League of United Latin American Citizens (LULAC), Council #4434 v. Mattox Memorandum Opinion and Order

    UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION FI LED
LEAGUE OF UNITED LATIN AMERICANS 
CITIZENS (LULAC), COUNCIL #4434§
et al. §

Plaintiffs, §
AND §
HOUSTON LAWYERS ASSOCIATION §
et al. §

Plaintiff-Intervenors §§V. s
§JIM MATTOX, et al.' §

State Defendants §
AND - • §
JUDGE SHAROLYN WOOD AND §
JUDGE F. HAROLD ENTZ §

NOV 08 lS8$. ,,
U. S. DISTRICT COURT. ' ClfFttCS OFFICE

BYi^VW^TT.. DEPUTY

MO-88-CA-154

MEMORANDUM OPINION AND ORDER
The above-captioned cause came on for trial before the Court 

on September 18,.1989. This suit was brought by named individual 
Plaintiffs and members of the League of United Latin American 
Citizens ("LULAC"), Council #4434, LULAC Council #4451 and LULAC 
Statewide. Plaintiffs are Mexican-American and Black citizens of 
the State of: Texas, Plaintiffs seek (1) a Declaratory Judgment

~  • : \  ; ;  •; r - . r :  '  c-. • • . . . . .  ^ v

that the existing at large scheme of electing State District Judges 
in nine (9)- .target counties of the State of Texas violates 
Plaintiffs' civil rights by unconstitutionally diluting the voting 
strength of Hexican-American and Black electors in violation of

1



«

Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 
S 1973 (West Supp. 1989) ("Voting Rights Act")1; (2) a permanent 
injunction prohibiting the calling, holding, supervising or 
certifying any future elections for District Judges under the 
present at-large scheme in the target areas; (3) formation of . a 
judicial districting^scheme by which District Judges__in the target 

elected from districts which include single member 
districts; and (4) costs and attorneys' -fees. : a*; * rt f -rri ? i:c

This case really had its beginning in 1965, when Congress

Section 2 provides in pertinent part:
"(a) No voting qualification or prerequisite to 
voting or.standard, practice, or procedure shall be 
imposed or applied by any State or political 
subdivision in a manner which results in a denial or 
abridgement of the right of any citizen of the United 
States to vote 'on account of race or color .... ;
"(b) A violation of subsection (a) of this section 
is established if, based upon the totality of 

tcircumstances, itr> is - shown that the political u 
processes leading to nomination or election in the 
State" or political subdivision are not.equally open r.. s ; 
to participation by members of a class of citizens 
protected by subsection (a) of this section in that 
its members have less opportunity to participate in 
the political process and 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-’ r...." 
proportion in the population." \

(Emphasis in the original.) r r::r>-, ...c,, - ..

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passed the Voting Rights Act and it was signed by President 
Johnson. This Act, as everyone knows, had as its purpose -"to -rid
the country of racial discriminating in voting." • --

The next chapter in the saga was the holding in Chisom v. 
Edwards, 839 F.2d 1056 (5th Cir. 1988), cert, denied, sub nom, 
Chisom v. Edwards, 109 S .Ct. 310(1989]-(Chisom I). In Chisom I 
Judge Johnson held: "Minorities may not be prevented' from using 
Section 2 [of the Voting Rights Act] in their efforts to combat 
racial discrimination in the election of state judges; a contrary 
result would prohibit minorities from achieving an effective voice 
in choosing those individuals society elects to administer -and 
interpret the law." ,• • ; -. -- - ---

- Having concluded, as will later be pointed out in formal
Findings of Fact and Conclusions-of Law, that there "is racial 
discrimination in the election of state judges in some counties of 
the State of Texas, and the law plainly being that uuch 
discrimination is prohibited by the Voting Rights Act, this opinion 
should not come as any surprise to the attorneys or judges of this 
State. ^

Mr. Justice Holmes, in Southern Pacific Co, v. Jensen. 244 
U.S. 205, 221, in dissenting, said:

I recognize without hesitation that judges do and - J! 
must legislate, but they can do so only intersti— 
tially; they are confined from molar to molecular

3



motions.
This dissent has been on the books for 82 years and, while 

this Court recognizes that some judges may legislate, this Court 
is extremely reluctant to do^so. Legislation should be done by 
legislators. This Court has determined that our current system, 
as it applies to some counties, violates Section 2 of the Voters, 
Rights Act. Some fixing has to be done, because the current system 
is broken. n o x ni rr„- r n1- . ,

In writing this opinion, I am cognizant of the fact that our 
Texas Constitution will_need to be amended. Legislators should 
seriously consider nonpartisan elections for District Judges. As 
Chief Judge Tom Phillips, pointed out in his testimony, it really 
makes no sense that judges are selected because of their political' 

filiation. A judge should decide matters before him without , 
regard to partisan p o l i t i c s I t  speaks well of our current 
judiciary that our sitting judges have been able to make decisions f 
without regard to whether the judge is Republican or Democrat.

