United States v. Board of Education of the Township of Piscataway Motion for Leave to File Brief Amicus Curiae

    96-2891

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

CHARLES STOVALL, MARTHA RAY BETHEL,
REV. W.O. WELLS, JOANN STOVALL, and SYLVESTER WEAVER

vs.
Plaintiffs-Appellants,

CITY OF COCOA, FLORIDA; COCOA CITY COUNCIL; MICHAEL 
HILL, ALECK GREENWOOD, PHYLLIS CHURCHILL, JUDY PARRISH, 

BRUCE TATE JR., and JOAN CLARK, In Their Official Capacities 
as Mayor, Council Members, and City Clerk Respectively.

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF FLORIDA

BRIEF OF APPELLANTS

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Jacqueline A. Berrien 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, NY 10013 
212-219-1900

Cristina Correia 
Laughlin McDonald 
Neil Bradley 
Maha Zaki
ACLU Foundation, Inc. 
44 Forsyth Street, N.W. 
Suite 202
Atlanta, GA 30303 
404-523-2721

Attorneys For Appellants



No. 96-2891, STOVALL, et al.. v. CITY OF COCOA, et al.

CERTIFICATE OF INTERESTED PERSONS 

AND CORPORATE DISCLOSURE STATEMENT 

Pursuant to Eleventh Circuit Rule 26.1, the following is an alphabetical list 

of the trial judge, attorneys, persons, firms, partnerships and corporations with any 

known interest in the outcome of this appeal:

1. Amari, Theriac, Eisenmenger & Woodman, P.A.,

Counsel for Defendants/Appellees

2. American Civil Liberties Union Foundation, Inc.,

Co-Counsel for Plaintiffs/Appellants

3. Jacqueline Berrien, Co-Counsel for Plaintiffs/Appellants

4. Martha Ray Bethel, Plaintiff/Appellant

5. Neil Bradley, Co-Counsel for Plaintiffs/Appellants

6. Norman J. Chachkin, Co-Counsel for Plaintiffs/Appellants

7. Phyllis Andrea Churchill, Defendant/Appellee

8. Cianfrogna, Telfer, Reda and Faherty, P.A., Counsel for Fred Galey

9. Joan Clark, Defendant/Appellee

10. City of Cocoa, Defendant/Appellee

11. Cocoa City Council, Defendant/Appellee

C -l o f 3



No. 96-2891, STOVALL, et al.. v. CITY OF COCOA, et al.

CERTIFICATE OF INTERESTED PERSONS 

AND CORPORATE DISCLOSURE STATEMENT

12. Cristina Correia, Co-Counsel for Plaintiffs/Appellants

13. Fred Galey, Brevard County Supervisor of Elections, Interested Party

14. Aleck James Greenwood, Defendant/Appellee

15. Frank J. Griffith, Counsel for Fred Galey

16. Michael Ashley Hill, Defendant/Appellee

17. J. Wesley Howze, Jr., Counsel for Defendants/Appellees

18. Elaine R. Jones, Co-Counsel for Plaintiffs/Appellants

19. Laughlin McDonald, Co-Counsel for Plaintiffs/Appellants

20. NAACP Legal Defense & Educational Fund, Inc.,

Co-Counsel for Plaintiffs/Appellants

21. Judy Jackson Parrish, Defendant/Appellee

22. Hon. G. Kendall Sharp, District Court Judge

23. Theodore Shaw, Co-Counsel for Plaintiffs/Appellants

24. Charles L. Stovall, Plaintiff/Appellant

25. Joan Stovall, Plaintiff/Appellant

C-2 o f 3



No. 96-2891, STOVALL, et al., v. CITY OF COCOA, et al.

CERTIFICATE OF INTERESTED PERSONS 

AND CORPORATE DISCLOSURE STATEMENT

26. Bruce Winfred Tate, Jr., Defendant/Appellee

27. Sylvester Weaver, Plaintiff/Appellant

28. Rev. W. O. Wells, Plaintiff/Appellant

29. Maha Zaki, Co-Counsel for Plaintiffs/Appellants

Cccuvuc
Cristina Correia

C-3 o f 3



STATEMENT REGARDING ORAL ARGUMENT

This case presents important issues concerning the approval and enforcement 

of settlement agreements by the federal district courts and the application of Miller

v. Johnson, 515 U.S. ___, 115 S. Ct. 2475 (1995) to settlement agreements in

litigation under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. Due to the 

importance of the issues presented, oral argument may assist the Court in the 

resolution of this appeal.

CERTIFICATE OF TYPE SIZE AND STYLE 

The type size used in this brief is 14 point. The type style is Times New 

Roman.

l



CERTIFICATE OF INTERESTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT ...................................... C-l

STATEMENT REGARDING ORAL ARGUMENT .................................... .. . i

CERTIFICATE OF TYPE SIZE AND STYLE.................................................. i

TABLE OF CONTENTS....................................................................................  ii

TABLE OF CITATIONS .................................................................................. v

STATEMENT OF SUBJECT MATTER JURISDICTION .............................  x

STATEMENT OF APPELLATE JURISDICTION ......................................... x

STATEMENT OF THE ISSUES ...................................................................... 1

STATEMENT OF THE CASE..........................................................................  2

Nature of the C ase ....................................................................................  2

Course of Proceedings and Dispositions in the Court B elow ................. 2

Statement of F a c ts ....................................................................................  3

Statement of the Standard of Review ..................................................... 5

SUMMARY OF THE ARGUMENT................................................................. 6

ARGUMENT ..................................................................................................... 8

TABLE OF CONTENTS
Page

ii



TABLE OF CONTENTS

I. The District Court Erred In Permitting The City Of Cocoa Unilaterally

To Withdraw The Jointly Submitted Consent Decree.............................  8

A. The Parties’ Executed Settlement Agreement Is B inding............ 10

B. The Parties Executed A Valid Settlement Agreem ent.....................14

C. State Law Is Not A Bar To Entry Of The Consent

Decree................................................................................................16

D. Equity Requires That The Consent Decree Be Enforced ................20

II. The Consent Decree Is Constitutional.......................................................21

A. The Record Clearly Demonstrates That Race Was Not 

The Predominant Factor In The Creation Of The 4-1

District P la n ......................................................................................26

B. The Plan Embodied In The Proposed Consent Decree

Satisfies Strict Scrutiny ...................................................................30

1. The Consent Decree Is Justified By A

Compelling Government Interest...........................................31

2. The Consent Decree Is Narrowly T ailored...................... 33

CONCLUSION .................................................................................................... 35

Page

in



TABLE OF CONTENTS

ADDENDUM

Map of 4-1 District P la n ................................................Addendum page 1

Sec. 2 of the Voting Rights Act of 1965,

42 U.S.C. § 1973 ................................................Addendum page 2

Fla. Stat. § 166.031 .......................................................Addendum page 3

Cocoa City Charter, Art. Ill, § 13(b) .......................... Addendum page 4

CERTIFICATE OF SERVICE

Page

IV



TABLE OF CITATIONS

Alien v. Alabama State Bd. Of Educ., 816 F.2d 575 (11th Cir. 1987) . 6, 10, 11

Armstrong v. Adams, 869 F.2d 410 (8th Cir. 1988) .........................................  19

Bonner v. Prichard, 661 F.2d 1206 (11th Cir. 1981) {en banc) .................  7

Brewer v. Muscle Shoals Bd. O f Educ., 790 F.2d 1515 (11th Cir. 1986) . . . .  11

Bush v. Vera,___U .S.___ , 116 S. Ct. 1941 (1996) ..................................passim

Carson v. American Brands, Inc., 450 U.S. 79 (1981) ...............................  xi, 9

Cia Anon Venezolana De Navegacion v. Harris, 374 F.2d 33 (5th Cir. 1967) 15

Crosby Forrest Products, Inc. v. Byers, 623 So.2d 565

(Fla. 5th Dist. Ct. App. 1993) ................................................................. 14

Daly v. School District o f Darby Township, 434 Pa. 286,

252 A.2d 638 (1969) ...............................................................................  15

DeWitt v. Wilson,___U .S .___ , 115 S. Ct. 2637 (1995) ........................  24, 31

Dillard v. Crenshaw County, 748 F. Supp. 819 (M.D. Ala. 1990) 7, 10, 12, 19

Dorson v. Dorson, 393 So.2d 632 (Fla. 4th Dist. Ct. App. 1981)................. 13

