTRICT NO.5
The councilman for District 5 shall be a resident of one of the voting precincts within
this District throughout his term of office.
CITY PRECINCT
NUMJlER
TOTAL
ANGLO/WHITE
BLACK
MEXICAN-AMERICAN
OTHER
22
3,754
3,494
39
190
31
21
4,539
3,991
33
430
85
30
5,255
4,874
72
203
106
27
5,366
4,882
120
241
123
j3
3,822
3,290
132
285
115
55
494
473
2
12
62
4,605
",373
35
98
66
733
28,568
700
26,077 (91. 3%)
8
441 (1. 5%)
13
1,472 (5.2%)
99
12
578 (2%)
DEVIATION: -1.5%
DISTRICT NO. 6
The councilman for District 6 shall be a resident of one of the voting precincts within
this District throughout his term of office.
4,008
3,797
9
139
63
9
5,168
4,569
100
410
89
13
4,496
4,131
81
217
67
47
5,009
4,558
105
235
III
50
5,313
4,898
117
160
138
57
794
751
0
30
13
58
34
14
0
17
3
59
4,621
29,443
3,944
26,662 (90.6%)
216
628 (2.1%)
347
1,555 (5.31;)
11
59
(2%)
DEVIATION: +1.5%
TOP TO BOTTOM DEVIATION: 11.5%
168
181
UNASSIGNED
Derived from: Supp. Stip. Ex. "SS-4A"
3
10
0
EXHIBIT A -- Page 3
C·32-
~
ttt~
#'
I
. I
I '
!
() I I
II
I
D ()
I
II
~
~~l'>.'''l.!:''"~-jf-t++I+.jlf!Lrl!-T+I Hfp7-Htt+
1+-H-~~~-lHi+rjf+1 +11H-'WW-,-l---,:
i
I
>II
.~
# 1
I
J T. t. \
I
~
I
II I
II I
~ lIDO
I I
II I
I II II
~ I
I
fJ
I
I
I
I
II
II
II
t
'I
I I
i
I
II
i _'
1;---OJ).,t..<:.,"_ _-+--l..-,li!!.--r--:.l.-A!f!l<!{Jt-t-!I+-++-+---t-,--1C!.'-+~1 +1.:...+
I--Ll
•
1f <,
'...,--t'-I--7+-++-+rt~'rf--H4ri'-+-J'++-+_-J'-'"-tt--t
I I
I
'
I ,,
, 'I
"
"..-....:G!
.--:::;:·"<t>~t-L-_-_-ij--.---J.,~'~~~b=-tl =_~/~IJgO.~O=_t~+~"'4 ----+h:--+f.,~,,-,.'t~~~,tt'ilt=-j:~::t:
_W\,..te..1<
M-; A...
ll,~:l8!~'!;-t-r.K3'f:l-I'4!-:-h'+r+--t7I-++II.1.Il--~'.1.:HI..,..,..:'I-..g..:''+--4'_'
~\
#' 'i
I
'l
~!il
I~
I
211 II '!
~ fiji TI I
r.
I
I I Ii"
I
II II
I
~
II
I
I
iI
I
II
I II I
I '
,
"
II"
6 n..::I.L.J<:::---1~i-t'4'ltige.,-+rt+~.I-++"4-i-4--h'+;..LiI+--tl'.g.jI++-~I-4.j
I-.S!.!.!
II..J-!'I--"
11 ++-If-'+1-++'.:..14-..-+1'4'+H+-+'i+l
III-H----f-+J'-4-I-+lm
-----....4++1
l++ll~"
;.-::-----4,-H"+H1-H--rtt+l'-t-;T-:-'+tt+I+tl-r-tr+:tlH+
1-;-;f-T'+H-H-"';:'4'ml++-;" J
P~
...JII-HI-H4
I-++-..:+
'yJ+'-t-''-t-'T+tt+t--+n''m'+--=~4-!-1 J.H-H-H
,1;++,;,,++-11..
+:+l.:1'++4'-HI~r+-f-'+t"-+I+--1~
I . -+1++--++"~4-~I~I.:.l.fI_.
-,-----;--+4'..,..,.+..;,.-1L-':""~'+~I*_'+-+--tfIT' f-:--fl..14 '--..y'f-~II+-..j.-l"
" /1.
".'
I"
,.