As long as judges, ; however, are selected on a partisan 
ballot, there will be some rancor and enmity between the successful 

the unsuccessful candidate. The loser is going to have regrets 
hy virtue of the fact that she or he did not secure enough votes 
in an election. It makes no sense to believe that a judge is

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selected because the top of the ticket is either weak or strong.—  

This Court felt the animosity between certain judges in the u.
courtroom. _There is no need for this. Certainly-judicial reform ---
will not make all candidates live by the Golden Rule, but it is a 
step in the right direction, x . - •_ .. v. ,;

It was brought to the Court's attention that perhaps a 
majority of the voters in a General Election, and for that matter, 
in Primary Elections, have no idea of the qualification of a judge 
for whom they vote. Their vote is cast because a straight ticket i_La~
is being cast,' 'and a 'straight ticket includes judicial nominees __
from a particular political party.

If the Constitution is to be changed, would it not make 
sense to have judges elected when members of school boards or city 
councils are elected? These races are traditionally nonpartisan, - 1 7 ?
and people going to the polls to vote for school trustees or mayors L.i: c 
have for nthe most part some idea of the qualifications of the 
candidates. Judges could be selected at the same time in order to - ̂ .. 
make sure that one was not getting votes simply - because one is "  n: 
Democrat or Republicans Minority voters could go to the polls - 
with their heads held high and with some realization that their 
preferred candidate either would be or could be elected.

Certainly, it is not Court's intention to tell the

5



legislature how its job is to be accomplished. Single member 
districts may or may not be the answer if we are to continue to 
have partisan elections. There may be easier and better solutions 
that can evolve through the legislative process.

These are troubled- waters. n One liesitates to plunge into 
such waters, because our system of selecting judges has, for the. 
most part, served us well for many many years. Our Congress, 
however, in -1964, made changes. LOur: Courts ’have construed thosei 
changes, and it is ' now necessary to move forwardo so that 
minorities can realize the rights legally bestowed upon'them, and 
which have, in the past, been denied.-

THE PRESENT AT-LARGE SYSTEM , il. „ ^
This litigation ’challenges trhe system of electing 172 

District Court Judges at—large from areas composed of entire 
counties.2 ■ jl ... . .... :__. v

The present system of electing District Court Judges in 
Texas requires that each judge be elected from a District no 
smaller than a county. Tex. Const. Art. 5 § 7a(i) (Vernon Supp.

The counties at issue are: Harris, Dallas, Tarrant, Bexar, 
Travis, Jefferson, Lubbock, Ector and Midland.

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1989) .3 - _Each Judge serves a term of four (4) -years.~ Tex. Const. 
Art. 5 § 7 (Vernon Supp. 1989). Candidates for District Judge must 
be citizens of the United States and the State of Texas, licensed 
to practice law in this State and a practicing lawyer or Judge of 
a Court in this State, or both combined for four years. Id. 
Candidates must have been a resident of that election district for 
at least-two |2) years and reside in that district during his or 
her term of election. Id. District Court Judges must be nominated 
in a primary election by a majority of the votes cast. Texv 
Election Code § 172 .DG3=tVernon 1986) . - Each candidate's political - 
Party is indicated on the election ballot.Judicial candidates are 
usually listed far riown on an election ballot. 'They run for t 
specifically numbered courts and must secure a plurality of the 
vote in the general election to win a judicial seat. -.ho

s . i -  I W T .-n i -  • ■ ; i-* r r > r ... C  C  O i C ; '  "■.; i r  1.0 o f -  v  . i c  -. • . ■ •; : ‘  i ' '  xrc

r- • METHODOLOGY, DATA AND ELECTIONS ANALYZED V : ,, . i&J fa- 
Statistical analysis is the common methodology employed and t 

accepted to prove the existence of political cohesiveness and

-This system is "at-large" because judges are elected from i 
the entire county rather than from geographic subdistricts within -V’ the county. ■-

7



racial bloc voting necessary to establish a voter dilution case.4 
Ecological regression analysis5 and extreme case analysis6 were the 
types of statistical analysis used by Plaintiffs' experts in the 
present case.7

In Thornburg v. Ginales. 478 U.S. 30, 106 S.Ct. 2752, 92 
L.Ed.2d 25 (1986), Justice Brennan held thatracial bloc^voting can 
be established by a type of abstract statistical inquiry called 
"bivariate regression analysis." This analysis correlates the race 
of the voters and the level of support given to the candidate. 
Id. at-61-» - - If a candidate is supported by a large proportion of 
the minority group yet does not win, the vote is declared to be 
racially polarized in a legally significant sense and racial bloc 
voting is taken to be established.