Eatmon v. Bristol Steel & Iron Works, Inc., 769 F.2d 1503 (1985)............. 11

Floyd v. Eastern Airlines, Inc., 872 F.2d 1462 (11th Cir. 1989)

rev’d sub nom. on other grounds, Eastern Airlines, Inc. v. Floyd,

Cases Pages

v



TABLE OF CITATIONS

499 U.S. 530 (1991)............................................................................. 6, 14

Fulgence v. J. Ray McDermott & Co., 662 F.2d 1207 (5th Cir. 1981) .......... 6

George v. City o f Cocoa, 78 F.3d 494 (11th Cir. 1996) ......................x, 1, 2, 4

Gooding v. Wilson, 405 U.S. 518 (1972) .......................................................... 6

Gunn Plumbing. Inc. v. Dania Bank, 252 So.2d 1 (Fla. 1971)........................ 13

In re Birmingham Reverse Discrimination Emp. Lit,

20 F.3d 1525 (11th Cir. 1994)................................................................ 5

In re Smith, 926 F.2d 1027 (11th Cir. 1991).....................................................10

In re U.S. Oil and Gas Litigation, 967 F.2d 489 (11th Cir. 1992) ................. 10

Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark 1990) (three judge court)

aff’d mem., 498 U.S. 1019 (1991) ..........................................................27

Johnson v. DeGrandy,___U.S. ___ , 114 S. Ct. 2647 (1 9 9 4 ).................  22, 32

Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994)

aff’d 515 U .S.___, 115 S. Ct. 2475 (1995)............................................ 31

Lotspeich Co. v. Neogard Corp., 416 So.2d 1163

(Fla. 3rd Dist. Ct. App. 1982) .................................................................  13

Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983) (three judge co u rt) ..........27

Cases Pages

vi



TABLE OF CITATIONS

Maseda v. Honda Motor Co., 861 F.2d 1248 (11th Cir. 1988)...................  6, 14

McDaniel v. Sanchez, 452 U.S. 130 (1981) .....................................................  19

Miller v. Johnson, 515 U.S. __ , 115 S. Ct. 2475 (1995)........................ passim

Murchison v. Grand Cypress Hotel Corp., 13 F.3d 1483 (11th Cir. 1994) . . .  9 

Newell v. Prudential Ins. Co. o f America,

904 F.2d 644 (11th Cir. 1990)................................................................. 5

Pettinelli v. Danzig, 722 F.2d 706 (11th Cir. 1984).........................................  14

Potter v. Washington County, Fla., 653 F. Supp. 121 (N.D. Fla. 1986).......... 19

Reed By And Through Reed v. U.S., 717 F. Supp. 1511 (S.D. Fla. 1988),

a ffd  891 F.2d 878 (1 1th Cir. 1990) ...........................................  7, 12, 21

Reed By And Through Reed v. U.S., 891 F.2d 878 (11th Cir. 1990) . . 7, 11, 12 

Rhein Medical, Inc. v. Koehler, 889 F. Supp. 1511 (M.D. Fla. 1995) . 7, 10, 12

Robbie v. City o f Miami, 469 So.2d 1384 (Fla. 1985) ....................................  13

Rufo v. Inmates o f Suffolk County Jail, 502 U.S. 367 (1992)...................  22, 25

Schwartz v. Florida Bd. Of Regents, 807 F.2d 901 (11th Cir. 1987)..............  11

Shapiro v. Associated Intern. Ins. Co.,

899 F.2d 1116 (11th Cir. 1990) .......................................................  6, 14

Cases Pages

vii



TABLE OF CITATIONS

Cases Pages

Shaw v. Hunt, ___U .S.___ , 116 S. Ct. 1894 (1996)....................................... 24

Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816 (1993)............ 22, 24, 26, 27, 30

Straw v. Barbour County, 864 F. Supp. 1148 (M.D. Ala. 1994)...................... 19

Tallahassee Branch ofNAACP v. Leon County, Fla., 827 F.2d 1436

(11th Cir. 1987), cert, denied, 488 U.S. 960 (1988) ............................. 19

Thornburg v. Gingles, 478 U.S. 36 (1986) ................................................passim

Thomas v. State o f La., 534 F.2d 613 (5th Cir. 1976) ................. 7, 10, 12, 13

United States v. City o f Miami, Fla., 664 F.2d 435 (1981) (en banc) ............17

U.S. E.E.O.C. v. Tire Kingdom, 80 F.3d 499 (11th Cir. 1996)........................  5

Utilities Comm ’n Of New Smyrna Beach v. Fla. PSC,

469 So.2d 731 (Fla. 1985)........................................................................ 13

Voinovich v. Quilter, 507 U.S. 146, 113 S. Ct. 1149 (1993) ............  22, 27, 31

Wallace v. Townsell, 471 So.2d 662 (Fla. 5th Dist. Ct. App. 1985) ..............  14

Wilson v. Eu, 4 Cal. Rptr. 2d 379 (1992).......................................................... 25

Wise v. Lipscomb, 437 U.S. 535 (1978)............................................................  18

Wong v. Bailey, 752 F.2d 619 (11th Cir. 1985)................................................  11

vm



TABLE OF CITATIONS

Statutes and City Charter Page

Sec. 2 of the Voting Rights Act, 42 U.S.C. § 1973 ..................................passim

28 U.S.C. § 1 2 9 1 .............................................................................................xi

28 U.S.C. § 1292(a)(1) ................................................................................. .. . xi

28 U.S.C. § 1331   x

28 U.S.C. § 1343(a)(3) ......................................................................................  x

28 U.S.C. § 1343(a)(4) ......................................................................................  x

28 U.S.C. § 2201 ................................................................................................  x

42 U.S.C. §1983 ................................................................................................  x

Fla. Stat. §166.031(2)......................................................................................... 16

Fla. Stat. §166.031(3)   17

Fla. Stat. §166.031(5).................................................................................. 16, 17

Cocoa City Charter, Ait. Ill, § 13(b) .................................................................18

IX



STATEMENT OF JURISDICTION

Statement of Subject Matter Jurisdiction

This is an action arising under Section 2 of the Voting Rights Act, 42 U.S.C. 

§ 1973. Subject matter jurisdiction in the district court was invoked pursuant to 28 

U.S.C. §§ 1331, 1343(a)(3), 1343(a)(4) and 2201, and authorized by 42 U.S.C. 

§1983.

Statement of Appellate Jurisdiction

On May 20, 1996, on remand from this Court,1 the district court entered an 

Endorsed Order granting Defendants’ Motion To Withdraw Joint Motion To Enter 

Consent Decree And Judgment. R2-52 [Order]2. The district court’s Order has

1 This Court reversed an earlier Order which had voided a Consent Decree and 

refused to enter judgment. George v. City o f Cocoa, 78 F.3d 494 (1996). (Mary 

George was granted leave to withdraw as a plaintiff on March 14, 1995, and she

was granted leave to withdraw as an appellant in this Court on March 29, 1995.)

2 The district court docket sheet does not provide a document number for the

court’s Endorsed Order of May 20, 1996 which granted defendants’ motion. The 

motion was docketed as R2-52. References in this brief to the Endorsed Order will 

appear as "R2-52 [Order]". The "Endorsed Order" is the front page of the motion 

with a handwritten notation that the motion is "granted" and "case shall proceed to

x



the practical effect of denying plaintiffs the injunctive relief provided in the parties’ 

Consent Decree. Rl-293. Plaintiffs timely filed a notice of appeal on June 19, 

1996. R2-58. Jurisdiction in this Court is proper pursuant to 28 U.S.C. §§ 1291 

and 1292(a)(1). Carson v. American Brands, Inc., 450 U.S. 79 (1981).

This Court raised the issue of jurisdiction sua sponte. Appellants have filed 

a brief arguing that jurisdiction is proper pursuant to both 28 U.S.C. §§1291 and 

1292(a)(1). See Appellants’ Response To The Court’s Inquiry Regarding 

Jurisdiction, filed on July 16, 1996.

trial".

