Political Voters Organization v. City of Terrell Court Opinion

    565 FEDERAL SUPPT,EMENT338

committed. Rummell v. Estelle,445 U.S' at

n4, lW 'S.Ct. at 1139.' Such extreme cir-

cumstances are not present hercl Broad-

nax's sentence is within the limits of the

sentencing statute which the Illinois state

legislatur.e thought best to impose in order

to protect the legitimate interests of the

state against the perceived threat of repeat

offenders. This court follows the example

of the Supreme Court and refuses to inter-
fere with those policy decisions. This fifth
ground for habeas relief is therefore dis-

missed.

VI. The Denial of kdress Claim

t12l Broadnax claims he was denied his

right to obtain redress of his grievances

because the Illinois Supreme Court denied

his petition to appeal from the judgment of
the appellate court. While any party may

file a petition for leave to appeal, "whether
such a petition is granted is a matter of

sound judicial discretion." Illinois Supreme

Court Rule 315, Ill.Rev.Stat. ch. 110A, par'

315 (1981). The decision to refuse such

petitions rests with the Illinois Supreme

bourt. Bowman v. lltinois Central Railroad

Co, 7l lll.2d 186, 142 N.E.zd lM, cert' de-

nied, 355 U.S. 83?, ?8 S.Ct. 63, 2 L.Ed'2d 49

(195?). In the absence of any allegation

that the Illinois appellate review system

makes distinctions that are violative of due

process or equal protection, see Chaffin v'

Stynchcombe, 412 U.S. 1?, n. 11, 93 S'Ct'

19?7, n. 11, 36 L.Fd'zd ?14 (1973); Rinaldi

v. Yeager,384 U.S. 305, 86 S.Ct. 1497, 16

L.Ed.zd 5?? (1966), this court will not dis-

turb the judgment of the Illinois Supreme

Court.

VII. The Prison Conditions Claim

tl3] Broadnax's last ground for seeking

habeas relief is the condition of the prison

in which he is presently incarcerated' He

claims that racial segregation in the 99%

black Joliet Correctional Center eonstitutes

cruel and unusual punishment. While the

Supreme Court has left open the question

of whether habeas corpus can be used to

challenge the conditions of confinement, see

Bett v. Wolfish,441 U.S. 520,527, n.6,99

S.Ct. 1861, 186?, n' 6,60 L.&1.2d'147 (19?9),

this court agrees with the Ninth Circuit'e
analysis in Crawford v. Bell, 599 F.2d 890

(9th Cir.19?9): "Acconding to traditional in-
terpretation, the writ of habeas corpus ig

limit€d to attacks upon the legality or dura-

tion of confinement." Id. at 891. The

Crawford court found that a challenge 6
the conditions of incarceration did not con-

stitute a challenge to the legality or dura-

tion of confinement," and noted that the

appropriate remedy for unconstitutional
prison conditiors was not the release fiom
confinement that habeas corpus rclief pro-

vides. Id. at 891-892. This court likewise

concludes that Broadnax's claims concern-

ing unconstitutional prison conditions are

not cognizable on a petition for writ of
habeas corpus.

VIII. Conclusion

Petitioner l,eroy Broadnax's petition for
writ of habeas corpus is denied. His dis-

criminatory jury selection and perjury

claims have been waived by his failure to

properly raise them at trial or on appeal.

His ineffective assistance of counsel, exces-

sive sentence, and denial of rcdress of
grievances claims are denied on the merits'

His prison conditions claim is not amenable

to habeas corPus relief.

POLITICAL CIVL VOTERS
ORGAMZATION and J.R

Roberson, Plaintiffs'
v.

CITY OF TERREU. Defendant'

Civ. A No. 3-81-ll0FH.

United States District Court,
N.D. Texas,

Dallas Div{sion. '

APril 8, 1983.

On a challenge to the charter of the

city of Terrell, Texas, the District Court'

Sanden
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-



POLITICAL CIYL VOTERS ORGAN. v. CITY OF TERRELL 339
Cltc r3 565 F,Supp. 33t (t0&l)

Senders, J., held. that in view particularly of of 1965, S 2, as amended, 42 U.S.C.A'

fr"" t""to"t, i-e., existe\." o{,.property S 1973'

onnenhip requrrement 
"'-:t ry:'l:- Ill: 5. Municipal corporations F80

cendidacy, tenuousness oI reasons lor maln-

trining atJarge sysrcm in light of April , " 
view particularly of three factors'

idirir"r"na,i, una .itl"t t"?i} ; t;i';; i'e'' existence of prcpertv ownership re-

ffif*[H"*:lf*Ui,;qt'*::fi li,]]:*fftl'*l[il'ii:r.:i#
#r;il invidious ait.tiiir"tio*' and city's refusal to set up polling place in

submission or p.o*.ui- o. p-po.rr, ro. ;?:::rr%:#"ltr;#;",JfrJ$:iJ*X:
bringing system.into compliance with con- was maintained for purpose of intentional,
rtitution directed' invidious discrimination. U.S.C.A. Const.

r. courts c=e6(?) t?:ll.;ii,'.Llr?:ilt*:-t!!f 'ff:
criteria presented by judicial precedent non's Ann'Texas civ'st' art' 1170; arts'

for det"rmining intent and effect-in voting 2900, 3107, 6070e (Repealed); V'A'T'S' Elec-

dilution caries are not exclusive' and 
"an 

# tion Code' art' 2'M' subd' 2; art' 5'09 (Re-

IJ"""a or supplemented as is appropriate pealed); Vernon's Ann'Texas P'C' art' 1661

t 'iiJiriarrr facrc of case. u.S.i.i. 0onst. (Repealed)'

Amends. 14, 15; Voting Rights Act of 1965, 6. Constitutional Law e215.3
$ Z, as amended, 42 U.S.C.A. S f973. I|Iunicipal Corporations e80
t Bri6"nss F48 city's maintenance of intentional, in-