All-variables beside race of the voters and support given 
the candidates that might also explain voters' , choices are 
expressly excluded from consideration. In Justice Brennan's view, 
"[i ]t is the difference between the choices made by [minorities] 
and whites - not the reasons for that difference - that results in 
[minorities] having less opportunity than whites to elect their 
preferred representatives." Id. at 63.

5c Ecological regression analysis shows the relationship 
between the ethnic composition of voting precincts and voting 
behavior, i.e.^ which candidate receives how many-votes from each 
race/ethnic group. This type of analysis incorporates the 4ise of 
a coefficient of correlation or Pearson r, accompanied by an 
estimate of the statistical significance of r, the coefficient-Of 
determination and the regression line. See Overton v. City of 
Austin. 871-F.2d 529, 539 (5th Cir.i 1989) . i.he ' =;-ni :cans ,

6 Extreme case or homogenous precinct, analysisalooks to 
homogenous precincts in which almost all of the people of voting 
age belong to one ethnic group. If race/ethnicity reflects voting 
behavior, then election results in predominately minority precincts 
should differ from results in predominately Anglo precincts. .

•j ^The majority which agreed with Justice Brennan that voter 
dilution was demonstrated by the'impact or results of the Zimmer 
factors and the Gingles threshold analysis deserted him when he 
came to the proof of the second and third Gingles factors. -'..

8



The data used by Plaintiffs to support their statistical 
analysis varied according to the type of information available to 
them since the 1980 Census. Plaintiffs used voting age population 
data by census tract to establish the Ginales 1 factor of size and 
geographic compactness. Plaintiffs used a variety of data sets to 
establish the Singles 2 cohesiveness and Ginales 3 white-bloc 
voting factors depending on information available in the County in 
question. __

In Counties where Plaintiffs presented a case on behalf of 
Hispanics ’• only, they 'relied on ~the percentage of Hispanic

• Justice White maintained that under Justice-Brennan's test 
there is racially polarized voting whenever a majority of whites 
vote differently from a majority of blacks, regardless of the race 
of the candidates. Ginqles. supra, at 83. To illustrate his 
disagreement, Justice White posited the hypothetical which assumed 
an eight-member multimember district that was 60% white and 40% 
black, the blacks being geographically located so that two safe 
black single-member districts could be drawn. Justice White 
further assumed that there were six white and two black Democrats 
running against six white and two black Republicans. Justice White 
wrote, "[u ]nder Justice Brennan's test, there would be polarized 
voting and a likely § 2 violation if all the Republicans, including 
the two;: blacks, are elected, and 80% of the blacks in -the 
predominately black areas vote Democratic." Id. at 83. Justice 
White concluded that such analysis was "interest—group politics 
rather that a rule hedging against racial discrimination." Id. at 83.

Justice O'Connor and the three other Justices for whom she 
wrote did not reject bivariate regression analysis solely to 
establish political cohesiveness and assess the minority groups 
prospects for electoral success. , Id. at 100. However, Justice 
0 Connor did reject Justice Brennan's position that evidence that 
explains divergent racial voting patterns is irrelevant.

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registered voters in voting precincts in any given year. These 
figures were based on Spanish surname counts done by the Secretary 
of State of Texas. In other instances, Plaintiffs used counts of 
Black and Hispanic total or voting age population in each.precinct 
of a particular county.- When counts were not available, Plaintiffs 
based their analysis on 1980 census information. In some counties, 
precincts retained the same boundaries reported in the 1980 census. 
1980 census data, from precincts with unchanged boundaries were used 
in those counties. In several counties, Plaintiffs reconfigured 
precinct lines8 and used demographic data from these newly created- 
precincts. When relying on census data, Plaintiffs calculated the 
number-of non^minorities ̂ within precincts by subtracting the number 
of Hispanics and Blacks from the total number of persons within the 
precinct. -

Plaintiffs' experts only reviewed elections where a minority 
candidate-opposed an Anglo.£ They preferred to analyze general 
elections, however primary elections were analyzed when no minority 
candidate made it past that stage of the electoral process.

The Supreme Court in Thornburg v. Ginoles. supra, requires

This process requires comparing new precinct maps with 
their new lines and census block maps that show racial composition 
of the blocks. This process is frequently used to update precinct data.

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the analysis of several elections to determine if there is a 
pattern of voting related to race/ethnicity. In the present case, 
when there were District Court elections in a county in question 
in which a minority opposed an Anglo, Plaintiffs relied solely on- 
analysis of District Court elections. In some Counties this 
included both general and primary elections. Where there were not 
enough such District Court elections other elections were analyzed. 
First, County Court elections in which minorities opposed Anglos 
were selected. Next, Plaintiffs turned to Justice of the Peace 
elections where the election district was at least as large as a 
city within the county at -issue. Finally, if no relevant local 
judicial races occurred, Plaintiffs analyzed statewide judicial 
elections. See Testimony of Dr. Robert Brischetto.