II I I
J. _. I'
.._...~.:~-;;;;-::;,. ": ... ~ W ~ '--~ •••
._ - .-." . -.'
.;..-'
c- 33
I
.
'1'•• ,
I.
:
II
I
I
:itt
(>
17
. Otw...r
;
I
as
!f
1-\." t.
I
I
•
~
,~",
~
I
"---.:;;c;---H-H+Ht-tttt+tt-H-++H+t+-HH+t+H4-H+H-1f-':-++1@j..J1
H:5?
I
I
o
0
II
IMftl
I
I
3
" - - 7. .--irltHt+t-HHttt++H+H+h-l+tt+++-rtH+H+-i-if.H-f.H-l"
aI.~
,,01'_1
II'
"
"
!
!
I"
K
II
.1.
'I.
on..
0
0 U
11
01
RI
0
I
I
•
I I
I
f
I
I
"-~7I.--Hirttt+t--i~;-+t+tt-t+--HH++H-r-tt++H-H4+++-++-++;';+:+l-I~ 16
"
I
,,' RIb-c.1{
II" to-I,,_
o
0
~.
III II
III I
III I
,
6.7
15
'f
,,"'c....
I
I
I
I
I II II
II II
I
"---;:;~--T+;-:+:-tt-+rbfttt--:-+t-+i-T+-++-+-+-f-jH~~"':~
Ii '+'~'_
•
#/2
I'
.1111 ,
" T. r. I
l'i
il7kl
I<1I\.r..
" 3/•• k"
..
I
M .. ~A
()Tio. _
"
I
()
5"
1111'
I'
Sis
I
17 III
If
;l!
. II
I
II,
I
[ Ii
iii
I I -:
,
o.
I.
I
I
I
0
"
'---.--+tt+++t+-+-H11-,-H'-t+-H
1-,-j1+;.11f--+-+--+-'C=+-+--+--+",,:,'-J._
,------Ht++++t+t++'t++t-Lf
t-Lj'-L1+f-ri-+-+...:':;+!'--;-I+..,..+....;.'-+'-
• -------cHt++++t-.y-I~
IH_t__+_+_++-ly..:.'_+
I
I
I
. ~ I,
I
I,
I
I
I
·------Ltr'~''rl,..--t.:'..Lf--+-1-+f-I-+-+--:.-::...'~,----~-:I oJ.~~
_.!. _ .• ~. . . ,
! J •
•
"0
_
I
•
i
1<;
7
I)1\..
*' 1'1
"
lJ"
r
{\\
0",", ~
,I(
I
I
I~
", ,--#1.5
&.1.
I
1
I
I
10 !n
II It,
I
I
.[(
, I
II I
3
'!
! S
I
II
.. T.,... \
10
I
I
'"
"
I
I
I
i
I
"
II
,
II
.\
f
II
I
II
I
I
TI
!
,I
,1
I
,
~
! •
! h
I
I
I,
I
I
II
I
I
I
I
s
I
I
I
l
j I
i
I
I
Ii
{)
II itdli
,I
II
I
f
I
, II
I
,~
I
I
'I I
i
I
I
I
I'
I
I
I
3
i T II I I
r I I t
I
:'1:
! T jf I
i I I' I
"--:;--:-;---,.-++tl-t+l--ttTH
1++1-+'+H:++f+-r+-'H,++-!l'+--l-i-T+H+--:t+-+'rrt--r
"
it:. H.
,
1 I
,
i I' I I
I II II
I
,I
l
i
I
., T" t ~ \
'I I!:l1l1ol.J
VJ"':~.
n ~.1. .\<
.. I'<.~ _.,,_
I
,:
I
()
I
[if
3
I
I 'I
II I'
, :I II
I
I Iii
r
I' II
I
If
f II II
0
5
I
II
I
,I
I
r
.
I
F I,
II
I I
1
"".-~;-;;;---+t
"+Hftth'f'+tl-t+I-T-t
,++++1t+--:+H++H-HH+t++-'r+11
-t+
I lht_
1'+M
' 'rl"'r-oo=-':#.:=-,.I,,7,---...;.'-++'+-t1-1±-Y
11-++1-++1---.:;.'-++HI-f+:
If--++
1++++J-l_H
i!++-H-I"";""++4
T~t.. 1
.. I
!h
I i
I I I
"
~,.
.,...
