McCarty v. Henson Court Opinion

    ll34

v' iit.o '. ^,, i'...q
---

749 FEDERAL Rf,PORTER, 3d SERIES
a,

and followed any recommendations made
concerning safety at tl.re Tiboscopl facility.
Similarly, t}e production foreman fOr the
coating manufactuiing unit where the acci-
dent occuned testified that Tuboscope per-
sonnel relied upon the expertise of AMF,s
safety division in matters relating to safe_
ty. From the evidence presented, the jury
could reasonably find reliance ana a tuitini
into a false sense of security. Thus con-_
cluding, we need not address the first two
alternatives, for establishment of any of
the three is enough to support the jury,s
findings.

Finding sufficient evidenee to support ajury verdict imposing liability 
- 

under
S 324A, we AFFIRM.

l?,'lu"o,ilfl* "},iffi 
[,Story impact were not

(2) the same findir

H::1,'l;1,,,* ruxi.T"" & ;fi
Affirmed.

l. schools @=53(l)

,,,J"ffi .*l':lli,?::l1T'ffiX,,Hli
by choiee of at-large scheme fo. el"ctioi?
school board trustees, plaintiffs ;;;
bound to prove that the plan had diseriiri
natory impact upon their voting st"eng;
and that the system was implement"t'J
maintained with intent to aiscriminatl.
U.S.C.A. Const.Amends. 14, lS; Fed.Ru-f
Civ.Proc.Rule S2(a), 28 U.S.C.A.; VoUo]
Rights Act of 1965, S 2 et seq., 

", "r.ted, 42 U.S.C.A. 5 19?B et seq.

2. Schools @53(l)

. In determining whether at-large elee-
tion plan had discriminatory impact uoon
voting strength and whether system was
implemented or nraintained with intent to
discriminate, court was to consider totalitv
of circumstances generally and also criteria
outlined by the court in judicial precedenl
U.S.C.A. Const.Amends. 14, 1b; Fed.Rules
Civ.Proc.Rule SZ(a), 28 U.S.C.A.; Voting
Rights Act of 1965, S 2 et seq., as amend"-
ed, 42 U.S.C.A. S 19?B et seq.

3. Schools e53(1)

.. - Opinion testimony of polarized voting
did not alone suffice to show discriminati
ry impact of at-large scheme for election of
school board trustees, in violation of Four-
teenth and Fifteenth Amendments, and dis-
trict court's findings that at-large system
had not been created or maintained with
diseriminatory intenf and that there was
failure of proof that system operated to
dilute black votes or that it had discrimine-
tory impact were not clearly erroneous,
but, rather, were supported by the record.
U.S.C.A. Const.Amends. 14, 15; Fed.Rules
(liv.Proc.Rule S2(a), 28 U.S.C.A.; Voting

Jack McCARTy, et al.,
Plaintiffs.Appellants,

v.

Ben HENSON, et al.,
Defendants-Appellees.

No. 84-2006.

United States Court of Appeals,
Fifth Circuit.

Dec. 12, 1984.

A challenge to the atlarge system of
voting for school board members was re-
jected by the United States District Court
for the Eastern Distriet of Texas, Robert
M. Parker, J., and plaintiff black voters
appealed. The Court of Appeals, Alvin B.
Rubin, Circuit Judge, held that (1) opinion
testimony of polarized voting did not alone
suffice to show discriminatory impaet of
at-large scheme in violation of Fourteenth
and Fifteenth Amendments, and District
Court's findings that the atJarge system
had not been created or maintained with
discriminatory intent and that there vr.a.,

I

I

I

I
(

I

l
i



McCARTY v. FENFON rri'r'
"^"-. 

- rre t+ tir {trsal 
- r -r-:*. - rrrhp i

;::fi: iH""dl*i,1lltlr.,":":*"11,111;3,E*Ti'
I **ffi ,; 1T' I" di s irict co u rt, . 