All jurisdictional:;_ prerequisites necessary to the 
maintenance of the claims'of the parties have been fulfilled.
After reviewing the testimony'and exhibits introduced at rtrial, as- 
well as the arguments and authorities of counsel, the Court hereby 
enters the following Findings of Fact and Conclusions of Law 
pursuant to Federal Rule of Civil Procedure 52. ....

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FINDINGS OF FACT
INDIVIDUAL PLAINTIFFS

1. The names and counties of residence-of the ten (10)
named individual Plaintiffs are as follows: (a) Christina Moreno - 
Midland; (b) Aquilla Watson - Midland; (cj Joan Ervin - Lubbock; 
(d) Matthew W. Plummer, Sr. - Harris; (e) Jim Conley - Bexar; (f) 
Volma Overton - Travis; (g) Gene Collins - Ector; (h) Al Price - 
Jefferson; - (.i) Mary -Ellen Hicks - Tarrant; and (j) Rev. James 
Thomas - Galveston. Each named Plaintiff is a citizen of the 
United States registered end -qualified to vote in District Court 
elections in Texas.-Except for Christina Moreno, who is Hispanic, 
each named Plaintiff Black. j • . 't,.: ''

ORGANIZATIONAL PLAINTIFFS
2. Plaintiffs LULAC #4434 and LULAC #4451 are local 

chapters of the larger Statewide LULAC organization. J Members of 
the LULAC Statewide organization reside in all of the counties 
challenged in this suit. Depo. of John Garcia. The organization 
is composed of both Mexican-American and Black residents of the 
State of Texas. The members of LULAC #4434 reside in Midland 
County. The members of LULAC #4451 reside in Ector County.

3. - i - Plaintif f-Intervenor the Houston Lawyers Association

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("HLA"), is an association of Black lawyers in Harris County. The 
participation of Plaintiff-Intervenor the Texas Black Legislative 
Caucus ("TBLC") is limited to the remedy stage of this litigation.

DEFENDANTS & DEFENDANT-INTERVENQRS
4. Defendants are sued in their official capacities only* 

Defendant' Jim Mattox is the Attorney General of the 
State of Texas and charged with the responsibility of enforcing the 
laws of the State. /

Defendant George Bayoud is.-Secretary of-State of Texas. 
As such he functions- as chief elections officer charged with 
administering the election Jaws of the State. Secretary Bayoud'is 
substituted as a party in this litigation for former Secretary of 
State Jack Rains. oC 2 . ' . . ) ^  l ... :

Defendants Thomas R. Phillips, Michael J. McCormick, Ron 
Chapman, Thomas J. Stovall, James Fr Clawson, Jr., Joe E. Kelly,: 
Robert M. Blackmon, Sam M. Paxson, Weldon Kirk, Jeff Walker, Ray 
D. Anderson, Leonard Davis and Joe Spurlock, II are members of the 
Judicial Districts Board9 created by Art. V Section 7a of the Texas

Several members of the Judicial Districts Board- were 
replaced by new members during the interim of this litigation. 
Michael J. McCormick replaced John F. Onion, Robert M. Blackman^ 
replaced Joe B. Evans and Jeff Walker replaced Charles Murray.

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Constitution and Art. 24.911 et seq. of the Texas Government Code.
The Judicial Districts Board is charged with reapportioning 
districts from which District Court Judges are elected. . .. .

----- Sitting- District Court Judge Sharolyn Wood, 127th
District Court, Harris County and Judge Harold Entz, Jr., 194th =
District Court, Dallas County Intervened in their individual 
capacities as Defendants.10 ' ;

GINGLES THRESHOLD ANALYSIS 
Size and Geographic Compactness 

• "5* Harris County. - Harris County has the largest 
population among the nine target Counties in this case. Plaintiffs 1 
are proceeding only on behalf of Black voters in Harris - County. ror 
With a total population of 2,409,544,11 its Black population i s 1 01. 
473,698 (19.7%). There are 1,685,024 people of voting age,12 with .--'In 
305,986 (18.2%) voting age Black residents of Harris County.