" w....;\
Co
" Q.I... ~
.. M.
tl.
..
t>~.f"
3 . fi
I
I
~
I
II
1'1
0'
I
"
I')
!
.,
1
I
I
01
"
j
,.
I
f
r .I
!
I
I
I
I
I
I
I
II
1
I
"-~:-,;;;----'-++tl'+rt-~Y+.Lf---++t+TJ-1-':"'"¥i+fJ4--+--+~1
+-+---:'+•
f1: /~
I
'
' II
"
~,,:t~
7,
~.2
,II
j
TI
I
,
I _.;-1"-------4+,1
' ~Ir---i1+'+-+t-'+,11i1--+--+--+_t-'_'+--+-_I--
,,------I-r..J'4+11-";".:...;.+'-+1'I-+~I,+-' 14--+4-+-~r.-:-l-_1-1_-!-1
..
II;
II,
I
I
I
I I
',I
.j
I
I
I
I
.- - ---+.,-,:¥,':+-,,-t-t-t-I ++-+--+-'Y--!-'~:-'-+I-·-+t
I
. -
I
I
I
I.
.
f
I,
, t'f'Cs.._"fll
I .•
~t_,
IV,tL
....
'
~\ .. ,l<
"
)11... ,
\
i
I
II/bb
I(
'7
•,
I
f I
I
... .
:I&<.(
,
'"\uoA
b
~~
"7
0
I'
I~
t.
,
7'
'\.
~
l-
",
I
I'
oi
5'
I
I
S~
, I
I
7\
Iii
0
i
'f
II
~
I~
()
~
~
II(
.... ~-
I'Y't'-
-
,
•
11::1
III
II:~
I
"II Ill'
5
,
I.
I
,I
I
I
#.JY
T
,,. "
!
il"
.~.\
\.u\,,~,.
Rl ,\<,
......... f.,
!~
'1m
O"'""'..~
II
~1
II
I
2
T
I I
T
i
I
I
I
!,
I
I
..
I
I
i,
I
I
• I
I
.
I
I
I
I
II
I
, T,
TI
I
II
I
~
~
I
I
.1
!
.I
~
I
I
I
I
I
,
f
i II
I " TiT
,I f "
I
.«
I
I
01
I
1303
.,
..
II,;
!'il
~.~
",
.,
I
·
#023
T_T_\
I
I
,
t
f
I
If
I 0
I
Ill"':+-.
" R, \(
• k.._ Pt.
OJ
I'
l
lI'.J2..
I.T.I
II
I
,
j
W~:~~
"
j
II
I
•
"•
I
~
"I
•
II
i
~
"
••
•..
I
~
,
~lt
~IO..".
•
~
2-
"',
I
~
I:
II.%.
,•
#2/
Tor .. \
·
k
~.
~I.:h.
~I",-X
~
A
~
III
l>'..:~_
II
·
.:
I·
~
DRl21l
• ' ..I
•
.'
3
,
#" 20
."
•
"
•
..I
()
n
•
"
I
III
I ..'.
•
"ti
~
I
"W
~
u
r.. 1
I.r.•.
III
# /,
I·
i.,
,
,., •• ~ 'Cll(6
1~1r'"
-.
rl±
--.
I
I
I
II'
I
I
I
,
1
I
I
:
I,--------~
_.
-
I
I .' lV"':t...
I
I • T.,..\
I·
~-..
,-"t
~~
I
i
I
(
i
l'i
I
~_
~~r
II
II
I
I
II
16
r
I
#:Jc.
" W",-:t•.
.'
~I_ ,l(
.'~A.
I
~~
>
'it27
• T.t_\
·
•
,
I~,
~'.t"
I
I
~
I
I
!7OiS
If
I
is
It.
'I
3
9\
II
,
I
,i
,
II
I I
i
\
I II
I
5
R
1'1"'t\...~.,.
3
1.0{
~\
~L~
I
~I
~
Ii
II
'T:'\-.•\
,
lu\,,-1' <a-
..
.
\SI......\('
"'"
U
"
"
II
...
I
II
1\
~.~
II
.
"
Uilib
Iii
I
I
,
~
III
,
WIo.;tc..
~l~.~
_~_A.