Federal district court took judicial no- vidious discrimination in regard to election

tice of rampant official discrimination in system violated Fourteenth and Fifteenth

recent histoiy in Texas against blacks. Amendments to the Constitution. U.S.C'A.

u.s.c..q,. const.Amends. ra, rs; Voting const.Amends. 14, 15; voting Rights Act of

Rights Aet of 1965, $ 2, as amended, 42 1965, S 2, as amended, 42 u.s.c.A' s 1973;

U.-S.C.6. S 19?3; Vernon's Ann.Texas Vernon's Ann.Texas Civ'St. art. 1170; arts.

civ.st. arts. 11?0, 5920; arts. 2900, 3107, 2900,3107, 6070e (Repealed); v.A'T.S. Elec-

60?0e (Repealed); v.A.T.s. Eleetion code, tion code, arl. 2.04, subd. 2; art. 5.09 (Re-

Ert. b.0g (Repealed); Vernon's Ann.Texas pealed); Vernon's Ann.Texas P.C. art' 1661

P.C. art. 1661 (Repealed). (Repealed)'

3. B;".1iens e12
In racial discrimination ca.se, once Elizabeth K. Julian, Michael Daniel, Jul-

plaintiffs have demonstrated recent per- ian, Daniel & Villarreal, Dallas, Tex., for
cussive official unresponsiveness to minori- plaintiffs.
ty needs, burden shifts to defendants to
demonstrate that unresponsiveness of past william charles Bundrrn' Jackson' walk-

ia no longer indicative or present sovern- il-:ilX1"f,L:ilt;|} 
^lrrYtffi 

}"'l'tr:
ment unresponsiveness. U.S.C.A. Const.

Amends. 14, lb; voting Rights Act of 1965, rell' Terrell' Tex'' for defendant'

$ 2, as amended, 42 U.S.C.A. S 1973; V.A.
T.S. Election Code, art. 2.M, suM. 2. MEMORANDUM oPINloN

{. Elections el2 SANDERS, District Judge'

When direct evidence as to racial vot- This case arises out of a challenge to the

ing patterns is unavailable, court must look Charter for the City of Terrell, Texas. The

to indirect evidence. V.A.T.S. Election Charter currently provides for the election

Crcde, art. 2.M, subd. 2; Voting Righls Act of five citl' councilmen for staggered terms

L-..-.-rryL* -"



340

in at-large elections. .Councilmen run for
numbercd positions, and they mrist receive
a majority of votes. The Charter was last
amended in 1973. - The 1973 amendment
provided residency rcquirements for three
of the council positions. The other two
positions, Mayor and Mayor Pro Tem, do

not have residency requirements.

Plaintiffs Political Civil Voters Organiza-
tion ("PCVO") and J.R. Roberson ("Rober-
son") challenge the charter on several
grounds. First, they claim that the Charter
was created and is maintained for purposes

of invidious discrimination in violation of
the Fourteenth and Fifteenth Amendments.
Second, they assert that the Charter has the
effect of diluting the Black minority vote in
contravention of section 2 of the Voting
Rights AcL, 42 U.S.C. S 1973.

tll Although the determination of dis-
criminatory intent, as opposed to discrimi-
natory effect, involves a different legal
standard, there are many factors in voting
dilution cases which are relevant both to
intent and effect. Crpss v. Baxter,604 F.zd
875,880 n.9 (Sth Cir.1979). Specifically, in
Zimmer v. McKeithen 485 F.2d 129?, 1305

(5th Cir.19?3), aff'd on other grounds sub

nom. East Carroll Parish School Board v.

Marshall, 42A U.S. 6.36, 96 S.Ct. 1083, 47

L.Ed.Zl 296 (1975), the Fifth Circuit listed
eight relevant factors. Later cases inter-
pret Zimmer as presenting four dprimary"

factors and four "enhancing" factors. See

Cross r'. BaxLer, 604 F.Zl 875, 879 (5th
Cir.1979); l,odge v. Buxton,639 F.2d 1358,

1379-a0 (5th Cir.1981), aff'd sub nom. Rog-
ers v. Herman Indge, 

- 
U.S. 

-, 
102

s.ct. 3r2, 73 L.Ed.zd 1012 (1982). The
Zimmer criteria are not exclusive, and can

be replaced or supplemented as is appropri-
ate to the individual facts of a case. See

l,odge v. Buxton, supra, &39 F.21 at 1375.

The Court has carefully considered the Zim-
mer cilnria, as well as other factors, and its
findings and conclusions as to those criteria
and factors are as follows.

A. Primary Factors

1. Lack of Access tn the Political S1'stem

ln Zimmer, the Court eonsidered the
"lack of access" factor solely in terms of

565 FEDERAL SUPPLEMENT

access to the candidate slating process. €S
F.2d at 1305. Terrell does not employ 6
candidatp slating prooess, and, as such, the
"a@ess" factor is inapplicable in this case.

In Croes v. Baxtcr, however, the Fifth Cir-
cuit expanded the "access" factor to eneom-

pass access to the political system generally.

604 F.zd 875, 8?8 (5th Cir.1979); see a/so

Mclntnsh County Branch of the NAACP v.

City of Darien,605 F.2d 753, 757 (5th Cir.
f979). The Court specifically included in
the "lack of access" factor "such direct gov-

ernmentally sanctioned exclusions as the
poll tax. . .."

In this case, Terrell has employed a "di-
rect governmentally sanctioned exclusion"

similar to the poll tax. The Terrell City
Charter requires all candidates for public

office in Terrell to be owners of real prop
erty. See Plaintiffs' Exhibit ("PX") ?.

This requirement, like the poll tax, impacts

more adversely on blacks than on whites in

Terrell. Although about one-third of Ter-
rell's population is black, Plaintiffs' Exhibit
65 shows that substantially fewer than one-

third of the owner-occupied homes in Ter-
rell are found in census track 505, the pre-

dominantly black area. See a/so l,odge v.

Buxton, &39 F.zd 1358, 1378 (5th Cir.1981).