10 Thirteen District Court Judges from Travis County initially - ■ y
intervened as Defendants. The Court struck their intervention at their request. • •.•••

11 In each County, Plaintiffs rely upon the 1980 Census for 
total population of Blacks and Hispanics within the County.

For all Counties in this case, Plaintiffs relied on a - -.1- 
computer print out of voting age populations prepared by the Data ^-ir: 
Center at Texas A&M University _ directly from 1980 U.S. Census~ m e  tapes ~ : : • ; T ; 1 h • • •

14



-- There are fifty nine (59) State District Courts in 
Harris County. Black residents are concentrated in the North 
Central, Central and South Central .sections of Harris County. H- 
04, p.> 2, Map, of Proposed Districts.13 Evidence was introduced 
that nine (9) Black single member districts of greater than fifty 
percent (50%) Black voting age population were possible. Id. at 
1; Plaintiff-Intervenor Harris. County ( "P-I.-f H") Exhibits 2, :2a.

6. Dallas County. Dallas County is the second largest 
County involved in this case. -Plaintiffs are proceeding only on 
behalf of Black voters in Dallas County. Dallas County has a total 
population of 1,556,549. Its Black population is 287,613 (18.5%).. 
There are 1,106,757 people of voting age, with 180,294 (16%) voting 
age Black-residents . Plaintif f s ' DDallSs Ccfiinty ("D",). Exhibit 017- 

There were thirty six /(36) State District Courtsmin

Plaintiffs' Harris County ("H") Exhibit 01.

13 Plaintiffs drew districts in each County of approximately 
equal size based on the number of District Courts in the County. 
Plaintiffs calculated the size and number of precincts in each 
proposed district on the basis of both total population and voting 
age population. This Court recognizes that the concept of "one man 
one vote" does not apply to the judicial elections. Chisom I . 
supra, at 1061. Accordingly, this Court's analysis rests upon 
Plaintiffs' calculation based upon voting age population. 
Plaintiffs drew each district on this basis under the assumption 
that each district should contain l/m of the voting age population 
in the County,-with n being the number of District Courts in the 
County. ‘ -Plaintiffs' Post Trial Brief at 11.

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Dallas County at the time this case was filed. On September 1, 
1989, the Texas Legislature created a thirty-seventh State Judicial 
District-Court in Dallas County. Black residents are concentrated 
in the Central and South Central sections of Dallas County. D-04, 
p. 2, Map of Proposed Districts based on 3̂6 District Courts_ 
Evidence was introduced that seven (7) Black single member 
districts 'of greater than fifty percent (50%) Black" voting age 
population were possible. Id. at 1, 3-9;14 Plaintiff-Intervenor 
Dallas ("P-I D") Exhibits 34. Plaintiff-Intervenors' Exhibit 7 
reflects that there are approximately 36 homogeneous precincts of 
90% Black population. __  ___  . _ . _ ___i-.-t ___  .

7 Tarrant County. Plaintiffs are proceeding-only on 
behalfr of Black voters in Tarrant County. Tarrant County has a 
total ^population of 860,880>  ̂The rBlack population-of "Tarrant 
County is 101,183 (11.8%). There are 613,698 people of voting age, 
with 63,851 -(10.4%) voting age'Black residents of Tarrant County. 
Plaintiffs' Tarrant County ("Ta") Exhibit 01. .*

There are twenty three (23) State District Courts in 
Tarrant County. Black residents are concentrated in the Center of

Proposed single member districts 1 & 3 barely meet the 
Overton majority - minority voting age population requirement. 
These proposed districts contain 51.33% and 52.05% black voting age 
population respectively.

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Evidencethe County. Ta-04, p. 2, Map of Proposed Districts, 
was introduced that two (2) Black single member districts of 
greater than fifty percent (50%) Black voting age population were 
possible. Id. at 1_., , :=;• i.'V' ' :: 1-h= -,-.vr

8. Jexar County. Plaintiffs are proceeding only on behalf 
of Hispanic voters in Bexar County. _ ;.Bexar County - has a .total 
population of 988,800. Its Hispanic population is 460,911 
(46.61%). There are 672,220 people iof vating1-age with 278,577 
(41.1%) voting age Hispanic residents of Bexar County.e- 
Plaintiffs' Bexar County~("B") Exhibit 01. --

There are nineteen (19) State District Courts in Bexar 
County. Hispanic residents are concentrated in the Central and 
South Central sections of the County comprising most of the 
population! of the City of San Antonio. B-04, p.-2, Map of 
Proposed Districts. Evidence, was introduced ithat eight (8}r
Hispanic single member districtsvof greater than .fifty percent
(50%) Black voting age population were possible. Id. at 1.