3 The proposed Consent Decree was submitted with the Joint Motion To Enter 

Consent Decree And Judgment on July 29, 1994. These documents have been 

docketed under a single entry, no. 29. References in this brief to the Consent 

Decree will appear as "Rl-29-page [decree]".

xi



STATEMENT OF THE ISSUES

1. Whether, following this Court’s reversal of the district court’s 1994 Order 

refusing to enter the parties’ proposed consent decree and its remand "for further 

proceedings not inconsistent with" the opinion in George v. City o f Cocoa, 78 F.3d 

494, 499 (11th Cir. 1996), the district court violated this Court’s mandate, and 

erred, as a matter of law, when it failed to enforce the parties’ settlement and 

permitted defendants unilaterally to withdraw the parties’ Joint Motion To Enter 

Consent Decree And Judgment?

1



STATEM ENT OF THE CASE

Nature of the Case

Plaintiffs, African-American citizens and registered voters in the City of 

Cocoa, filed this action under Sec. 2 of the Voting Rights Act, 42 U.S.C. § 1973, 

alleging that the at-large/numbered post method of electing the Cocoa City Council 

dilutes the voting strength of African-American voters. Rl-1-13.

Course of Proceedings and Disposition in the Court Below

This is an appeal from an Order granting defendants’ Motion To Withdraw 

Joint Motion To Enter Consent Decree And Judgment. R2-52 [Order]. On July 

28, 1994 the parties had filed a Joint Motion To Enter Consent Decree & Judgment 

along with a proposed Consent Decree with the district court (herewith "Joint 

Motion"). Rl-29. In late 1994 the district court entered an Order voiding the 

parties’ proposed consent decree. R2-40. This Court reversed the district court’s 

order and remanded the case "for further proceedings not inconsistent with this 

[Court’s] opinion." George v. City o f Cocoa, 78 F.3d 494, 499 (11th Cir. 1996).

Three days after this Court’s mandate issued, defendants filed a Motion To 

Withdraw Joint Motion To Enter Consent Decree And Judgment. R2-52. Plaintiffs 

filed a brief in opposition. R2-57. Without benefit of a hearing, and with no 

explanation of the basis for its ruling, the district court entered an Endorsed Order

2



granting defendants’ motion and directing that the case proceed to trial. R2-52 

[Order].4 This appeal followed.

Statement of the Facts

The City of Cocoa has a total population of 17,722. African-Americans 

constitute 28% of the city’s population. Rl-1-5 and Rl-13-2. Despite this 

substantial minority population, at the time this suit was brought only two African- 

Americans had ever been elected to the five (5) member city council and none had 

been elected since 1981. R2-36-2.

While discovery was underway the parties entered into settlement 

negotiations and ultimately agreed upon an electoral system for the election of the 

Cocoa City Council whereby four members of the council are to be elected from 

single-member districts and one member, who also serves as mayor, continues to 

be elected at-large. R1-29-2, 3 [decree]. On May 10, 1994, by a 3 to 2 vote, the 

Council approved the election plan incorporated in the parties’ proposed consent 

decree. Rl-29-3 [decree]. The parties then filed a Joint Motion To Enter Consent 

Decree And Judgment. Rl-29. Four voters appeared as amici and filed objections

4 Since the court did not write an opinion explaining the basis for its ruling, 

this brief will address all of the arguments advanced by defendants’ motion and 

memorandum in support thereof.

3



to the parties’ proposed decree. Rl-325. After briefing and a hearing, the district 

court issued an opinion holding that under Florida law, the sole African-American 

on the city council should have abstained from voting on the remedy plan because 

"as an African-American candidate he stood to gain inordinately from the vote" and 

voiding the Consent Decree. R2-40-6, 8. This Court reversed the district court’s 

Order and remanded the case to the district court "for further proceedings not 

inconsistent with this [Court’s] opinion." George v. City o f Cocoa, 78 F.3d at 

499.6

Three days after this Court’s mandate issued, defendants filed their Motion 

To Withdraw Joint Motion To Enter Consent Decree & Judgment, which was 

subsequently granted. R2-52 and R2-52 [Order]. As a result, more than two years 

after the parties entered into a settlement agreement, elections continue to be held

5 Amici Joel Robinson, et al., participated in the proceedings below for the 

limited purpose of presenting objections to the parties’ Consent Decree. Amici 

advised the district court that they did "not seek to intervene in the underlying 

action . . . "  and sought "only to be heard in opposition to entry of a proposed

consent decree in this case." Rl-30-1 n. 1.

6 Amici chose not to participate in the appeal. See Amici’s Notice To Court,

George v. City o f Cocoa, 11th Cir. No. 94-3453, dated April 3, 1995.

4



under the at-large system which was to be replaced by the new electoral plan 

embodied in the settlement. R3-61, R3-61 [Order]7, and R3-63.

On June 29, 1996 Plaintiffs filed a Motion To Enforce Mandate, Or In The 

Alternative, Petition For Writ Of Mandamus with this Court, which was denied on 

July 10, 1996.8

Statement of the Standard of Review

This appeal presents issues concerning the district court’s determination of 

questions of law.9 Review of a district court’s rulings of law is de novo. U.S. 

E.E.O.C. v. Tire Kingdom, 80 F.3d 449, 450 (11th Cir. 1996); In re Birmingham 

Reverse Discrimination Emp. Lit, 20 F.3d 1525, 1540 (11th Cir. 1994); Newell v. 

Prudential Ins. Co. o f America, 904 F.2d 644, 649 (11th Cir. 1990).

7 The district court docket sheet does not provide a document number for the 

court’s Endorsed Order of Sept. 11, 1996 denying Plaintiffs’ Motion For Injunction 

Pending Appeal (R3-61). References in this brief to this Endorsed Order will 

appear as "R3-61 [Order]".

8 The motion to enforce the mandate was denied as to appeal No. 94-3453.

The petition for writ of mandamus was denied as to No. 96-2919.

9 The district court made no findings of fact and the parties do not dispute the

existence of an agreement, only its enforceability. See R2-52-Exhibit A.

5



To the extent that this appeal involves interpretations of state law, this Court 

is "‘bound by a decision of a Florida District Court of Appeal on questions of 

Florida state law, absent a strong showing that the Florida Supreme Court would 

decide the issue differently.’" Shapiro v. Associated Intern. Ins. Co., 899 F.2d 

1116, 1123 (11th Cir. 1990) (quoting Maseda v. Honda Motor Co., 861 F.2d 1248, 

1257 n.14 (11th Cir. 1988)); Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1466- 

1467 (11th Cir. 1989) (reversing district court’s interpretation of state law) rev ’d 

sub nom. on other grounds, Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991). 

See also, Gooding v. Wilson, 405 U.S. 518, 525 n. 3 (1972) (holding that federal 

courts follow state appellate court decisions as to state law).

SUMMARY OF THE ARGUMENT

The district court erred in granting defendants’ Motion To Withdraw Joint 

Motion To Enter Consent Decree & Judgment. The parties have entered into a 

lawful settlement agreement and defendants have failed to provide any legal 

justification for their failure to adhere to this agreement.

Settlement agreements are binding. Allen v. Alabama State Bd. OfEduc., 

816 F.2d 575 (11th Cir. 1987); Fulgence v. J. Ray McDermott & Co., 662 F.2d

6



1207 (5th Cir. 1981); Thomas v. State o f La., 534 F.2d 613 (5th Cir. 1976)10; 

Rhein Medical, Inc. v. Koehler, 889 F. Supp. 1511 (M.D. Fla. 1995); Dillard v. 

Crenshaw County, 748 F. Supp. 819 (M.D. Ala. 1990); Reed By And Through Reed 

v. U.S., 111 F.Supp. 1511 (S.D. Fla. 1988), aff’d 891 F.2d 878 (11th Cir. 1990).

The proposed consent decree is constitutional, and the district court has 

already concluded as much. R2-43-3. The express puiposes of the Consent Decree 

included 1) "provid[ing] minority voters equal access to the political processes" and 

"enhancing] the political participation and awareness of all citizens." R1-29-2 

[Decree] (emphasis added). As defendants themselves have represented, the 4-1 

District Plan incorporated in the Consent Decree adheres to traditional redistricting 

principles. R2-36-15, R2-35-Appendix C, Addendum Page 1. "[SJtrict scrutiny 

only applies where ‘the State has relied on race in substantial disregard of 

customary and traditional districting practices.’" Bush v. Vera, 116 S. Ct. 1941, 

1951 (1996) (O’Connor, J., concurring) (quoting Miller v. Johnson, 115 S. Ct. at 

2497). Therefore, the 4-1 District Plan is not subject to strict scrutiny review.