In fact, the overall effect of a property
requirement on minoritl' political participa-

tion is generally so acute that the Fifth
Circuit has stated that "[C]ases involving
literacy tests, or proprty requirements are,

by comparison, easier to decide. The most

obvious purpose for the creation of such

systems is clearly discrimination." Id. at
1363. (Emphasis added).

Several p€rsons testified at trial and dur-
ing depositions that Terrell does not enforce

its property ownership requirement. See,

e.g., Deposition of Bobby Bishop ("Bishop

Deposition"), p. 75, line 17 to p. 76, Iine 1.

The requirement, however, is not an ancient

relic that remains on the books through
inadvertence. In 1973, the Charter Revi-

sion Committee set aside the old city char-

ter, started front scraLch, considered the

propertl' requirement, rt'$'orded it, and

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TOINTGTEiTiTI, VOiTRS ORGAN. v. CITY OF TERRELL
Chc 15 585 F.SuDP. iliE (106:l)

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acain included it in the Terrell Charter.

D-eposition o( Arther Fineout ("Fineout

Deposition"), p. 35, line;'8-12; p' 101, line

15 to p. 103, line 14. Moreover, Terrell has

sdmittedly never publicized its alleged poli-

cv of nonenforcement. Bishop Deposition,

o. ?S, lin" 1? to P. 76, line i5. Thus, the

Lxistence of the requirement may well dis-

oourage otherwise qualified candidates

from running for public office. Terrell's

Drop€rty ownership requirement, then, acts

io impeae minority access to the political

syst€m.

2. ?enuousness of the statc policy
underlying use of the at large

voting system

Another "primary" factor under Zimmer

is the "tenuousness" of the state policy un-

derlying use of the at large voting system.

In this case, the original justification for
instituting an at large system does not ap
pear to be tenuous. There is no state policy

against atJarge systems, cf. Zimmer v-

McKeithen, 485 F.2d 1297, 1304 (5th Cir.

l9?3), and members of the 1973 Charter

Revision Committee expressed apparently
sincere concerns over the "ward politics"
they believed to result from single member
districts. Fineout Deposition, p. 66, lines

tt-20.
Terrell's reason for maintaining an at-

Iarge system, however, is quite tenuous. In
April of 1979, the first black candidate for
Mayor of Terrell was defeated at the polls.

He filed an election contest, alleging that
poll workers improperly refused to let cer-

tain black citizens vote. As part of a settle-
ment agreement in that case, Terrell agreed
to set aside its objections to "ward politics"
and to submit the question of single mem-
ber districts to the electorate. ke PX 27,

page 4. The settlement agreement states
as follows:

At the next municipal election to be held
on the first Saturday in April 1980. a
single member district plan will be sul>
mitted to the voters of the city. Said
plan to have the approval of the U.S.
Department of Justice, and if passed, to

.5651-SuD,,-ta

341

go into effect at the next municipal elec-

tion, the first Saturday in April, 1981.

Id.

In the April 1980 election the single mem-
ber district proposal passed 599-499. The
City C,ouncil deiermined, however, that the
April 1980 vote wa^s merely a "straw vote"
and that the single member district issue

needed to be resubmitted as a formal char-
ter amendment. C,ertain blaek citizens
sought to enjoin the holding of a second

election but were unsuccessful. See PX 26,

p. 38. In August 1980, the single member
district proposal was again submitted.
There was a much smaller turnout and the
proposal was defeated.

The City Council's twetiered amendment
procedure concerning the single member
district proposal did not comport with ei-

ther Section 12.12 of the Terrell Charter, or
Article 1170 of Texas Revised Civil Statutes
Annotated. See PX 7,p.32. Moreover, the
twotiered procedure was not submitted to
or approved by the Attorney General. Yet,
the stated reason for retaining an at-large
system after the April 1980 referendum was

that the city had to follow its Charter and
had to follow the "vote of the people".

Testimony of Danny Wood. The Court
finds that Terrell's policy reasons for main-
taining an at large system after April 1980

are extremely tenuous.

3. The Existence of Past Discimination
that in General Precludes the Effective

Participation in the Election S1'stem

12) The Court takes judicial notice of
the rampant official discrimination in
recent history in Texas against blacks. See,

e.g., Tex.Elec.C,ode Ann., art. 5.09 (poll tax;
repealed 1967); Texas Penal Code, Art.
1661 (separate coaches, repealed 1967); Tex.
Rev.Civ.Stat. Art. 2900 (segregated schools,

repealed 1969); Tex.Rev.Civ.Stat. Art.
6070e (separate state parks, repealed 1969);

Tex.Rev.Civ.Stat. Art. 5920 (separate bath
facilities, amend6d 1969); Tex.Rev.Civ.Stat.
Art. 3107 (white primarl', repealed 1927).

Official discrimination in Terrell ended,

for the most part, in the 1960's. Terrell
schools began "freedom of choice" in 1965,



-F-

565 FEDERAL SUPPIAMENT

l, tp

u2
and totslly integrated in f96Q. Furlough
Deposition, p. 9, lines 15-18.\ As of 1963,

Terrell soda fountains and the town skating
rink were still segregated. Id. at p. 81, line
5 to p. 82, line 4. At present, there is still a

"black" and a "white" cemetery, although
no evidence was produced showing that the
segregation is a result of an official Terrell
policy. Id. at p. 46, lines 13-15; Testimony
of Danny Wood.

Blacks in Terrell are in a generally de-
pressed socio-economic position. According
to the 1980 census, 40.5Vo of the blacks in
Terrell have incomes below the poverty lev-
el, whereas only I.Wo of the whites had
incomes below that level. See PX 68. Sim-
ilarly,Al.Wo of Terrell's blacks have only an
elementary school education, while 8.37o of
the whites have only an elementary school

education. See PX 69. Blacks in the Ter-
rell area also occupy disproportionately few
places in the administrative and profession-
al fields. See PX 66.