9. Travis County. Plaintiffs are proceeding only on 
behalf of Hispanic voters in Travis County. With a total 
population of 419,335, its Hispanic population is 72,271 (17.2%). 
There are 312,392 people of voting age with 44,847 (14.4%) voting 
age Hispanic residents of Travis County. Plaintiffs' Travis

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There are thirteen (13) State District Courts in Travis. 
County. The largest concentration of Hispanic residents in one 
area, if at all, appears to be located in the Eastern portion of 
the County. Tr-04, p. .2; Tr-05, p.l, Map of Proposed Districts. 
Mr. David Richards testified that in his opinion the Hispanic 
community was pretty ~ - well ~ dispersed in “'Travis County. 
Nevertheless, evidence! was _ introduced that one (1) !combined 
minority single member district of greater than fifty’percent (50%) 
Hispanic voting age population was possible. Id. at 1. 
Plaintiffs! Exhibit Tr-04 depicts the single member -. Hispanic 
district proposed for Travis County, v The Court finds that"it is 
without moment that the proposed district appears to be minimally 
contiguous. ■ ' .• Courts i r . i

10. Jefferson County. Plaintiffs are proceeding only on 
behalf of Black voters in Jefferson County. cJefferson County has 
a total population of 250,938. Its Black population is 70,810 
(28.2%). There are 179,708 people of voting age of. which there are 
44,283 (24.6%) voting age Black residents of Jefferson County. 
Plaintiffs' Jefferson County ("J") Exhibit 01.

There are eight (8) State District Courts in Jefferson 
County-r Black residents are concentrated in the Central and South

County ("Tr") Exhibit 01.

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Eastern portions of Jefferson County. J-04, p. 2, Map of Proposed 
Districts. ''Evidence was'^introduced that two (2) Black single 
member districts of greater than fifty percent (50%) Black voting 
age population were possible. Id. at 1 ’ - J ’- « —

11. Lubbock County. Plaintiffs are proceeding on behalf • n>.
of the combined Black and Hispanic voters in LLubbock County. .There ...
is a total population of 211,651 in Lubbock County. The Black ^  _. 
population of Lubbock County is;15,780 (7-5%), while the Hispanic 
population is 41,428 (19.6%). There are-150,714 people of voting ; 
age, with 9,590 (6.4%) voting age Black residents and 22,934 ;
(15.2%) voting age Hispanic residents. The combined minority 
votings age : population is 32,524 (21.6%). Plaintiffs' Lubbock'■ ;:al r
County ("L") Exhibit 01. : * ; ( ,

There are six (6) State District Courts in the Lubbock----.. - 
Crosby County area. The combined minority population is non - 

concentrated in thes.North Eastern, Eastern and South Eastern Lons 
sections of those Counties. L-04, p. 2, Map of Proposed Districts. 
Evidence was introduced that one (1) combined minority single 
member district of greater than fifty percent (50%) Black voting 
age population was possible. Id. at 1. This remains true when 
Plaintiffs controlled for voting age population of non-United Vs 
States citizens of Spanish origin. Plaintiffs' Exhibit L-ll. •• -V

19



12. Ector County. Plaintiffs are proceeding on behalf of
combined Black and Hispanic voters in Ector County.... The total 
population of Ector County is 115,374. Its Black population is 
5,154 (4.5%) and the Hispanic population is 24,831 (21.5%). There. 
are 79,516 people of voting age. The voting age population by 
minorities consists of 3,255 (4.1%) Black voters and 14,147 (17.8%) 
Hispanic voters for a combined minority voting age population of 
17,402 (21.9%). Plaintiffs' Ector County ("E") Exhibit 01.

■"7There are four (4) State District Courts in Ector 
County.' Minority residents are "concentrated in the Southwest 
section of the County. E-04, p. 2, Map of Proposed Districts. 
Evidence -was introduced that-one (1) combined minority single 
member district of greater than fifty percent (50%) minority voting 
age population was possible. Id. at 1. It is possible to draw a 
district of combined minority population of voting age even if non­
citizen voting age HiSpanics are eliminated -from .the calculations. 
Plaintiffs' Exhibit E-13. •_ - ,

13.: Midland County. Plaintiffs proceed on behalf of Black 
and Hispanic voters combined in Midland County. Midland County has 
a total population of 82,636. Its Black population is 7,119 (8.6%) 
and its Hispanic population is 12,323.(14.9%). There are 57,789

r hr >—  v* r f
people of.voting age,.-4,484 (7.8%) voting age Black voters and

20



6,893 (11.9%) voting age Hispanic voters. The combined voting age 
population is 11,377 (19.7%).  ̂Plaintiffs' Midland County ("M")' 
Exhibit 01. ------ —  -

There are three (3) State District Courts "in Midland 
County. Black residents ~are concentrated largely in the 
Northeastern, East Central and Southeastern sections of Midland 
County. M-04, p. 2, Map of Proposed Districts. Evidence was 
introduced^that one (1) combined minority single member district 
of greater than fifty percent (50%) combined voting age population 
was possible. Id. at 1. It'is possible to draw a district in 
which the combined minority population is in the majority even if 
non-citizen Hrspanics of 'voting age are excluded. Plaintiffs' 
Exhibit M-15.