Even if the Consent Decree were subject to strict scrutiny review, it would

10 Decisions of the former Fifth Circuit rendered prior to October 1, 1981 are 

binding precedent in the Eleventh Circuit. Bonner v. City o f Prichard, 661 F.2d 

1206 (11th Cir. 1981) (en banc).

7



easily satisfy such heightened scrutiny. Strict scrutiny would require the districting 

plan to be justified by a compelling government interest and narrowly tailored to 

meet that interest. Miller, at 2482. Compliance with Sec. 2 of the Voting Rights 

Act, 42 U.S.C. § 1973, is a compelling government interest. Bush v. Vera, 116 S. 

Ct. at 1968 (O’Connor, J., concurring). Prior to entering in the Consent Decree the 

City of Cocoa investigated the allegations and claims in the complaint and had a 

strong basis in belief that the present at-large numbered post election system 

violates Sec. 2 of the Voting Rights, 42 U.S.C. § 1973. R2-36-3-5. The Consent 

Decree is narrowly tailored. The 4-1 District Plan only has one majority-minority 

district and retains one at-large seat. R1-29-2-3 [decree]. The majority African- 

American district is both compact and contiguous. R2-36-15-16. The Consent 

Decree provided a staggered implementation schedule, permitting incumbent city 

council members to serve out their full tenns. Rl-29-4-5 [decree].

There being no credible argument that the Consent Decree is unlawful, the 

district court’s Order, permitting defendants to escape the binding effect of the 

settlement, should be reversed and the case remanded to the district court with 

instructions that that court enter the Consent Decree.

8



ARGUMENT

I. THE DISTRICT COURT ERRED IN PERMITTING THE CITY OF 

COCOA UNILATERALLY TO WITHDRAW THE JOINTLY 

SUBMITTED CONSENT DECREE.

There is no question that the Cocoa City Council approved the settlement 

embodied in the proposed Consent Decree. Indeed, defendants’ motion in the 

district court was styled "Motion To Withdraw Joint Motion To Enter Consent 

Decree And Judgement". R2-52 (emphasis added). Defendants concede that they 

approved the consent decree, agreed to its terms, and authorized their attorney to 

seek court approval of the decree. See, R2-52-Exhibit A ("Whereas, on July 26, 

1994, the City Council of the City of Cocoa, Florida, approved a 4-1 District Map 

and Consent Decree and authorized the City Attorney to submit the same to the 

Court for the Court’s action"); R2-53-1 ("A review of the proposed Consent 

Decree discloses the Co-Defendant City had agreed to change its at large system 

of voting in elections to a system which divided the commission races into four 

distinct districts, . . . ").

Consent decrees are the preferred means of resolving litigation. Carson v. 

American Brands, Inc., 450 U.S. 79, 86-88 (1981); Murchison v. Grand Cypress 

Hotel Corp., 13 F.3d 1483, 1487 (11th Cir. 1994) ("We favor and encourage

9



settlements in order to conserve judicial resources."); In re U.S. Oil and Gas 

Litigation, 967 F.2d 489, 493 (11th Cir. 1992); In Re Smith, 926 F.2d 1027, 1029 

(11th Cir. 1991) ("Settlement is generally favored because it conserves scarce 

judicial resources."); Rhein Medical, Inc. v. Koehler, 889 F. Supp. 1511, 1516 

(M.D. Fla. 1995) ("Settlements are highly favored and will be enforced whenever 

possible."); Thomas v. State o f La., 534 F.2d 613, 615 (5th Cir. 1976) ("Settlement 

agreements have always been a favored means of resolving disputes.") "The 

importance of settlements in the resolution of . . . voting rights cases in particular 

cannot be overstated." Dillard v. Crenshaw County, 748 F. Supp. 819, 823 (M.D. 

Ala. 1990). The district court erred in permitting defendants unilaterally to 

withdraw from the settlement into which they had entered.

A. The Parties’ Executed Settlement Agreement Is Binding.

As addressed above, the City of Cocoa does not contend that a settlement 

was not reached by the parties. Instead, in the court below, defendants merely 

asserted, without authority, that since the Consent Decree "has not been executed 

by the [district] Court, Co-Defendants are free to withdraw their consent. . ." R2- 

53-3. In fact, the decisional law is to the contrary; a government defendant is 

bound to a settlement agreement which it approves. Allen v. Alabama State Bd. Of

10



Educ., 816 F.2d 575, 577 (11th Cir. 1987)11 ("The fact that the board later

11 There is some division in this Circuit on whether state or federal law 

governs the enforcement of a settlement agreement where the rights at issue are 

derived from federal law. See Schwartz v. Florida Bd. Of Regents, 807 F.2d 901, 

905 (11th Cir. 1987) (applying Florida’s general contract law to settlement in Title 

VII action and citing as authority, Wong v. Bailey, 752 F.2d 619, 621 (11th Cir. 

1985), which was a diversity action enforcing settlement in action arising under 

state law); Eatmon v. Bristol Steel & Iron Works, Inc., 769 F.2d 1503, 1516 (1985) 

(applying federal law in enforcement of conciliation agreement in Title VII action); 

Allen v. Alabama State Bd. Of Educ., 816 F.2d 575, 577 ("the validity of the 

settlement is a matter of federal law," but "it is important that. . . the parties have 

presented no rule of [state] law . . . requiring particular formalities to be observed 

by the [defendants] before their decisions become final and effective"); Brewer v. 

Muscle Shoals Bd. O f Educ., 790 F.2d 1515, 1519 (11th Cir. 1986) (applying 

federal law in enforcement of predetermination settlement agreement in Title VII 

action); Reed By And Through Reed v. U.S., 891 F.2d 878, 881 (11th Cir. 1990) 

(applying state law to enforcement of settlement in action under Federal Tort 

Claims Act). In the case sub judice, there is no question that defendants are bound 

to this settlement, under application of either federal or state law.

11



changed its mind after unfavorable publicity does not change the fact that it had 

already approved the settlement . . . "). The settlement agreement in Allen was 

enforced even though "no one signed the agreement on the Board’s behalf, and no 

formal vote had been taken by the Board." 816 F.2d at 576. See also, Rhein 

Medical, Inc. V. Koehler, 889 F. Supp. 1511, 1516 (M.D. Fla. 1995) ("Federal 

district courts have inherent power to summarily enforce settlement agreements 

entered into by party litigants in a pending case"); Dillard v. Crenshaw County, 748 

F. Supp. 819, 828-831 (M.D. Ala. 1990) (refusing to allow the Shelby County 

Commission to withdraw its consent to the proposed settlement of a voting rights 

lawsuit, and entering a Consent Decree despite defendants’ belatedly asserted 

objections); Reed By And Through Reed v. U.S., 717 F. Supp. 1511, 1516 (S.D. 

Fla. 1988) (refusing to allow the United States to rescind a settlement agreement 

while the issue of its approval was before the court, and holding that "the purpose 

of requiring court approval is to protect the [party’s] interest-not to allow another 

party to renege"), ajf’d 891 F.2d 878, 880-881, n. 3 (11th Cir. 1990) ("A settlement 

is as conclusive of the rights between the parties as a judgment." . . . "Once an 

agreement to settle is reached, one party may not unilaterally repudiate it."); 

Fulgence v. J. Ray McDermott & Co., 662 F.2d 1207, 1209 (5th Cir. 1981) 

(enforcing an oral settlement agreement in a Title VII action); Thomas v. State o f

12



La., 534 F.2d at 615 (reversing a district court order setting aside a settlement 

agreement which had been reached by the parties but never approved by the court). 

Likening the settlement agreement to a court-approved agreement, the Thomas 

Court held, "[although no court ever approved this settlement agreement, the same 

reason for enforcing a court-approved agreement — i.e., little danger of [litigants] 

being disadvantaged by unequal bargaining power — applies here." Id. Similarly, 

the parties’ settlement here should be enforced. Surely, there is no credible claim 

that the City of Cocoa had anything less than equal bargaining power with the 

seven individual African-American citizens and plaintiffs in this action.

Under Florida law, settlements are also highly favored, Utilities Comm ’n Of 

New Smyrna Beach v. Florida PSC, 469 So.2d 731, 732 (Fla. 1985), and will be 

upheld whenever possible, Robbie v. City o f Miami, 469 So.2d 1384, 1385 (Fla. 