* ":' il1f;*:? ;ti'"",1,}"i[l-J {i "[

ffi:ffi$ffi**gmmm*lff*
f,,T*flI.xljTJrTiI 

"$ffiiiil].:'# rhe district court round: the Schoor Dis'

l'*""xffi ','ff [Hil,{Ji:tis1'Ii]};Iillffi J"'"rl'ru'rm""l3ui;ii
eiv-Proc.Rule szt"l, 

tza*U'i'6'e'' Voting 
'"p']"'i" 

is concentrated in the northeast-

Hffi i:i :i' Ifl t? :ittrtl:gl'il,'f,r$$lUlll*"':li"1 n :l;
iu7 i, u.s.c.A' s 1f 

rate 1960's by successive consolidation of

C,ons[.Amends' 14' lD' 
several separate districts'

cornett, r.n" u-ut'u' *icht'1' 9::' r.?Y :ilJ Jl::l fr,'$*:fi':"!ilt"'H
,.;';;;, i"x', for plaintiffs-appellants' 

Robert Bills, was defeated in 19?5. and

Hens.lee & Ryan, Donald G. Henslee, ,r*^ 
" 

fn-- iif'O, Geneva Bailey, a black

o""iJ p. nr"n, iustin, Tex', M-ike Y*ul.1 *o*"n, was anpoilld to fill a vacancy on

"d;; r;;.:i;; n"r.".,1lal. & N. Lamar il;;il.' rn rgsi she was elected, but,

ISD' *i"t tr'" ran for re-election in 1981' she

Appeal from the United States District was defeated'

t#i?t'ii"'g"tt""; Distriet of Texas' Black voters register and vote in l'amar

Berore .LARK, chier Judge, G.LD- g",tl'#lllt*'l'llX.fiitrL: ?iiil
BERG and RUBIN' ci*.,it Judges' Jtilffi the candirlacv of black persons for

ALvrN B. RuBrN, circuit Judge: HIT* r*X':'#"liii:Il,H JI:

Black voters contend that their vote has ffi; ;;" frovidirg educational t"Iit":
U"""n"iil,rt"a, in vioiation of the fourt€enth t"n"-*"*rt rate for black students ts

and fifteenth u*"nJ*"no' by the election i"^ti"tloj'lo*"' tt'an for whites' and on

of schoot Uoa.a trultr.r ,i, f".g" and seek ii:"'}i;;' .i.r..r."nt of ,:tl_c. 
_?I]1"

an order ,t,r, .n" *f,i*-mem"bers-of the iii,i,';;", black studenls perform signif-

iil;'L;'r Independent School District ;;;;6'u"t*' tt'"n the statewide averase

in Lamar County, h"*as, be elected from i"t'ii".u-ti'a"'"' Manv- black cit-z11ts

single-membet aitit-t*-'the district court ;"";" il;-;;po't"a to advisory commit-

found that tt'u ul-t"tg" tv:Tl. t''9 ,lo^t ffit' ;;JJ; tl" Boutd of Trustees in

uu"n "'""t"a "' "';i;;;';d 
with discrimina- [iit# "i""tr"'"r 

and fiscal poliev deci-

**' ir,t"t and that the Plaintiffs hr

fii*'H*r#1"HJl"fr"llllrl;l''T'" 9a',,': 
nr' shce 1e? 5' made signir'

natory impact. ,lu.ii.ci""l urt"l t"rora, i.*f"ii"* to r'i"" more minoritv emplov-

us to overturn findings of this nut r" ul-,,- ""''ituil 
levels of school District employ-

less we find them clJarly ur.on"or.. ,i'il ."ri.,"":.ularl.v as teachers' The Dis-

cause the fact findings "r..3u1,1,1r1a.."t'l' 
i.i.i:. tf"tl "*pl'o'""' 

represent a slightlv

the record, we affirm the district .orrit i.,*ii- Ott*ntaee tS'O%) than the black

-*



" 1116.
' t,

proportion of the overall population (7.1%),'

While the plaintiffs have 
-proved 

historical
discrim'ination in areas of social lifqih East '

Texas and Lamar County, they have not
proved that sueh past discritirination has a
lingering present effect that currently lim-
its minority participation in the voting pro
cess or minimizes minority voting strength
in the District. The court concluded,