,
1.1
I
I
II
I
I
, I
r 1
I
,
)
I
I
"
II
I
\
W
I
r
,I
I
'-
I,
l
I
II
j I
I
,
,
I
, II
I I
I
i
I
l
,
,
,
,
0
I
I
I,
•
I
I
I I r
,
,
,
;
:
I:
I
I
Il;
I;
~
I
,
•
•
f
,
I
II
"Iii
,
I
I
I
" I'
,
I I '
I
I
.,
I
II
I
I
II
3:'
il I'
I
•t
,
!
I'{
"
Iii II
I"
' I
.-
:t..,
I
I
II Ii
I:
I.
!
•I
,
I
II
I
I
I
I II
T
I
I
I
•
~_D
I,
I
I
I
!
j
I
1(0 0
/
I
I
•,
1'J~
;
.
,
I
5'j
III
I s:l5i"
1 I/'t7
1
7.:~_\
~
II
•t
I'
~"
1!!l7
#_~o
_~J'-
."
,'0'
'I
I
I
"«i
ttRtltt
I
I
IT
I
t"fl
I
I
~
2!
M.2'1
~
I
I
II
I
I
C>
~
I
i
'I
oT
I
T•
I
,
l
II
I
I, I
I
I
h
RI
•
I
"~o
~J 01
1
~,p,,,,,,
1'.\
w.... :~.
I~..•
,
'1
0
~\ ...,\r(
lt~"1
I~.
:1,1 ..
ill
1
J
I
0
}
,,
I
I
I
I
.
,
IIlQSl:l
&1_ ,I(
t-\.....
.
II
l3.'llXs
r"r.t"~l
~
.
.~
I.T:
#"~S
I
.
,
r J '--~
. __
I
,I
i
I
I'
I
I
I II
I
IT
I,
I
II
,
I
II
I,
I
I
!- I
c· 3 7
...
_....
_-.
,
17.....
.Iii
s·
"1
I
-Jt 'f1
I
1
ott..
I
I
II I
T.t-_'
~"';"A:..:
-lJIh.. ,..
I
I
l!.\
h.
I
.
1"'7
1'1 I
.1'
U
j
I
"
'f"
1
I
I
i
II
I
I
I
I
I
I
,
t
,
;
,
,
•
8
~
,
,
,
,
:L
w..:.~
~,..,..t._
n~ ,.
,
't
-itS6
--r.9"_'
't,.
I!t\.... r
l I
, II
n
,
.
Ii,
I
l
I I S
,
I I
.11
"
i.l
...:::- .........:;:-:0....; - . .
.0-,'
•
I
I
I
•
,I
.JaIll
~
I
J:
I
0
g
I;
I
A.
0
"
0'
~I~l(
:I.
•
"
0
h
b
Ii
(\1 ..... 1(
t-1...,.~_
,
,
r-i
I~
t.h.·.t..
0"""_
,
•
I
I
I
171'
11'
71>
t .. \
Wlo..;, ....
M .. *
,
~
"
(> -
t
\
l
\
t._
#52T. t:.\
W'"' '.tc--
I
t
--.I
r
r
23'S,
Il),
I .. ~
0
I
\(
~
1
~
6
OS
,
; \.o"'~
I
P
,
it 'f<i'
T.~...\
,
~
~'l
I
BI :1<
-
1:1
I~
WIo..:'t.
~
,
,
-.
I
~
6
IE
1
..
:
~~-
,
0
II~
I
(l,11.l
.....
;--.
I
JI.;,r..
j
~-
,...
~,
P.
'~~
.
.~
--...,.,-,-
I
I
I
I
I
I
,
I
I
I
I
I
I
I
I
I
I
I
Ii
I
I
I I
I II
I
I
I
I,
,I
I
II
I
I
IT
I .'
I
dll
I I Ii II
,,
I
I
".~I~.
_
• r
•
~I
~
•
j
.1
.,
··.'
..
c- 3 i'
I ~---------~
,
. -.
.
, ...r
I
If
I
Is
I •" n
·
I,
I ,," W...
,
•
! ,
I ,-, #5S
,
fT
·
I·
,
-
.~
0
.-R:"
-,::-~
~
I
,.JXf)
S"3
" , .. -to. \
{ 10,,:.<.-
'lIrII
r,.
r..
III
IImIb
I
0
1~'1l
" B,_.\('
J, f-I~4
bllb
S
h. •. r
D
it <:"1
III
IlUkJ"
II\it8Ir?