Defendant questions the extent to which
the past discrimination and current de-
pressed socio-economic conditions effect the
ability of blacks in Terrell to participate in
the election system. See Zimmer, supra,
485 F.2d at 1305. Defendant asserts that
Plaintiffs, in order to make a prima facie
case as to the lingering effects of past
discrimination, must show a disproportion
in both "voting registration and election of
minority representatives. . . ." Cross v.

Baxter, 604 F.2d 875, 881 (5th Cir.1979).

There is some support for Defendant's as-

sertions. Several Fifth Circuit cases list
both factors as part of the plaintiff's "bur-
den". Id.; Mclntosh County Branch of the
NAACP v. City of Daien,605 F.zd 753,759
(Sth Cir.1979). In other cases, however, the
Fifth Cireuit has taken a less rigid approach
and has stated that "[i]nequality of access is

an inference which flows from the existence
of economic and educational inequalities."
Kirksey v. Board of Supervisors of Hinds
County, Mrssrsoppr, 554 F.zd 139, 145 (5th
Cir.) cert. denied,434 U.S. 968,98 S.Ct. 512,

54 L.Ed.2d 454 (1977).

ln lndge v. Buxton,639 F.2d 1358 (5th
Cir.1981), the Court founC lingering effects

of past discrimination, despite a substantial
recent increase in minority voter registra-
tion. Id. at 1377-78. In this case, as in
Lodge v. Buxton, minority voting registra-
tion has increased dramatically in the last
decade. In fact, Defendant's calculations
show that blacks in Terrell are registered to
vote in significantly higher proportions
than are whites in Terrell. See Defendant's
Exhibit ("DX") 7?-79.

The Court finds that in this case, as in
Lodge v. Buxton, the increase in voter reg-
istration does not preclude a finding that
the effects of past discrimination still linger
in Terrell and impede minority access to the
political system. In Terrell, blacks rep-

resent 37.67o of the overall population, and

33.5Vo of the voting population, see Pretrial
Order, p. 8, yet black representation has

never exceeded one of five, ot 20Vo, on the

city council. Numerous witnesses, includ-
ing witnesses for Defendant, testified that
one reason disproportionately fewer blaeks

are elected is because blacks are often not
personally "known" to the majority of the
community, which lives in north Terrell. It
is clear to the Court that a major reason for
the white majority's lack of familiarity with
many black candidates is the severe de fac-
to segregation of housing in Terrell. The

area south of the railroad tracks in Terrell
is approximately 97.57o black and the area

north of the railroad tracks is approximate-
ly 94.6Vo white. See DX 77, p. 2. Although
no evidence of current official policies en-

couraging segregated housing was intro-
duced, the Court finds that past official
actions, particularly the maintenance of
segregated schools, strongly influenced the
establishment of racially segregated hous-

ing in Terrell. The effects of those official,
discriminatory acts clearly "lingers" in the
housing patterns. Those housing patterns,

in turn, greatly impedo the ability of blacks

to enter the political system in Terrell.
Based on the particular facts of this case,

then, the Court finds that the present ef-
fects of past discrimination in Terrell do

impede black participation in Terrell poli-
tics.

.,;dL: r&r.'- .-'



-"
POIJTICAL CIYL VOTERS ORGAN. v. CITY OF TERRELL

CltG tr 585 F.SuPP. 136 (19&l)

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4. .UnrcsPonsiYenass
The Court has considq'Ed the City of Ter-

;ell'a responsiveness to minority needs in

iwo basic areas: provision of city services

to minorities and city hiring and appoint-

nent of minorities'

0) Provision of CitY SerYrces

g) Wation and Staffing of Polling
Places

Terrell has only one polling place for city

elections. It is located in the City Hall,

which is in north Terrell. South Terrell

residents have requested a polling place in

routh Terrell, as is provided in the county

elections. Henderson Deposition No. 2, p'

%. In state elections, no election precinct

can contain more than 2,000 voters. Tex.

Elec.Code Art.z.Wz). Presumably, this re-

quirement was instituted to promote voter

convenience' Terrell has a total of 5564

registered voters, 2089 of whom live in
gouth Terrell. DX 7?. Terrell officials con-

cede that, due to Terrell's population

growth, not all residents can walk to city
hall, and that an additional polling place

would be more convenient for voters. Id.

The City, however, has refused to open a

aouth Terrell polling place. Henderson

Deposition No. 2, p. 28. The Court finds

that, as to location of polling places, the

City has been unresponsive to minority
needs.

As to the staffing of the polling facilities,
the C,ourt notes that the percentage of
black election officials during the Terrell
elections since 1970 are approximately as

follows: L97N7c; l97l-4Vo; 1972

through 197 6--Moi 1977 -Wa; 1978--3 -6Vo;

1979--Ua; 1980-137o; 1987-267o; 1982-
l8%o. See PX 24. Although Terrell has

made progress since 1970 in appointing
black election officials, the number of such

appointees is still disproportionately low.

The Court finds that in the area of staffing
of polling places, Terrell has been unrespon-
sive to minority needs.

(2) Drainage

In recent years, the City of Terrell has

made dramatic improvements in south Ter-

343

rell drainage. The City Manager, Paul

Henderson, tcstified that the drainage in
south Terrell is now better than that in
north Terrell. Henderson Deposition No' 2,

p. 41, lines 1-5- The Court finds that Ter-
rell has been rcsponsive to minority needs

in the area of drainage.