"plaintiffs have not proved that a discrimi-
natory intent motivated or motivates the
North [amar Independent School District
in its utilization of the at-large election

scheme."

ll,2l As part of its conclusions of law,
the district court also stated:

Plaintiffs have failed to prove by a pre
ponderance of the evidence that vote di-

lution exists in the North Lamar Inde-
pendent School District as a special form
of discriminatory impact or effect whieh

is traceable to the at-large election
scheme-they have failed to show that
the at-large election system operates to
caneel out or minimize either their voting
strength or their ability to participate
fully in the political process.

Plaintiffs have not proved by a prepon-

derance of the evidence that the at-large
election system was either created or
maintained with invidious purpose.

At-large election schemes are not uneon-

stitutional per se.r To prove a denial of
constitutional rights under the fourteenth
or fifteenth amendment, the plaintiffs must
prove that the atJarge election plan has a
discriminatory impact upon their voting
strength and that the system was imple-

mented or maintained with the intent to
discriminate.2 In determining whether
these exist, the court should consider the

"totality of the eircumstances" generally

l. White v. Regester,4l2 U.S. 755, 765, 93 S.Ct'
2332,2339, 37 L.E,d.2d 314 (1973); Whitcomb v.

Chavis, 4O3 U.S. 124, 15ffi0, 9l S.Ct. 1858,

1876-78, 29 L.En.zd 363 (1971).

2. City of Mobile v. Bolden,,+46 U.S. 55, 100 S.Ct.
1490, 64 L.Ed.2d 47 (1980); Indge v. Button,
639 F.2d 1358 (5th Cir.l98l). &e abo Jones v.

Ciry ol bbbock, 727 F.2d 364 (sth Cir.l984)'

.{_-
?49 FEDERAL REPORITR, 2d SERIES \.

ina ,f," critpria outlined by this coud h
Zimmer a. McKeithen-E ln Lodge a, Bi
ton,l we indicated that, even afts Bol&t
tle existence of Lhe Zimmer factors mighi
be indicative, though not conclusive, of di!,
criminatory purpose.

l3l The district ceurt applied the Zinv
mer critnna and found 

. 
none sufficieotly

implicated in this suit to demonstrate either t

actual discriminatory vote dilution or puF
poseful discrimination in the creation o?
maintenance of the atJarge electiou gyt
tem. The conclusions of the plaintiffs'rit
nesses, that the Texas legislature enaeted
at-large election systems with the diserimi
natory intent to dilute black voting
strength, are unexplained and unsupported.
These witnesses were unfamiliar with the
legislative history and processes preceding
the adoption of these particular statutes,
and had little specific knowledge of how or
why the legislative system is maintained
and operated. The witnesses were also
unfamiliar with the adoption of the Dis-
trict's at-large election system and with
how or why that system is maintained.
The plaintiffs presented no other compe
tent evidence, direct or circumstantial, that
either the Texas legislature or the Lamar
Independent School District adopted or
maintained the at-large election system
with the intent to discriminate against
black voters. We do not, therefore, reap
praise the district court's assessment of the
weight to be given to the opinion testimony
offered by the plaintiffs.

The plaintiffs' failure to prove discrimi-
natory intent supports denial of relief on

the constitutional claims. However, the

district court's findings, recited above, also

show that the plaintiffs did not establish

discriminatory impact. There is no evi-

dence that candidate slating is practiced in

3. 485 F.2d t297 (5th Cir.l973) (en banc), afld
on other grounds, sub nom., East Caroll Parish

*hool Bd. v. Marshall,424 E.S. 636, 96 S.Ct'

1083, 47 L.Ed.2d 296 (t976).