1985). "A stipulation properly entered into and relating to a matter upon which it 

is appropriate to stipulate is binding upon the parties and upon the Court." Gunn 

Plumbing, Inc. v. Dania Bank, 252 So.2d 1, 4 (Fla. 1971). "This is especially true 

of settlement agreements which are highly favored in the law." Dor son v. Dor son, 

393 So.2d 632, 633 (Fla. 4th DCA 1981). Accord, Lotspeich Co. v. Neogard 

Corp., 416 So.2d 1163, 1164-65 (Fla. 3rd DCA 1982) ("Settlement agreements are 

highly favored in the law and will be upheld whenever possible because they are

13



means of amicably resolving doubts and preventing lawsuits, . . . and should not 

be invalidated or, as here, collaterally defeated by the court," (internal citations 

omitted)); Crosby Forrest Products, Inc. v. Byers, 623 So.2d 565, 567 (Fla. 5th 

DCA 1993) ("Settlement agreements are highly favored and once entered, are 

binding upon the parties and the courts"); Wallace v. Townsell, 471 So.2d 662, 664 

(Fla. 5th DCA 1985) ("The parties to a civil action have the right to settle the 

controversy between them by agreement at any time and an agreement settling all 

issues in the case is binding not only upon the parties but also upon the court"); 

Pettinelli v. Danzig, 722 F.2d 706, 710 (11th Cir. 1984) ("Florida law favors the 

finality of settlements").12

B. The Parties Executed A Valid Settlement Agreement.

Defendants now argue that the City’s approval of the Consent Decree was 

somehow flawed for lack of a unanimous city council vote. R2-53-3 and 5. Two

12 If this Court determines that state law governs the enforcement of the 

settlement then this Court is bound by Florida appellate courts’ interpretations of 

state law. Shapiro v. Associated Intern. Ins. Co., 899 F.2d 1116, 1123 (11th Cir. 

1990); Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1466-67 (11th Cir. 1989), 

rev’d sub nom. on other grounds, Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 

(1991); Maseda v. Honda Motor Co., 861 F.2d 1248, 1257 n. 14 (11th Cir. 1988).

14



years ago, however, defendants vigorously defended the validity of the Cocoa City 

Council’s consent before the district court. Defendants averred that "Cocoa’s 

Consent was valid," R2-36-14; argued that "[ajmici’s claim of a lack of valid 

consent is unfounded," R2-36-15; and joined plaintiffs in urging the district court 

that the court, "having the power and authority to grant the relief set forth in the 

Consent Decree by virtue of Cocoa’s consent and Section 2 of the Voting Rights 

Act, should grant that relief." R1-29-2-3. Moreover, not once during the nearly 

two years of appellate proceedings in George did defendants take the position that 

the city council’s vote in May of 1994 was contrary to state law or invalid in any 

other way.

Without contesting that they knowingly, willingly, and with full authority, 

entered into a settlement agreement, the city changed its mind about wanting the 

settlement and hired new counsel to advance its changed position. Although 

defendants have new counsel (from the same law firm), their substitution of counsel 

does not afford them any legal basis to change their position with regard to the 

validity of the city council’s consent to the settlement or authority to settle. Daly 

v. School District o f Darby Township, 434 Pa. 286, 288-289, 252 A.2d 638, 640 

(1969). The law in this circuit is that litigants are bound by settlements entered 

into by their lawyers. Cia Anon Venezolana De Navegacion v. Harris, 374 F.2d

15



33, 35-36 (5th Cir. 1967) (rejecting a party’s argument that "counsel for the other 

parties to the litigation could not rely on the representation of [the party’s] counsel 

as to his authority [to settle]" and describing such a result as "striking] at the very 

basis upon which attorneys and litigants have compromised their differences for 

decades."). Of course, in the case sub judice, defendants’ counsel had express 

authorization to execute the settlement agreement and submit it for the court’s 

approval. R2-52-Exhibit A.

C. State Law Is Not A Bar To Entry Of The Consent 

Decree.

There is no requirement, under city, state or federal law, that a city council 

vote unanimously before it can settle litigation to which it is a party defendant.13

lj Defendants cited Fla. Stat. §§166.031(2) and (5) in support of their 

assertion, in the proceedings below, that a unanimous city council vote is required 

for a valid settlement under state law. However, neither of these statutory 

provisions have any bearing on the City Council’s authority to enter into a 

settlement agreement in federal civil rights litigation.

Fla. Stat. § 166.031(2) requires that municipal governing bodies amend their 

municipal charters whenever "a majority of electors voting in a referendum" vote 

in favor of a charter amendment.

16



A settlement agreed to by a majority of the city council is legally binding on the 

City of Cocoa.14 The resolution of the Cocoa City Council to enter into the

Fla. Stat. § 166.031(5) provides one method by which a municipal governing 

body may, by unanimous vote, "amend provisions or language out of the charter 

which has been judicially construed, either by judgment or by binding legal 

precedent from a decision of a court of last resort, to be contrary to either the State 

Constitution or Federal Constitution." This statutory provision does not prohibit the 

city council from settling litigation to which it is a party. In fact, sub-section (3) 

of the very statute cited by defendants states that Fla. Stat. §166.031 "shall be 

supplemental to the provisions of all other laws relating to the amendment of 

municipal charters and is not intended to diminish any substantive or procedural 

power vested in any municipality by present law" Fla. Stat. §166.031(3). The city 

of Cocoa has the power to enter into a settlement agreement in federal civil rights 

litigation. United States v. City of Miami. Fla.. 664 F.2d 435, 439 (5th Cir. 1981) 

0en banc) (Rubin, J., concurring) ("The parties to litigation may by compromise and 

settlement not only save the time, expense, and psychological toll but also avert the 

inevitable risk of litigation.")

14 The City’s charter states in part:

The council shall act by ordinance, resolution, motion, or

17



settlement and approve the proposed decree was adopted by "the affirmative vote 

of at least three (3) members of the council," as required by Art. Ill, § 13(b) of the 

Cocoa City Charter. The city charter plainly does not require unanimous vote of 

the Council to approve the settlement of litigation.

Defendants have not identified any other basis for invalidating the city 

council’s 1994 vote concerning the Consent Decree and defendants have not 

presented a colorable argument that any provision of the city’s charter or Florida 

law requires unanimous approval of a municipal governing body to enter into a 

settlement agreement or join in proposing the entry of a consent decree. There 

was, therefore, no basis for the district court’s Order invalidating the Consent 

Decree for the second time.

That the proposed consent decree alters the method of electing the city 

council without voter referendum approval is also not a bar to settlement or 

enforcement of the decree. Wise v. Lipscomb, 437 U.S. 535, 544 (1978) (districting 

plan proposed by city council and adopted by the Court was a legislative plan even

proclamation. No action of the council, except raising a quorum, shall 

be valid or binding unless adopted by the affirmative vote of at least 

three (3) members of the council . . .

City of Cocoa, Charter, Art.III, § 13(b). See Addendum Page 4.

18



where the city council had no authority under state law to amend its charter without 

voter referendum approval); McDaniel v. Sanchez, 452 U.S. 130, 152-153 (1981) 

(plan drafted by local legislative body is "legislative plan" for purposes of Sec. 5 

preclearance, and entitled to deference, even where state law requirements not 

satisfied); Tallahassee Branch o f NAACP v. Leon County, 827 F.2d 1436, 1439- 

1440 (11th Cir. 1987) (giving deference to reapportionment plan adopted by county 

commission despite the fact that county commission was without authority under 

state law to reapportion without voter referendum approval), cert, denied, 488 U.S. 

960 (1988); Straw v. Barbour County, 864 F. Supp. 1 148, 1155 (M.D. Ala. 1994) 

(approving apportionment plan adopted by county commission at meeting held 

without prior notice to the public required under state law); Dillard v. Crenshaw 

County, 748 F. Supp. 819, 828 (M.D. Ala. 1990) ("a federal court may adopt and 

implement a change in the electoral structure of a county commission proposed by 

the members of that commission, even if the commission would not have the 

authority under state law"); Potter v. Washington County, 653 F. Supp. 121, 123, 

125-126 (N.D. Fla. 1986) (where parties submitted a proposed consent decree and 

asked the Court to choose between the districting plans submitted by the parties, 

districting plan proposed by county commission given deference despite fact that 

county commission was without authority under state law to alter the method of

19



election absent a voter referendum); Armstrong v. Adams, 869 F.2d 410, 414 (8th 

Cir. 1988) ("[Ejection commissioners had the power to agree to a remedy which 

could have been imposed by the court. Any limitation of power imposed by state 

law on the Board of Election Commissioners is vitiated by the authority of the 

district court to remedy constitutional violations that may have occurred during the 

election.")