(3) Water

In or around the 1960's, south Terrell
suffered from such low water pressure that
at least one building burned due to an inad-

equate water supply. Deposition of Frank
Smith ("Smith Deposition") pp. 10-12; Tes-

timony of J.R. Roberson. That problem,

however, appears to be reduced. The City
has admitted that there is still inadequate

water pressure in one part of the black

area, but it notes that there are four sec-

tions in the white area that are comparable

in that regard. See PX &3, p. 4. The City's
latest capital improvement plan includes in-
stalling an additional large water main in
the black area. Id. An investigation by

the Office of Revenue Sharing ("ORS") in-
dicated that although the "black area" of
Terrell constitutes about one-third of the
city, it contains 4Dc of the largest size

water mains. PX 33, p. 3; see al^so Smith
Deposition at 11-12. Defendant's records

show that 7l% of the miles of pipe laid in
Terrell since 19?0 have been laid in south

Terrell. PX 9. Plaintiffs persuasively as-

sert that TlVo ol the pipe, only 30.H" actual-
ly went to the black residential area, and

the rest went to industries benefiting the

city generaill'. See Plaintiffs' Post Trial
Brief, p. 25. Nevertheless, the Court finds

that the total, overall figures show that the

City of Terrell has been responsive to mi-

nority needs in the area of water services.

(4) Sewer

In Terrell, indoor plumbing and sewage

facilities were installed in north Terrell pri-
or to being i?rstalled in south Terrell.

Smith Deposition, p. 35. The sewage serv-

ices in south Terrell, hor*'ever, have greatly
improved in recent times. ld. An ORS

investigation revealed that therc are cur-

rently 19 occupied dwellings in Terrell u'ith-

Iiie. . .. -



t:6"-'. '.-E' '

944 665 FEDERAL SI.]PPI,EMENT

out se\rrer service, including 9 black dwell-
ings. PX 33, p.4. Defendant'r'calculations
indicote Lhat 73Vo of all sewer pipe laid in
Terrell from 197GS2 was laid in south Ter-
rell. DX 9. Plaintiffs assert that only 11%

of that pipe directly benefited the black
community, while the rest went to industri-
al and other city wide uses. See Plaintiffs'
Post Trial Brief, pp. 2&-26. Even assuming
Plaintiffs'contentions are correct, no sig-
nificant disparity has been shown. North
Terrell received BVo of the pipe, and north
Terrell eontains about two-thirds of the
Terrell population. South Terrell received
about 1l7o and contains the other one-third.
The Court finds that, overall, the City of
Terrell has been responsive to minority
needs in the area of sewer services.

(5) &meteries

Two cemeteries exist in Terrell, a black
cemetery and a white cemetery. Furlough
Deposition, p. 46, lines 13-15; Testimony of
Danny Wood. In 1977, when Frank Smith
was appointed to the city council, the black
cemetery received $2,000 per year from the
city and the white cemetery received $12,-
fi)O per year. Testimony of Frank Smith.
Although in 1983 the city council, for the
first time, allocated an equal amount for
each cemetery, the Court finds that the
City has not been responsive to minoritl,
needs in the area of cemetery maintenance.

(6) .Frre Protcction

As noted earlier, Terrell is divided by
railroad tracks that run east and west, sepa-
rating north and south Terrell. The only
fire station is north of the tracks, and there
are no over?asses or underpasses through
which to avoid the railroad crossings. On
several occasions, fire trucks have been de-
layed by trains in reaching south Terrell
fires. See DX 82. Although no substantial
damage has so far been caused by such

delays, the city recognizes that the current
situation presents grave risks. The ORS
has investigated Terrell eoncerning viola-
tions of the Local Assistance Act of 1972

based on Terrell's failure to provide accept-

able fire safety to its black residents. See

PX 60.

Residents of south Terrell haie repeated-
ly requested that a fire station or substa-
tion be located in south Terrell. See Hen-
derson Deposition No. 2, pp. 3G€7. The
city has decided, however, that instead of
building a fire station in south Terrell, it
will wait for the State of Texas to build an
overpass connecting north and south Ter-
rell. See PX 63. The state does have a
proposal before it that includes a Terrell
overpass. The proposal, however, has not
been fully approved and will not be com-

pleted until 1988 at the earliest. See PX
61. The ORS apparently has approved the
use of an overpass rather than a fire sub-

station, see PX 63. Nevertheless, the Court
finds that the city's current policy, which
consists of waiting to see if the state will
build the overpass, involves too many uncer-
tainties to be considered "responsive" to
minority needs.

(7) Poliee Protection

Prior to 1974, the Police Department basi-
cally assigned its officers on the basis of
race, with 4 black patrolmen servicing south
Terrell, and 12 white patrolmen servicing
north Terrell. Testimony of Joe Patton.
In 1974, however, the police department
was reorganized such that all patrolmen
now sen,ice areas that include both north
and south Terrell. The Court finds no cred-
ible evidence that blacks in Tenell have
received police protection unequal to that of
whites.

(8) Medical,*na'ces

In 1975 the City of Terrell constructed
the Tenell Community Hospital in south
Temell. The hospital plovides a readily ac-

cessible emergency facility that can be

reached by south Terrell residents without a

risk of delays by trains. The Court finds
that in the area of medical services, the city
has been responsive to minority needs. See

DX 111.

i
I
t
tL



\Jd " L'

POLITICAL CIVIL YOTERS ORGAN. v. CITY OF TERRELL
Ctt rs t85 F.Sqp. ttt (lr&l)

. (9) Housing

In numerous applicat{crs to HUD for
Community Development Funds, Terrell

has stressed the need for housing assistance

for low incoine residents of south Terrell.

See PX 85-41. Therc are currently three

essist€d housing projects in Terrell, all of
which are privately owned and federally
rssist€d. Testimony of Jack Russell. The

City does run a HUD Section 8 existing
bousing rental program although only one

of the over 29 black families lives in north
Terrell. Henderson deposition No. 2, pp.

18-21. Terrell has received about $850,000

in federal housing grants since 1979, and

lWo of it has been spent in south Terrell.
Testimony of Jack Russell. The City has

been advised by a management consultant
tltat Terrell's chances for additional federal
funding would be greater if Terrell placed

aome assisted housing in north Terrell, but
it has no plans to do so. Id.

The Court is concerned by Terrell's fail-
urc to propose more integrated assisted

housing and thus maximize its chances of
receiving additional federal funds. Never-
theless, the Court finds that Terrell has
worked diligently to obtain funding for
housing assistance. The Court finds that,
in the area of housing, Terrell has been
rcsponsive to minority needs.