4. 639 F.2d 1358, 1375 (sth Cir.l981).

t, i
t.

the echt

Bo otb(
black P

several
that an

would I

blscks i

tPecific
the Prer
numel0
Board's
black ct

funding
dents, :

visory
and hir
plaintif:
Board's
with s1

unreSP(
crimina
during
not est
sive to<

Plain
state P

tenuout
conced(
both s

against
plaintif
that hi;

in the
shows
elected
no maj
quirem
of mint
es did ,

voting,
show d

The
dence r

oratr
their cl

caneels

5. 42t

6. 42L

7. *c.
(srh (

_ *=4id,a- __



t

-
McCARTY v. HENSON

. r'clt.erTabFld rl3a (t9ta) r

the school district, antl the plaintiffs allege 1 or their ability to
no other hindrance to fhe candidacy of political process.

black persons for the board' Although

several of the plaintiffs'witnesses asserted

that an independent black Board member

would be more responsive to the needs of
blaeks in the District, none testified to any

specific examples of unresponsiveness by

the present Board. The district court citcd

numerous uncontroverted examples of the

Board's responsiveness to the needs of the

black community, including participation in

funding programs for disadvantaged stu-

dents, appointment of black citizens to ad-

visory committees, and efforts to recruit
and hire more minority employees. The

plaintiffs did not rebut this evidence of the

Board's responsiveness by coming forward
with specific instances of present Board

unresponsiveness. The evidence of dis-

criminatory hiring practices by the Board

during the late 1960's and early 1970's does

not establish that the Board is unrespon-

sive today.

Plaintiffs submitted no evidence that the

state policy behind at-large districting is
t€nuous. Although the defendanls have

conceded that historically there has been

both social and economic discrimination
against black persons in the District, the

plaintiffs presented no evidence connecting
that history to present black participation

in the political system. The evidence

shows that candidates in the District are

elected by plurality vote, and that there are

no majority clr anti-single shot v<lting re-

quirements that might prevent the election

of minority candidates. Plaintiffs' witness-
es did offer opinion testimony of polarized
voting. but this alone does not suffice to
sho*' discriminatory impact.

The plaintiffs have not submitted evi-

dence of an aggregate of Zimmer factors
or a totality of circumstances to support
their claim that the at-large voting system
cancels out or dilutes their voting strength

5. 42 U.S.C.A, S 1973 (West Supp.l983).

6. 42 U.S.C.A $ ls73 (West Supp.l983).

7. See Jor;c: t ('iti o! l-ubbock,727 F.2d 364,379
(sri. Cir.195r; cii;r,., S.Rep. No. 417 ar 28-29,

rl37
par[icipate fillly in the

t41 In their eomplaint, the plaintiffs in-

voked the Voting itigt ts Aet 5 but they did

not make any specific allegation that the
Act had been violated, nor did they raise
the Voting Rights Act issue in their argu-
ments to the district court. Instead, they
relied on asserted violations of the four-
teenth and fifteenth amendments. The tri-
al court consequently made no findings un-

der the Voting Rights AcL

Although the plaintiffs argue in their
brief that they are entitled to relief under
the Voting Rights Act, the findings of faet
by the district court on the constitutional
issue show that it would have denied relief
under the Act had the claim been urged.
The Act forbids any voting practice that
"results in a denial or abridgment of the
right of any citizen of the United States to
vote on account of race or color." 6 Its
violation is established by proving discrimi-
natory impact under a "totality of circum-
stances." The legislative history to the

Act lists a set of objective criteria to guide

the courts in analyzing the discriminatory
impact of an election system. This list
incorporates the Zimmer criteria with a

few additions.T Since the district court
found no discriminatory impact, i.e., no

abridgment of the right to vote on account

of race, and that the political processes are

equally open to participation by black per-

sons, the plaintiffs have not established a

violation of the Voting Rights Act. Al-
though the Act was amended in 1982 to
eliminate the requirement that a plaintiff
under the Act prove that the election sys-

tem was implemented or maintained with
discriminatory intent,s the plaintiffs in this
case have not establislled the denial or
abridgment of their right to vote that is a
prerequisite to relief.

198? U.S.Codc Corrg. and Ad.News 177, at 206-
07; II.R.Rct'. No. 227 at 30.

E. 42 t \ : ^, q lq73 (West Supp.1983). See

Jone: ,. L::\ t)i Lubbock,727 F.2d 364, 378 (sth
Ci:-.lq i

t

E**



1r38

For these reasons,
FIRMED.