D. Equity Requires That The Consent Decree Be Enforced.

Plaintiffs, African-American citizens and registered voters, negotiated the 

terms of the Consent Decree in good faith. The district court voided the Consent 

Decree because in the court’s view, the sole African-American on the city council 

should have abstained from voting on the remedy to a voting rights discrimination 

lawsuit because "as an African-American candidate he stood to gain inordinately 

from the vote". R2-40-6. As a result, elections have continued under the very at- 

large system plaintiffs have challenged as racially discriminatory. Not surprisingly, 

these at-large elections have resulted in a changed composition of the city council. 

It is this two-year delay in the implementation of the agreement that has resulted 

in the city’s belated decision to proceed to trial rather than adhere to their 

agreement. Defendants should not be permitted to use this delay - caused by the 

district court’s legal error - as a device to avoid fulfilling the terms of the

20



settlement they agreed to more than two years ago. "[Allowing the government 

to arbitrarily and unilaterally refuse to perform its part of the bargain would be 

manifestly unjust." Reed, at 1518. This is particularly so given the egregious 

circumstances of this case. After the district court invalidated the consent decree 

in 1994 plaintiffs, not defendants, appealed the district court’s decision which 

prohibited one of defendants from voting on the decree. While defendants 

"offer[ed] no argument in opposition to the [plaintiffs’] position" in that appeal, 

they left it to plaintiffs to defend the validity of the city council’s vote. George, 

Brief of Appellees, p. 1. Only after this Court reversed the district court’s 1994 

Order invalidating the Consent Decree did defendants change their position 

regarding the legality of the city council’s vote. Furthermore, but for the district 

court’s original error in invalidating the Consent Decree, the Consent Decree would 

have been entered in 1994. Under these circumstances the Consent Decree should 

be enforced.

II. THE CONSENT DECREE IS CONSTITUTIONAL.

Plaintiffs’ complaint alleged that the at-large system, coupled with numbered 

posts, impermissibly dilutes the voting strength of African-American voters, in 

violation of Sec. 2 of the Voting Rights Act, 42 U.S.C. §1973. The seminal case 

interpreting Sec. 2 is Thornburg v. Gingles, 478 U.S. 30 (1986). The Supreme

21



Court has consistently re-affirmed the framework for analyzing Section 2 claims set 

forth in Gingles, most recently in Voinovich v. Quilter, 507 U.S. 146, 113 S. Ct.

1149 (1993) and Johnson v. DeGrandy, ___U.S.___ , 114 S. Ct. 2647 (1994). See

also Bush v. Vera, _  U .S.___, 116 S. Ct. 1941, 1969-70 (1996) (O’Connor, J.,

concurring).

Moreover, all parties filed extensive briefs addressing the application of the 

Supreme Court’s 1993 decision in Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816 

(1993) to the proposed Consent Decree, and the district court, following full 

consideration of those briefs, concluded that there were not "any particular 

problems with the decree itself', notwithstanding the decision in Shaw v. Reno. 

R2-43-3. No subsequent decision of the Supreme Court, or this Court, dictates a 

different result today.15

15 While settlement agreements can be modified to accommodate dramatic and 

unforeseen developments, the Supreme Court has stressed that parties are not 

entitled to modification whenever any new decision is handed down. "To hold that 

a clarification in the law automatically opens the door for relitigation of the merits 

of every affected consent decree would undermine the finality of such agreements 

and could serve as a disincentive to negotiation of settlements . . . "  Rufo v. 

Inmates o f Suffolk County Jail, 502 U.S. 367, 389 (1992).

22



Defendants have taken the position that M[t]he consent decree, as currently 

drafted no longer comports to [sic] the law in that it violates the Equal Protection 

Clause of the Fourteenth Amendment of the United States Constitution." R2-52-2. 

Defendants’ position is premised upon their unsupported assertion that "[t]he 

predominant factor motivating the [adoption of the 4-1 District Plan] . . . was the 

race of the citizens effected [sic] thereby." R2-52-1. Defendants erroneously 

equate "predominantly based on race" with the mere "intentional creation of 

majority-minority districts".16 The Supreme Court has already rejected such a 

sweeping position. Bush v. Vera, 116 S. Ct. at 1951-1952 ("strict scrutiny only 

applies where ‘the State has relied on race in substantial disregard of customary and 

traditional districting practices’" {quoting Miller v. Johnson, 115 S. Ct. 2475, 2497 

(1995) (O’Connor, J., concurring)) and strict scrutiny "does [not] apply to all cases 

of intentional creation of majority-minority districts.") As Justice O’Connor noted,

16 Defendants explained why they believe the Consent Decree is predominantly 

based on race in the following manner:

It is clear from the contemplation of the parties and the demographics 

utilized to form the districts in question that race was the predominant 

factor in the decision making process and terms of the settlement.

R2-53-2 (emphasis added).

23



a majority of the Justices agree that:

States may intentionally create majority-minority districts, and may 

otherwise take race into consideration, without coming under strict 

scrutiny . . . only if traditional districting criteria are neglected, and 

that neglect is predominantly due to the misuse of race, does strict 

scrutiny apply.

Bush, 116 S. Ct. at 1969 (O’Connor, J., concurring) (emphasis in original). See

also Shaw v. Hunt,___U.S.___ , 116 S. Ct. 1894, 1900 (1996); Miller v. Johnson,

115 S. Ct. at 248817 ("Redistricting legislatures will, for example, almost always 

be aware of racial demographics; but it does not follow that race predominates in 

the redistricting process." It is only where "the legislature subordinated traditional 

race-neutral districting principles, including but not limited to compactness, 

contiguity, respect for political subdivisions or communities defined by actual 

shared interests, to racial considerations" that race can be said to be the 

"predominant factor".); DeWitt v. Wilson, 115 S. Ct. 2637 (1995), affirming 856 F. 

Supp. 1409 (E.D. Cal. 1994) (affirming a district court decision rejecting a Shaw-

17 The Supreme Court emphasized that the claim in Miller was "‘analytically 

distinct’ from a vote dilution claim" under Section 2. Miller, at 2485 (<quoting 

Shaw, 113 S. Ct. at 2830).

24



type challenge to California’s redistricting where the plans were drawn "to 

maximize the actual and potential voting strength of all geographically compact 

minority groups of significant voting population," Wilson v. Eu, 4 Cal. Rptr. 2d 

379, 393 (1992)). The record in this case makes abundantly clear that other 

districting criteria were not "neglected" in the creation of the 4-1 District Plan, nor 

were they sacrificed or subordinated to race.

The position advanced by defendants would ignore entirely Miller’s caution 

that "the sensitive nature of redistricting and the presumption of good faith that 

must be accorded legislative enactments, requires courts to exercise extraordinary 

caution in adjudicating claims that a [legislative body] has drawn district lines on 

the basis of race." Miller, 115 S. Ct. at 2488. The 4-1 District Plan, drafted by 

defendants’ demographer, is a legislative plan which should be accorded deference. 

R2-36-Appendix C. Far from presuming good faith, defendants’ reading of Miller 

presumes invalidity of any legislative plan which includes any majority-minority 

district. This position simply has no merit. "[U]ntil a claimant makes a showing 

sufficient to support [an] allegation [that a districting plan is predominantly based 

on race] the good faith of a state legislature must be presumed." Miller, at 2488. 

Thus, the "change of law" which may, under some circumstances, justify 

modification of a decree, see Rufo, has not been established here.

25



A. The Record Clearly Demonstrates That Race Was Not 

The Predominant Factor In The Creation Of The 4-1 

District Plan.

The demographer who developed the 4-1 District Plan for the city, Mr. 

Johnson, testified that he was instructed:

to create a plan which would comply with one-person one-vote, Sec.
2 of the Voting Rights Act, Shaw v. Reno\ and protect incumbents by 
splitting them up into four different districts. The City was interested 
in avoiding a special election which would have been necessary had 
I not been able to split all incumbents among the four districts.