(10) Paving of Streets

It is undisputed that prior to l9?0, there
was a significant inequality in the paving of
atreets in south Terrell compared with the
etreets in north Terrell. See Deposition of
Stan Ballard ("Ballard Deposition"), pp. 35-
97. Prior to 1970, less than ?SVo of the
streets in south Terrell had any form of
pavement. Ballard Testimony. Since 1970,
however, the city has made significant im-
provements in south Tenell roads. In fact,
between 1970 and 1982, 76Vo of the roads
paved in Terrell were located in south Ter-
rell. See DX 9.

The parties presented conflicting testimo.
ny as to whether, after the city's improve-
ments, an inequality still exists between the
rcads in south and north Terrell. Of the
paved roads in north Terrell, abut 607c are

345

"curb and gutter", which involves the lay-
ing of underground drainage pipes and con-
crete curbs. In south Terrell, only about
frVo of the roads are curb and gutter, and
the rest have open drainage ditches. Testi-
mony of Stanley Ballard. Although the
city of Terrell favors curb and gutter
strcets as a matter of policy, the city engi-
neer, Stanley Ballard, testified that many
persons, including himself, prefer open
drainage strcets. Ballard conceded, how-
ever, that open drainage streets make park-
ing more difficult.

Ballard further testified that the type of
paving laid on a particular street depended
on the choice of the property owners on
that street. The frontage owners must sign
a petition requesting paving of their streets
and submit it to the city council. Ninety
percent of the owners of the homesteads on
the street must sign the petition. Then, the
owners choose the type of paving, and they
pay two-thirds of the cost. The city pays
the remaining one-third. The city will not
put in curb and gutter streets unless: (1)

90Vo of the homestead owners agree to pay
the extra costs; and (2) the street is at least
31 feet wide. The eity requires that streets
be paved with curb and gutter if the values
of the adjacent property at $? per frontage
foot or more.

Although the city's a-ssessment policy is
applied equally in north and south Terrell,
it impacts differently in the tu'o areas. In
south Terrell, a higher percent of the homes
are renter occupied, see PX 65, which may
make it more difficult to obtain the neces-
sary 907o owner consent. Also, the average
width of streets in south Terrell is 21 feet,
making it harder for south Terrell to meet
the width requirement. Testimony of Stan-
ley Ballard. The property values in south
Terrell are also considerably lower than
those in north Terrell, see Plaintiffs' Exhib.
it 65, p. 2, such that fewer streets in south
Terrell would qualify under the $7 per foot
rule. Thus, the differential between north
and south Terrell in the amount of curb and
gutter streets cannot solely be attributable
to the choice of the residents.



'65 
FEDERAL SUPPI.EMENT346

The'Terrell City Manager, Paul Hender-
son, testified that the paving in south and
north Terell is substantially unequal.
Second Deposition of Paul Henderson,
("Henderson Deposition No. 2"), p. 40, lines
L9-Zl. The Court agrees with this conclu-
sion. Despite vast improvements, the city
is still not fully responsive to minority
needs in the area of street improvements.

(11) Future Planned Expenditures

In 1981 Terrell passed a $15,000,000 capi-
tal improvement bond. Defendant asserts
that of that $15,000,000, $6,368,000 is specif-
ically targeted toward south Terrell. DX
76. Plaintiffs persuasively argue that
$1,980,000 of the $6,368,000 should more
properly be allocated to the "general bene-
fit" category, rather than to south Terrell.
See Plaintiffs' Post Trial Brief, p. 26.

Nevertheless, such a reallocation still leaves

$4,406,000 earmarked for south Terrell, as

opposed to $1,342,000 for north Terrell.
Based on those statistics, it is clear to the
Court that as to planning for future capital
expenditures, Terrell has been responsive to
minority needs.

(12) Zoning Permits

The city council, in the last few years,
denied a permanent operating permit to a
company seeking to slaughter animals at a
meat plant in south Terrell. The black
community strongly opposed the establish-
ment of a slaughterhouse in south Terrell.
Although Plaintiffs allege that slaughtering
had occurred for some time prior to the
denial of the permit, it is unclear whether
the slaughtering was brought to the city
council's attention at that time. See Plain-
tiffs' Post Trial Brief, p. 26; Testimony of
Gilbert Willie. The Court finds that the
City of Terrell was responsive to minority
needs in denying the slaughtering permit.
(b) City Hiing and Appointment of Minori-
ties

(l) Hirinr
Although blacks in Terrell constitute ap-

proximately 33Vo of Terrell's population
above 18 years of age, the percentage of

blacks hired by the City of Terrell is signifi-
cantly less lhan 33Vo See Pretrial Order,
filed February 14, 19&3, p. 8; .PX 64, pp.

7-2. A summary of the information con-
tained in Terrell's EEO4 forms shows that
in the past eight years the percentage of
blacks employed by Terrell has been as fol-
lows : 1973-297o ; 197 4-217o; 1975-l4.6Vo;
1976-l5.7Vo; 1977-18.67.; 7978-l8Vo;
1979-79.67o; 1980-16.47o; 1981-2f.no.
See PX 64, pp. 1-2. The city's black em-
ployees constitute a disproportionately high
percentage of the lower payrng jobs. From
1973 to 1980, no black Terrell employees

earned more than $13,000 per year, al-
though 75 white employees eamed more
than $13,000 during that period. See PX
64, p. 1. In 1981, three black employees
earned more than $13,000 per year, as com-
pared to 46 white employees. See PX 64, p.

2. The city has employed approximately
four black policemen since 1974. The city
employed approximately 16 officers in 1974,

and it currently employs approximately 20

officers. Testimony of Joe Patton. Of the
seven paid firemen currently employed by
Terrell, one is black. He is the first black
Terrell fireman, and he was hired three
months prior to trial. There are no black
department heads in the City of Terrell.
Deposition of John Douglas Norton, p. 58.