Edward Linn HEARTFIELD,
Plaintiff-Appellee,

Y.

Sharon Mary HEARTFIELD,
Defendant-Appellant.

No. 83-2525.

United States Court of Appeals,
Fifth Circuit.

Jan. 7, 1985.

Former husband, a Texas resident,
sued td enjoin former wife, a l,ouisiana
resident, from litigating child support and
visitation issues in l,ouisiana court under
divorce decree originally issued by Texas
court. The United States District Court
for the Eastern District of Texas, Joe J.
Fisher, J., granted the injunction, and for-
mer wife appealed. The Court of Appeals
held that: (1) District Court had jurisdic-
tion to enforce compliance with provisions
of the Parental Kidnapping Prevention Act;
(2) under the Aet, Texas had exclusive jur-
isdiction to issue visitation and child sup
port orders; and (3) the District Court
lacked jurisdiction to issue preliminary in-
junction where the l,ouisiana court had not
yet acted in conflict with the Texas court.

Reversed.

Garwood, Circuit Judge, filed concur-
ring opinion.

Jerre S. Williams, Circuit Judge, filed
dissenting opinion.

l. Federal Courts e8, l5
In former husband's suit to enjoin for-

mer wife from litigating child support antl
visitation issues irr l,ouisiana court undcr

749 FEDERAL REPORTER, 2d SERIES
't

the jirdgment is AF- divqce decree originally issued by a Tbxss
court which made child support contingent
upon visitation, the Parental Kidnappins
Prevention Act applied.both to the visita-_
tion and child support provisions, gysl
though the Act does not specifically ad-
dress child suppor| or, in any event, the
child support issue was a matter of pendent
jurisdiction. 28 U.S.C.A. 55 1?98A,
1738AOX3).

2. Federal Courts F8
District eourt had federal question jun

isdiction to enforce compliance with provi-
sions of Parental Kidnapping Prevention
Act where courLs of two states asserted
jurisdiction over a custody determination.
28 U.S.C.A. 5E 1331, 1738A.

3. Divorce G=303(l), 309.1

Under Texas law, Texas had continu-
ing jurisdiction over modification of visita-
tion and child support provisions of divorte
decree of Texas court where father was
resident of Texas, regardless of residenee
of mother, who was made managing con-
servator, and of the children. V.T.C.A.,
Family Code 55 11.05(g), 1L.52(2,5, 10, 1l),
11.53(d, g).

4. Divorce F303(l), 309.1

Under terms of the Parental Kidnap
ping Prevention Act, Texas had exclusive
continuing jurisdiction over modification of
visitation and child support provisions of
divorce decree of Texas court where father
remained resident of Texas since the origi-
nal divorce decree and where Texas had

continuing jurisdietion over the visitation
and child support provisions of the decree
under its own laws. 28 U.S.C.A.
SS l?38A(cX1), (d); V.T.C.A., Family Code

SS 11.05, 11.05(g), lL.52(2, 5, 10, 11), ll.-
53(d, e).

5. Courts @508(2)

District court lacked jurisdiction to en-
join former wife, a l,ouisiana resident
from litigating child support and visitation
issues in l,ouisiana court under divorce de
cree origiru)ll issuecl t'.t' Tt'xlis court where
Louisiar,ll rrrurt hat.l not \'('l atted in
flict witl, '; 

',) as. ('ourt.

Michael.
defendantr

Orgain,
Everett B'
tiff'apPelle

APPeel 1

Court for

Before l

wooD, ci

PER CU

This casr

child supl
rights unt

issued bY

appellee E

Texas, file
in Texas s

the mothe
now a resi
the child
the Iouisir
guccessful

the mother
ty of the
tion for tI
ana court
the Texas

Sharon
vorced by
Crcunty, T
Heartfield
tor of th,
The divor<
child supl
the divorr
three chil
they hav,
years. Er
&s.

In June
the Jeffer
requestinl
In respor
seel.ir:,: i:

chil, :-,, .