Political Cohesion and White Bloc Voting
14. Racially polar-ized voting indicates that the group 

prefers candidates of a particular race.15 ‘Monroe v. City of' 
Woodyille, No.' 88-4433, slip op. at 5573, (5th Cir. Aug. 30, 1989).

The Supreme Court in Ginqles adopted the definition of 
racial polarization offered by Dr. Bernard Grofman, appellees' 
expert.-Dr. Grofman explained that racial polarization "'exists 
where there is a consistent relationship between [the] race of the 
voter and the way in which the voter votes' ... or to put it 
differently, where 'black voters and white voters vote 
differently.'" Ginqles. 478 U.S. at 53 n. 21.

21



Political cohesion, on the other hand, implies that the group 
generally .unites behind a single political "platform" of common 
goals and common means by which to achieve them. Id.at 5573.

The inquiry into political cohesiveness is not. to be 
made prior to and apart from a study of polarized voting. The 
Supreme Court made clear that "[t]he purpose of inquiring into the 
existence of racially polarized voting is twofold: to ascertain
whether minority group members constitute a politically cohesive 
unit and to determine whether whites vote sufficiently as a bloc 
usually to defeat the minority's preferred candidates." Gingles,:. 
478 U.S. at 56.

15. Plaintiffs presented testimony of two experts. - Dr. 
Richard Engstrom ("Dr. Engstrom") testified only about Harris and
Dallas j.Counties. Dr. Robert r.Brischetto ("Dr. Brischetto")

t. '* r.-. T O - ’ T i m o r . V  O t  D r  . F T 1- s >« r’ .V OU! j  i; . i r
testified concerning all other counties at issue in this case.:

16. Harris County.
a. Dr. Richard Engstrom testified on behalf of Plaintiffs 

and Plaintiff-Intervenors in Harris C o u n t y D r .  Engstrom used 1980 
U.S. Census counts of total Black population by precinct to analyze 
1980 election results. For .1982, 1984, 1986 and 1988, Dr. Engstrom 
used precinct voter registration estimates supplied by Dr. Richard 
Murray, a non-testifying expert. K.Plaintiffs' Exhibit P-I H-08ri-

22



Dr. Engstrom verified or "matched" the reliability of Dr. Murray's 
estimates and the 1980 Census counts by comparing Dr. Murray's 
estimates to an Hispanic precinct voter registration list compiled 
by the Secretary of State; Testimony of Dr. Richard Engstrom. 
Dr. Engstrom testified that there was "a very good: match.",

b..̂ . Dr-Engstrom analyzed,17 _ general elections in Harris 
County. He calculated "r". values16 between 0.798 and 0.880 for the 
17 elections analyzed.17 tPlaintiffs' Exhibit P-I H-01 pp. 1-2.
Dr. Engstrom's regression analysis shows a strong relationship 
between race and voting patterns in Harris County. See Appendix. 
A to this opinion ("Appendix"), Plaintiffs' Exhibit P-I H-01 pp. 
1-2. All of his correlation coefficients18 exceed .79 (79%) except;

16 The "r" value describes the relationship between the racial 
composition of a precinct and ..the number of votes a particular 
candidate receives. Testimony of Dr. Engstrom. To put it another 
way, "how consistently a vote for Black candidate changes as the 
racial composition of the precinct changes." Id.

"Crucial to the validity of regression analysis are .the 
values for 'r' and 'r[squared]' , which measure the strength of the 
correlation and linear relationship of the variables being 
examined, in this case the race of the voter and the candidate he 
supports." Overton, 871 F.2d at 539.

The "r" value is also referred to as the "correlation 
coefficient" or "Pearson r." A positive Pearson r shows that as 
the percentage of minorities in a precinct increases, so does the 
support that a minority candidate receives. A Pearson r of -1 
shows the opposite, as the percentage of minorities in a precinct 
increases, cthere is decrease in the support that a minority 
candidate receives. A Pearson r of 0 shows that there is no

23



one. Id.., see section on Bivariate Regression under the column 
heading of Correlation Coefficient. Dr. Robert Brischetto
generally testified with regard to the counties in issue other than 
Dallas and Harris County, that a ..Pearson r of 1 (100%) would show 
perfect correlation. He further testified that social scientists - 
consider anything over 0.50 (50%) as showing a strong correlation.

c. Further, each Pearson r is accompanied by an estimate 
of the likelihood that the estimate would occur by chance. This 
figure is known as the significance level. In the regression 
analyses for Harris County, as well as all the counties in issue, 
the significance level was much smaller than the generally accepted 
level of extremely high significance of . 05.19 Testimony of Dr. 
Robert Brischetto; Testimony of Dr. Richard Engstrom. Dr. Engstrom 
testified that the probability that the Harris County estimates-- 
would have occurred by chance were less than 1 out of 10,000.