Overall, in the area of hiring, the Court
finds that the City has not been responsive
to minority needs.

(2) Appointmenls

The overall composition of the city boards
and commissions is 207" black. One-half of
the total blacks serving on boards and com-

missions serve on the Community Develop-
ment Advisory Commission. PX 72. The
Community Development Advisory Com-
mission must, under HUD guidelines, have
representation from the,targel area (south
Terrell). On four of the city's eight boards
and commissions, there are no black repre-
sentatives. The Court finds that in the
area of city appointments, the City of Ter-
rell has been unresponsive to minority
needs.

*r#.- -.--.iI



.

POLITICAL CIYIL YOTERS ORGAN. v. CITY OF TERRELL
Clte as 565 F.Supp.338 (1083)

,\:.

t

@) fusponsiveness Overall\'

t3] The Court recognizes that in ass€ss-

ing responsiveSess, the burdens are as fol-

lows: "[o]nce the plaintiffs have demon-

strated recent persuasive official unrespon-

Biveness to minority needs, the burden

rhifts tp the defendants to demonstrate

that the unresponsiveness of the past is no

longer indicative of present government un-

responsiveness." Cross v. Baxtcr,604 F.2d

8?5, 8&3 (Sth Cir.1979). The Court finds

that in the following areas, Plaintiffs have

met, and Defendant has failed to meet, the
above-stated burdens: (1) location and

staffing of polling places; (2) cemetery

services; (3) fire protection; (4) paving of
streets; (5) city hiring; (6) city appoint-
ments. In the follo*,ing areas, Plaintiffs
have met their above-stated burden, but
Defendant has shown that the past is no

longer indicative of present government un-
rcsponsiveness: (1) drainage; (2) water
sen'ices; (3) sewer services; (4) police pro-

tection; (5) medical services; (6) housing;
(7) future planned expenditures; (8) zoning
permits.

Although in their numbers, the city is

responsive in a majority of areas, the Court
finds that, overall, the City is unresponsive.
The City's lack of responsiveness in the area
of location and staffing of polling places

and city hiring and appointments is so sig-
nificant that the Court cannot conclude that
Terell is responsive to minority needs.

B. Enhancing Factors

Under Zimmer, supra, the existence of
the four following factors "enhances"
Plaintiffs' proof of discrimination.

1. Unusualll, large districts

The Court finds that the City of Terrell is
not an "unusually large district."

2. Majoity VoLe Requirement

Terrell employs a majority vote require-
ment. Under this requirement, a candidate
who acquires a pluralitl-, but not a majorit.r'
of the votes must comlrcte in a runoff elcr'-
rior: \'ith the tolr ccrntender

M7

3. Anti-single Shot Provisions

Terrell employs a numberbd place slstem
which acts as an anti-single shot provision.
If the places on Terrell's city eouncil were
not numbered, then a minority group could
cast only one of its five potential city coun-
cil votes, thus weighing its vote for that one
person more heavily. The existence of
numbered places with head to head races,
eliminates the advantage of such selective
voting.

4. Lack of Residency Requirements

Terrell requires that for three of the five
city council positions, the candidates must
reside in a particular geographic subdistrict.
This residency requirement insures that at
least one of the councilmen will be a resi-
dent of south Terrell.

C. Other Faclors

1. Election of a Disproportionately l,ow'
Number of Minoritl' Representatives

Both Kirkse.l, v. Board of Supervisors of
Hinds Count1,, Mi'ssissrppr, 554 F2A 139, 143

(5th Cir.), cert. denied,434 U.S. 968, 98 S.Ct.
512, U L.Ed.2d 454 (7977), and the legisla-
tive historl' to the 1982 amendments to
Section 2 of the Voting Rights Act cite the
election of disproportionally few minority
officials as an important factor. Id. See

S.Rep. No. 97417,97th Cong.2d 1982 atD
(Published in 1982 U.S.Code Cong. and Ad-
ministrative News, p. 777). In Terrell,
blacks have run against u'hites in citl'coun-
cil elections on eight occasions. On scven of
those occasions, thc black candidate was
defeated. Testimonl' of Prof. Charles Cot-
rell. The black victory occurred in 1969

when Herman Furlough, a black, defeated a
u'hite candidate for a cit1, council position.
Wht,n Furlough resigned from the cit.t'
council, the council fppointed Frank Smith,
a black, to replace Furlough. Smith now
runs from an essentialll'all black residency
district, and ha-s ncver had a white oppo-
nt'nt. Tht,rc hzr^s never lrcen more than one
l,iitck rrpresentative on the five memlrcr
. r;', t rrL;llti].

l*...---,-



348 665 FEDERAL SUPPI.,EMENT

The Terrell Independent Scltool Board
has seven members, one of which is black.
The first black wag elected to the school

board in 1966. He ran for position number
seven and defeated a white. In 1975, he

retired and another black was elected to
position number seven. Since 1966, there
has not been a white candidate for position
number seven. Overall, aince the late
1960's, black representatives have constitut-
ed approximatnly Wo of the city council
and 14% of the school board. The Court
finds that a disproporlionately low number
of blacks have been elected as Terrell offi-
cials.

2. Racial Campaign Taetics

The Court finds that the political cam-
paigns in Terrell have not been characteriz-
ed by overt or subtle racial appeals.

3. The Dxtcnt of Racially Polarized
Voting

Racially polarized voting occurs when

race is a predominant factor and influence
in voter choice. Testimony of Prof. Charles
Cotrell. Tlpically, the degree of racial po-

larity in voting is determined by examining
election races in which blacks opposed

whites, taking the percentage of voters who
supported a candidate of their own race,

and subtracting the percentage of voters
who voted for a candidate of another race,

to obtain a "racial polarization score". Id.

For instance, if 807o of the blacks and 57o of
the whites supported a black candidate, the
racial polarization score would be 80 minus

5 or 75. A score of 60 or ?0 is considered to
show racially polarizcd voting. Id.