R2-35-Appendix C. He further testified that "[t]he African-American community

in Cocoa is highly concentrated in the southern end of the City." Id. The

districting map allows only one conclusion; District 1, the majority African-

American district in the 4-1 District Plan, is regularly shaped, extremely compact,

and merely recognizes a large, geographically compact predominantly African-

American community.18 Cf Thornburg v. Gingles, 478 U.S. 30, 50 (1986).

There simply is no credible argument that the 4-1 District Plan " subordinate [s]

traditional race-neutral districting principles, including but not limited to

compactness, contiguity, respect for political subdivisions or communities defined

18 A copy of the 4-1 District Plan is attached hereto as an Addendum. See 

Addendum page 1.

26



by actual shared interests, to racial considerations." Miller, 115 S. Ct. at 2488. It 

is apparent from the map that the only way to avoid drawing a majority African- 

American district in Cocoa would be intentionally to split the African-American 

community down the middle. See Addendum page 1. Of course, such intentional 

division or fragmentation of Cocoa's African-American community would itself 

violate plaintiffs’ rights under Section 2 as well as the Constitution. Major v. 

Treen, 574 F. Supp. 325 (E.D. La. 1983) (three judge court) (the division of 

concentrated African-American population at New Orleans, Louisiana, between two 

congressional districts violated Section 2); Voinovich v. Quilter, 113 S. Ct. at 1155 

(vote dilution may occur where minorities are "‘dispersed] into districts in which 

they constitute an ineffective minority of voters’") (,quoting Thornburg v. Gingles, 

478 U.S. at 46 n. 11); Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark. 1990) (three 

judge court) aff’d mem., 498 U.S. 1019 (1991) (dilution of minority voting strength 

in state legislative redistricting plan prohibited by Section 2). Avoiding unlawful 

fragmentation of the city’s Black population in the development of the 4-1 Plan 

was not only desirable, it was a "wholly legitimate" and compelling objective. The 

testimony of the city’s demographer demonstrates that the 4-1 Plan conforms to, 

rather than conflicts with the holdings of Shaw v. Reno and Miller v. Johnson.

27



In addition to the testimony of the city’s demographer and the map of the 4-1 

District Plan, the language of the Consent Decree itself supports the position that 

the purposes of the Consent Decree are wholly legitimate. These express purposes 

included 1) "provid[ing] minority voters equal access to the political processes" and 

2) "enhancing] the political participation and awareness of all citizens." Rl-29-2 

[Decree] (emphasis added). This statement of objectives clearly demonstrates that 

the city council did not pursue objectives which Miller condemns, but rather, 

sought to achieve goals expressly allowed by Miller.

Defendants have not, and cannot, make a showing that the 4-1 District Plan 

"subordinated traditional race-neutral districting principles, including but not limited 

to compactness, contiguity, respect for political subdivisions or communities 

defined by actual shared interests, to racial considerations" as is required in order 

to trigger the application of strict scrutiny. Miller, at 2488. In fact, defendants 

themselves have represented to the district court that "[district 1 is contiguous, and 

it is compact", and that "[district 1 has as its core Voting Precinct 55, a precinct 

of long-standing which is, and has been, majority-minority for years." R2-36-15. 

Defendants have provided no justification for their changed position.19 There is

19 Indeed, the city’s most recent position is inconsistent with a number of 

earlier positions it has taken before the district court and this Court. Defendants

28



absolutely no evidence to support the city’s conclusory statement that "race was the 

predominant factor in the decision-making process and terms of the settlement." 

R2-53-2. The 4-1 District Plan is completely in accord with the requirements of 

Miller and there is no basis for defendants’ claim that the plan violates Miller 

because racial considerations predominated in its construction.

represented to the district court that their motivation for moving to withdraw their 

consent was their belief that the consent decree, or remedy, was violative of Miller, 

but the relief they requested was that the court "order that this matter proceed to 

trial on the merits". R2-53-4. The suggestion that defendants are entitled to revisit 

the issue of liability under Sec. 2, even if assuming arguendo, the 4-1 District Plan 

was invalid under Miller - a position plaintiffs strenuously contest - is inconsistent 

with the city’s position before this Court where it argued that this Court should 

remand the case to the district court for consideration of "available remedies which 

do not classify any voters on the basis of race, such as limited and cumulative 

voting." Appellees’ Brief in George, page 18 (emphasis added). In summarizing 

their argument defendants stated "the Courts should not approve consent decrees 

or enter judgments requiring single member districts until and unless it has been 

demonstrated other race neutral remedies are unavailable." Appellees’ Brief in 

George, page 4.

29



Not only is the record devoid of evidence that would support a Miller claim, 

but the record clearly demonstrates that the Consent Decree complies with Miller 

v. Johnson, and the district court had already found, prior to Miller, that that court 

"[did] not have any particular problems with the decree itself' R2-43-3. Therefore, 

this Court should reverse the district court’s Order and remand the case for the 

limited purpose of entering the Consent Decree.

B. The Plan Embodied In The Proposed Consent Decree 

Satisfies Strict Scrutiny.

For the reasons set forth above, there is no basis for concluding that the 4-1 

Plan was racially gerrymandered or that the plan should be subject to strict scrutiny 

under Shaw and Miller,20 Nevertheless, assuming arguendo that the proposed 

Consent Decree is subject to strict scrutiny, there is no basis for concluding that the 

Consent Decree would not survive such heightened judicial review and defendants 

provide no argument that the 4-1 Plan does not satisfy strict scrutiny. Instead, 

defendants merely conclude that "to proceed with the Joint Motion to Enter Consent

20 C f Miller at 2488 ("Where . . . race-neutral considerations are the basis for 

redistricting legislation, and are not subordinated to race, a state can ‘defeat a claim 

that a district has been gerrymandered on racial lines’" and thus avoid the 

application of strict scrutiny) (quoting Shaw, id. at 2827).

30



Decree and Judgment at this point will violate the Equal Protection rights of those 

non-African American voters in the proposed District 1 . . . "  R2-53-3. Strict 

scrutiny would require the districting plan to be both justified by a compelling 

government interest and narrowly tailored to meet that interest. Miller, at 2482.

1. The Consent Decree Is Justified By A 

Compelling Government Interest.

As defendants have already conceded, compliance with Section 2 of the 

Voting Rights Act, 42 U.S.C. §1973, is a compelling government interest. 

Appellees’ Brief in George, p. 17. See also, Bush v. Vera, 116 S. Ct. at 1968 

(O’Connor, J., concurring); DeWitt v. Wilson, 856 F. Supp. at 1415; cf. Johnson v. 

Miller, 864 F. Supp. 1354, 1382 & n.31 (S.D. Ga. 1994) aff’d 115 S. Ct. 2475 

(1995). The city was aware of the strong evidence that the existing system for the 

election of city council members, interacting] with social and historical 

conditions,’ impairs the ability of a protected class [under Section 2 of the Voting 

Rights Act] to elect its candidate of choice on an equal basis with other voters." 

Voinovich, 113 S. Ct. at 1156. R2-36-3-5.

The most important considerations in determining a Section 2 violation in a 

challenge to an election structure that uses at-large elections are: 1) whether "the 

minority group . . .  is sufficiently large and geographically compact to constitute

31



a majority in a single-member district"; 2) whether "the minority group . . .  is 

politically cohesive", i.e., tends to vote as a bloc; and 3) whether "the white 

majority votes sufficiently as a bloc to enable it - in the absence of special 

circumstances . . . usually to defeat the minority’s preferred candidate." Gingles, 

478 U.S. at 50-1. Accord Johnson v. DeGrandy, 114 S. Ct. at 2657-8.

The first consideration, that the minority group is geographically compact 

such that a majority-minority district may be drawn, is established by the map of 

the 4-1 District Plan and census data, both of which were incorporated in the 

Consent Decree. R1-29-Attachments 1 and 2 [Decree], See also R1-35-Appendix 

B and C. Defendants admitted that plaintiffs could establish this first Gingles 

precondition. Rl-1-9 and R1 -13-3.

The second and third factors, that the minority community is politically 

cohesive and that the majority votes as a bloc sufficiently to defeat the candidates 

preferred by the minority, are established by evidence of racially polarized voting. 