Ta~\
:+~
R\ .Il
"'_ tI.
~
I(
I
M
I
"
w""t~
~
~l
'~~
r7
k;1.t._
A'h.. ~
,.
•
,W
Ir
~
<;~
.~:\
• Iu~~':-
~
"
•
0
·,
·
-n.,
..
-
t
iiol
ill!
It!
IlIiiIIIP,
K
IL
fI
--n+.... ,.
IfI
10'
I] :
I
1'1
Ibl
".
l
I
II
"
,
I
,
,
••
I.
i
I
I,
i
I
I
II:
S"
:
15
!'
I: Iii
II II
I
I
II
,
!
I.
II
II
,
"
I ,I
I
,
II ,I
I
IIIII
I, I
\
,
I
,
,
i
I
'I
I
,11
,
,
~
"I
,114j II
~ II
I II
I
,
,
,
,
,
I,
I
III
.
,
I."
,
1,
'.
I
1~"114
II
I,
I,
It,',
!
~
,l
I
l
: II
til
, II
I,
~,
j
,,
,,, I I
'l~
\
"
i
I
IR'
I
~
I
'II
I
I
N
' IL'
Il'tI
I
l
I
J
I
I
II
,
lfl~
j
.~\
l:;\.'~t.
-TH.
!
I
I
I
.
to' ,
RI.I('
~Sx
I
II
0
I
II
I I
II I
1111
Ii
oJ
#S7
I•
I ·"
• 1.'-\. •
·• r-.
•
I'
"t.~1
WI.. '~.
~,
,•
I
-IU.J('
IM.-l
Of
,
0
i':.~.1
"
lJ.
~
/'ft'\. .. r
I,
I·
·
0
~
I
,I
III
III
"
I
I ,I
I' I
I'
II
II
II
I
I
I
': I'
II I
II
,
I
I I
II : I
II
I
I
I'
II
··
··
·
"
II
I
'.
(;·3'1
-.
"""--.
~
.I
I
o
Il
5
I
I
.
"""I..
~
:1
r-
~(.,
L
I
\'-----+tttii'9~~H1ftt1~O~t1+t1+-+J+H+H~++++++H'
+H+H-I-!I.
I
I -T.T~~~'~.
-ilOri>I..~::..!.t~
'--t-ttt-1ll1m5l"lP.1
Y+tHtf:F.()i+-t+t1I-t+H++-H+tt-.:..'+HH+l+-':"'!W+t-J:+-<'
l
-~
\l.,.\........J -;;-(--iittHitH/;-H*Hir.~if'itttt++-..:.'-t+H+tt-.:..'+t11-t+H-:""-!+r'+H+-:
k.-.Pt....
:2.
'L
I :
i4.g.j.t-,::
-~~.:=~
..
-t-tttttlTt-'I"'i·'+ttttft'g':~-ttttt++--;;.'
++-H+t+--+H+++f-+J
I
It
11I
1
-~.,.,--++ttt-t+HitHtt+-+1 -t+t-ttt+-+-t'Htt+t-t+t+H+--H+Hi++-"':""
---';~~~~~--i-ttm;f;;hm-t+r.i7.T:;-;i-ttttt++-7' ++-H+t+-TtH+++f-+H+H4-"
II-.,-J-I!~t""':~'''''.~~'---;''I+:!::/;;.=:;:::n+tt~I~~'::'-ttt1+tl-rLI+++++++--ir+H+H+-;-1+H+f+-I~~
:1
I
_~7'I...:Jb,.l.tLL.:"~-++tH-t-rt-L17++tHffll-"-t+
'tttffi-+.ffi-tt-H-H-'t+tttt-'H-l-t+f-+IHIO
--=--,..,---Ht+t++-H-t+Htt+-t-tttttti--+tH-t+H-r't+ttti+-lrn++-H+-fll
--.,.;#~,,~
·"...1;---H-++t+tH-ttttt+t--Hffii++H--++-*+-H-+.+t-H'EH-:::4"ttt1T+-f'
I \ ) . Ir..
!;~
r;
"
L\<.:l.c.o..:':-....j!-+f+t!H++Htt+t-Hl-ttttirl+ H-t+tt+t-frt+tffi-H1rH+tii-H--f"
..,.....,---HtH-I±!::::T+t-t+ttt-+tttt:iot:!-:-t+.t:!±!:::!:t-H-tttHt-::I:H+t-ttt-f..