The tlpical procedure, however, cannot
be directly applied to the City of Terrell.
The City uses only one polling place for its
elections. Thus, in any given election, the
city cannot determine whether a candi-

date's votes came from south Terrell, the
predominantly black area, or north Terrell,
the predominantly white area. Defendant
asserts that Plaintiffs, therefore, have

failed to carry their burden as to shou'ing

the existence of racially polarized voting.

t4l A ruling in favor of Defendant's po-

sition would be harsh, particularly in light
of the fact that black residents have re-
peatedly requested a south Terrell voting
box. Henderson Deposition No. 2, p. 28. A
per se rule requiring that Plaintiffs show

actual black-white city election brrakdowns
in order to demonstrate polarized voting
would enable officials to negate an impor'
tant element of a voting rights action sim-

ply by forcing all voters to come to one

polling place. The Court finds that when

direct evidence as to racial voting patterns

is unavailable, the Court must look to indi-
rect evidenee.

One persuasive indirect indicator of ra-

cially polarized voting in this case is the

results of the only Kaufman County Com-

missioner's race in which a black candidate

has opposed a white candidate. In 1982 a

black, Rev. B.H. Wyatt, ran against several

white candidates. At C,ounty Box No' 5,

which serves an area that is 957o black and

that encompasses most of south Terrell,
Wyatt received 967o of the votes. At Coun-

ty Box No. 20, which serves an area that is

over 90% white and encompasses a signifi-
cant portion of north Terrell, Wyatt re-

ceived less than 1Vo of the vote. Testimony
of Prof. Charles Cotrell. In that race, the

racial polarization score was over 90, which

is extremely high. Id. Although the vot-

ing districts in the County Commissioner's

race do not exactly correspond to the areas

of south and north Terrell, the Court finds

that the areas are simiiar enough to be of
probative value. The results of the Wyatt
race for County Commissioner strongly in-
dicate that racially polarized voting exists

in Terrell.

The Plaintiffs' expert witness, Prof.

Charles Cotrell, who has extensive experi-

ence in the area of voting rights, see PX ?4,

testified as to certain other indirect factors

that a court may consider in determining
whether polarized voting exists. Those fac-

tors include: a history of discrimination; a

history of dual institutions; the percentage

and degree of rictories in black-white races:

and the existence of de facto residential seg-

regation. Prof. Cotrell particularll' stressed

the intyrcrrlanee of segr.'gatcri housing pat-

trJ
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r' -.: i .l

- 
|tr::;i

POLMCAL'CIVII, VOTERS ORGAN. V. CITY OF TEBRELL
CltG.s !85 F.surp' S38 (10&l)

349

tcrns, and he testified that neighborhoods nation.' 639 F.Zl 1358, 1363 (5th Cir.1981).

;;iy vote together. The Court finds that Similarly, the most reasonable explanation

I.i irf the facton cited by Dr. Cotrell for the two-tiered election scheme and the

J"i"f,r in favor of finding the existence of absence of a south Terrell pqlling place is

o"i-"ffy polarized, voting. discrimination. Thus, those three factors

It is true that the two incidents in which present strong,- albeit indirect, evidence of

Uf""f.-*Jaates defeated white candidates discriminatory intent'

show that the voters in Terrell do not al- Certain other factors reinforce the evi-

ssvs vot€ 1fi)7o along racial lines. Never- dence of intent. The existence of past dis-

theiess, in ? of 9 races in which black candi- crimination, overall unresponsiveness, elec-

dates opposed white candidates, the blacks tion of a disproportionately low number of

were defeated. Racial polarization need minority representatives, and existence of

not be perfect to be persuasive. The Court racially polarized voting are of some signifi-

finds, based on the results of the Wyatt cance. The Court, however, gives scant

race, the number of black defeats in black- weight to the majority vote and anti-single

white races, and the factors delineated by shot factors.
Professor Cotrell, that racially polarized

voting exists in Terrell. t6l The Court has carefully considered

D. rotatity or the circumstances *i:fr'$,Trtli:;"#X#"?:l?3,iln1ffij:
In this case, the following factors weigh es, however, the court finds that the

inlavor of Plaintiffs: (1) Iack of access to present election system in Terrell is main-

It" potiti"rt system; (2) tenuousness of the tained for the purpose of intentional, invidi-

,tt" poti"y underlying maintenance of the ous discrimination. As such, it violates the

at-large system; (3) existence of past dis- Fourteenth and Fifteenth Amendments to

""i.ir'rtio, 
that inhibits effective participa- the Constitution. See, e.g., Rogers v' Her'

tion in the election system; (4) unrespon- man lndge, 
- 

u.s. 

-, 
102 s.cL.3n2'

siveness; (5) majority vote requirements; ?3 L.Frl.zd 1012 (1982)' Given the disposi-

(6) anti-single shot provisions; (?) election tion of the constitutional issue, the Court

of " 
airp.oportionately low number of mi- need not address Plaintiffs' claims under

nority representatives; and (8) racially po- Section 2 of the Voting Rights AcL

larized voting. The following factors weigh The parties are hereby directed to submit
in favor of Defendants: (1) absence of un- fy ,Lprit Zg, 1983, a proposal or proposals

usually large districts; (2) existence of a for bringing Terrell's system for the elec-
residency requirement for three of the five tion of iL city council into compliance with
city council positions; and (3) absence of the Fourteenth and Fifteenth Amendments
racial campaign tactics. of the Constitution.

tsl The Court finds that, taken as a SO ORDERED.
whole, the factors show discriminatory in-
tent in the maintenance of the current elec-

tion system. The Court, in reaching that
conclusion, is particularly impressed by

three factors: (1) the existence of the prop
erty ownership requirement; (2) the tenu-
ousness of the reasons for maintaining the
at large system in light of the April 1980

rcferendum; and (3) the City's refusal to
aet up a south Terrell polling place. As the
Fifth Circuit noted in l,odge v. Buxton, the
"most obvious purpose" for creation of a

property ownership requirement is discrimi-

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