Gingles, 478 U.S. at 56. Plaintiffs submitted evidence in the court below of 

racially polarized voting and this evidence was unrebutted by defendants. 

Plaintiffs’ evidence was in the form of an affidavit from an expert witness. Rl-35-

32



Appendix D. The affidavit analyzed all elections in Cocoa since 1981,21 in which 

African-American candidates were opposed by white candidates, using the same 

statistical techniques used and approved in Gingles.

Defendants admitted that, prior to this litigation, only two African-Americans 

had ever been elected to the Cocoa City Council and that none had been elected 

since 1981. R1 -1-7 and R1 -13-2. Defendants further argued before the district 

court that the city council had been advised by its lawyers, prior to entering into 

the settlement, that "two of the three Gingles ‘preconditions’ were easily met: a 

majority-minority single member district could be drawn in Cocoa, . . . and election 

returns showed . . . there was ‘political cohesion’ amongst [black voters]". R2-36- 

3.

2. The Consent Decree Is Narrowly Tailored.

There is no question that the Consent Decree, including the 4-1 District Plan, 

is narrowly tailored. The plan - designed to remedy the dilutive effects of the 

city’s at-large and numbered post election system - retains an at-large seat. Of the 

four single-member districts, only one has a majority African-American

21 Election returns prior to 1981 were not available by precinct, making a 

similar analysis of earlier elections impossible.

33



population.22 R2-53-1. The majority African-American district "has as its core 

Voting Precinct 55, a precinct of long-standing which is, and has been, majority- 

minority for years." R2-36-15-16. The majority African-American district is both 

compact and contiguous. Id. The plan was scheduled to be implemented on a 

staggered basis to allow the incumbent board members to serve out their full terms. 

R1-29-5.

Since the Consent Decree is both justified by a compelling government 

interest and narrowly tailored to meet that interest, it survives strict scrutiny review.

22 The 4-1 Plan does not "maximize" African-American voting strength. 

African-Americans make up 28.54% of the city’s population. The 4-1 District Plan 

consists of one majority African-American district out of a total of five districts, 

i.e., twenty percent (20%).

34



CONCLUSION

For the foregoing reasons, the district court’s Order should be reversed, and

the case remanded to the district court with instructions that that court enter the

Consent Decree.

Respectfully submitted

Cristina Correia 
Laughlin McDonald 
Neil Bradley 
Maha Zaki
ACLU Foundation, Inc.
44 Forsyth Street, N.W.
Suite 202
Atlanta, GA 30303 
404-523-2721 
Fax: 404-653-0331

Elaine R. Jones 
Director-Counsel

Theodore Shaw 
Norman J. Chachkin 
Jacqueline A. Berrien 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, N.Y. 10013 
212-219-1900 
Fax: 212-226-7592

Attorneys For Appellants

35



COLOR CODED COPY OF R l -3 5 -A p p e n d ix  B.

,FL

DENOTES AREA OUTSIDE OF MUNICIPAL CORPORATE LIMITS

ADDENDUM PAGE 1



SECTION 2 OF THE VOTING RIGHTS ACT OF 1965, 
TITLE 42, UNITED STATES CODE

SUBCHAPTER I-A—ENFORCEMENT OF VOTING RIGHTS

§ 1973 . Denial or abridgement of right to vote on account of 
race or color through voting qualifications or p rerequ i­
sites; establishment of violation

(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 m anner 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 1973b(f)(2) of this title, as provided in subsection (b) 
of this section.

(b) A violation of subsection (a) of this section is established if, 
based on the totality of circumstances, it is shown that the political 
processes leading to nomination or election in the State or political 
subdivision are not equally open to participation by members of a 
class of citizens protected by subsection (a) of this section in that its 
members have less opportunity than other members of the electorate 
to participate in the political process and to elect representatives of 
their choice. The extent to which members of a protected class have 
been elected to office in the State or political subdivision is one 
circumstance which may be considered: Provided, That nothing in 
this section establishes a right to have members of a protected class 
elected in numbers equal to their proportion in the population.

(Pub.L. 89-110, Title I, § 2, Aug. 6, 1965, 79 Stat. 437, redesignated Pub.L. 
91-285, § 2, June 22, 1970, 84 Stat. 314, and amended Pub.L. 94-73, Title 
II, § 206, Aug. 6, 1975, 89 Stat. 402; Pub.L. 97-205, § 3, June 29, 1982, 96 
Stat. 134.)

Addendum Page 2



166 MUNICIPALITIES

166.031 Charier am endm ents.—
(1) The governing body of a municipality may, by 

ordinance, or ihe electors oi a municipality may, by peti­
tion signed by TO percent of the registered electors as 
cf the last preceding municipal general election, submit 
to the electors of said municipality a proposed amend­
ment to its charter, which amendment may be to any 
part or to all of said charter except that part describing 
the boundaries of such municipality. The governing 
body of the municipality shall p lace the proposed 
amendment contained in the ordinance or petition to a 
vote of the electors at the next general election held 
within the municipality or at a special election called for 
such purpose.

(2) Upon adoption of an amendment to the charter 
of a municipality by a majority of the electors voting in 
a referendum upon such amendment, the governing 
body of said municipality shall have the amendment 
incorporated into the charter and shall file the revised 
charter with the Department of State. All such amend­
ments are effective on the date specified therein or as 
otherwise provided in the charter.

(3) A municipality may amend its charter pursuant to 
this section notwithstanding any charier provisions to 
the contrary. This section shall be supplemental to the 
provisions cf all other laws relating to the amendment of 
municipal charters and is not intended to diminish any 
substantive or procedural power vested in any munici­
pality by present law. A municipality may, by ordinance 
and without referendum, redefine its boundaries to 
include only these lands previously annexed and shall 
tile said redefinition with the Department of State pursu­
ant to the provisions of subsection (2).

(-) There shali be no restrictions by the municipality 
on any employee's or employee group's political activity, 
while not w orking , in any referendum  changing

(5) A municipality may. by unanimous vote of the 
governing body, abolish municipal departments pro­
vided for m the municipal charter and amend provisions 
or language out cf the charter which has been judicially 

:d. either by judgment or by binding legal prece-c or. str i. 3 . 1  c m c i  k j  j  u  o i  u  j  u n  i U H  l y  I to U  C I  j j i c u t ; *

cent from, a decision cf a court cf last resort, to be con­
trary to either the State Constitution or Federal Constitu-
iiOfi
. (6) Each municipality shall, by ordinance or charter 
provision, provide procedures for filling a vacancy in 
office caused by death, resignation, or removal from 
office Such ordinance or charter provision shall also pro­
vide procedures for filling a vacancy in candidacy 
caused by death, withdrawal, or removal from the ballot 
of a qualified candidate following the end of the qualify­
ing period which leaves fewer than two candidates for 
an office.

H i s i o r y . - s  i cr w-i2r s ’ m cc-SS s i SO-105 s <3 cN 9-0-315 s 
i ;  cf. 9V--3S

Addendum Page 3



CITY OF COCOA
CHARTER Art. Ill, § 13

Section 13. Council Quorum; Council Votes; Council Rules.

(a) Three (3) members of the council shall constitute a quorum, 
but a smaller number may adjourn from time to time and may 
require the attendance of absent members in such manner and 
under such penalties as the council may prescribe.

(b) The council shall act by ordinance, resolution, motion, or 
proclamation. No action of the council, except raising a quorum, 
shall be valid or binding unless adopted by the affirmative vote of 
at least three (3) members of the council. Voting shall be accom­
plished by having the presiding officer of the council request 
affirmative and negative votes. Upon the request for negative 
votes, all council members opposed to the question shall respond 
with "nay .” The vote of each member of the council voting shall 
be recorded in the minutes for such council meeting.

(c) The city council may enact rules of procedure, prescribe 
penalties for a breach of same, and enforce such penalties.

Addendum Page 4



CERTIFICATE OF SERVICE

I hereby certify that the foregoing Brief of Appellants was served on defense 

counsel by U.S. Mail, first class postage prepaid, addressed to: J. Wesley Howze, 

Jr., Esq., Amari, Theriac & Eisenmenger, P.A., Imperial Plaza, Suite B104, 6769 

N. Wickham Rd., Melbourne, FL, 32940.

Done this 3rd day of December, 1996.

Cristina Correia



\