~"
~
67
• __(..c/
_
-
"*
T .. ,"~\
I~
,~.
I/I/lQO
,r
II
~-'.l~~l'1L.s.....
d--+I+l-H'rI;i~-t+t++~$~+tim:Ti "m"~i:!I-l-H-tt+f.a':i~,~++++++-f1O
\S_~f_6'~
"'--+H++++.~I<>m+Hrl-f.1If7.t-/tti+.f'!~IA9H'H'1
~~"r;e;l)Il!,H+tifttLY:l-':-~+ti-tt--f"
H!I
-~I\.~.JI\~-+++t1+f.~I-S+++tl-H'jIf*Il+Hf¥ll~'A-H~:lf''f1!tI!5II-+'' +tl+Hf¥-~*f++J"
--!~~r....
1Ilo.s.:..
... ---f+tiH+tiC-.,.ffi-t+-W't+H+t+t-rt+ttH-HH1-tt-H+-Hi++t++h"
-n-::;-;;--H++ttti-ttti-t+H-t+t+tHt-+t+ttH+-1H-i-t+I-t+-+1I-t+H+H"
~1t!t..!l'....7~_+I++H+H-t+fttH-ttil-trrt++t+ti+tlH-tH+tI-Hrt+ttt+H"
..!..,~~
·"'!.!J·fI<t..'.a....,-IIl~oA!+Hf-ftt+-Ht+tttt-ttH+tII+-H-i-t+Ht+Htttt-HH-ttH+1 H"
--,-----r-ttH+t.::±::-+-tTtffi+-Hirt+t+++t++H+t--1'-ttffi-7++-t-rnr-T-'
I"
~~:n.t~-4°-l+-!~g::t-Yf+I++±H-H1i+Hf+1
H-++l+H-H4++++t+-l--h+1h-.I-"
1
--IT'"l.,t.<-I..I!
T '"0..1\""'-+++H+.r.ir.:.-'.:..:
'~
+T+fl~~:-l0 -=:0f+t+++++-+-'ti'-t+H++t++t¥+--;'--t:-I+t-'
1 -.;.1+-"
1
1
_~'ll~"u.:~L"-_ _+~++1-t+m-'1<-+Iri+'fi8.2~i."~htt+l+-ilf-H11-'-t-"'+t--+-If-U-1--rt--'+i1-4--1-"
-!B~~..Il~--4-+ti-++::t~-::-t"t+t~~!:T1~t+'-t+l+--'(4-lIIi"·
H:+-:Y--l-f- +-++-+-"
---Ir-qlS::
....Ci~".!!-'--~+H++-~rr-°-+ftt7TT5::.,ntf-l-h~+' t-1irl-H~ITt:*--l--1I-I-"
tl.. c'"
.1·
L
H+!--~+I~
11+.!..II:+-H-JI+lh'-++-rl~-rl-"
'+'
-----++++t+IIH--+t+tt+t-+ttttHl+--',~I+1h+:-H'-H'+'h'-t+-tj+r+-':'"1---'"'
l -tttttil+-~:-ttH'+-i';-r.I7Hlrtl-Hrti!-:+iI*-;t+n"
- -----4+Hf-ftIIy
I I II II • II,
I
I I-t-"
==========ilt~l~t'
y:f+-_-_t:./ttiHIi+--:::-;,~ti:/:r-'t~~~'t~'~t~,~~,~pllt=~=-·~I~:t:::
• I I
I".
I.
I I
".. ,~._~.
~
I L
_L
IN T e UNITED STATES COURT OF AALS
II. S. COURT OF APPEALs
FOR THE FIFTH CIRCUIT
f , LED
SEP t 91983
No.
83-1196
GILBERT F. GANUCHEAU
CLERK
REV. ROY JONES, ET AL.,
I
I
I
I
I
I
I
I
Plaintiffs-Appellees,
versus
THE CITY OF LUBBOCK, ET AL.,
Defendan ts-Appe llants.
Appeal from the United States District Court for the
Northern District of Texas
Before REAVL£Y. RANDALL and HIGGINBOTHAlJJ, Cireui t Judges.
B Y
THE
C 0 U R T:
IT IS ORDERED that appellees' motion for
injunction pending appeal is
DENIED.
••
II
II
II
Ex- J)