H d. The lowest squared for these analyses is “
approximately .62 (62%). This describes the percentage of the
variance in voting behavior explained by race/ethnicity. Testimony

relationship between the racial/ethnic composition of precincts and 
voting behavior. 1 , • . •

19 A -significance level of -.01, for example, ;means that the 
Pearson r in question would have occurred by chance only one time 
out of .one hundred. Cvcx ■ : -  -j. " G r

24



of Dr. Robert Brischetto.20 Squaring these "r" values21 to
calculate coefficients of determination demonstrates in the present 
case that race explains at least 62% of the variance in voting in 
all 17-elections relied on by Plaintiffs and Plaintif f-Intervenors.._ 

m e .  t= The one judicial race that did not exceed the 79% 
figure actually had a negative correlation. This race involved 
Mamie Proctor, a Black candidate running on a Republican ticket 
against Henry Schuble, an Anglo, for State Family Court 245. In 
the 1986 Proctor race, the correlation coefficient was -0.836 
(approx. -84%). Id. at 1; Plaintiffs' Exhibit P-I H-10 p. 2. ..This 
reflects that, as the percentage of Blacks in voting precincts 
increases, 'Proctor*s support decreased. In other words, even 
though Ms. Proctor is Black, she did not receive the support of the 
Black community. Hence, she was not the preferred, .candidate of ; 
Black voters in Harris County. Dr. Engstrom testified on cross 
examination tJhat the "candidate of choice" .was the-candidate who

For example, if a Pearson r is .5, then 25% (5 x 5 or r 
squared) of the variance in voting behavior is explained by 
race/ethnicity.

This figure is also known as the coefficient of 
determination. It is the coefficient of correlation or Pearson r 
multiplied by itself. It shows how much or little "noise" there 
is around the line ofT correlation or, in other words, "the 
percentage of variance in the vote that is explained by the race 
of the voters." Overton, 871 F.2d at 539 n. 11.

25



received the majority of the black vote, not necessarily the Black 
candidate. - - : • - -

f. When Dr. Engstrom controlled for Hispanic votes, Dr.
Engstrom's regression analysis shows that Blacks consistently gave — 
more than 97% of their vote to their preferred candidate. Id., see r 
last two columns. - , .J

g. Dr. Engstrom's homogenous precinct analysis
corroborates the results of his regression analysis .t> See Appendix ; 
A, Plaintiffs' Exhibit P-I H-01 pp. 1-2. It shows that Black 
voters in Harris County gave more than 96% of their votes to the 
preferred candidate of Black voters in every election except 
Proctor's . : Ms . Proctor received 5% of the Black vote. ~

' - h . ~ Finally, in all counties including Harris County, 
Plaintiffs "weighted"1 precinct data in f order 'to account for 
variations in the population size of the various precincts. 
Testimony of Dr. Richard Engstrom; O v e r t o n rsupra, at 537. Dr. 1- 
Engstrom testified that on the basis of his analysis the Blackc 
community in Harris County votes cohesively in-general elections 
for State District Court Judges. i. Harris County
Defendant-Intervenor Judge Sharolyn Wood-("Judge Wood"), attacks:-^- 
Plaintiffs and Plaintiff-Intervenor's proof on the following’: 
grounds: (1) Dr. Engstrom failed to establish the reliability of

26



his data set; (2) absentee votes were not allocated to election 
returns; (3) the analysis does not reflect the effect of the influx 
of the Vietnamese population into Harris County and traditionally 
Black -precincts; and {4) the .analysis fails to reflect black 
candidate successes in primary elections or uncontested races.-- -■

j. In reference to the reliability of the data set, Judge 
Wood points to numbers on Dr. Murray's printouts that have been 
written over.,: struck out or crossed through, pencil notations and 
other marks. This Court finds the data set to be reliable.

k. - ..In response to the other concerns, Dr. Engstrom 
testified that: (1) primary elections were not examined in Harris 
County because those elections were not filtering out the candidate 
of choice of Black voters; (2) uncontested races do not assist 
researchers in their analysis; (3) the appropriate comparison in 
Voting Rights cases is Black and non-Black; (4) while :he did not 
specifically control for Asian Americans, they would be included 
in the percentage of non-Black votes; and (5) the range of absentee 
votes between 1980 and 1986 never exceeded 2.2% to 7.6%, while in 
1988 that range rose to approximately 13.6% per precinct. This 
Court finds that Dr. Engstrom's testimony adequately addresses 
these concerns. The Court further finds that the lack of control 
for absentee votes and Asian Americans does not significantly

27



affect Dr. Engstronr's analysis.
-1. The State Defendants and Defendant-Intervenors argue 

that it is a candidate's political party and the strength of 
straight ticket party voting that determines ~the result of any 
election contest and not the difference between the preferred 
candidates of whites and minorities. In support.of -this argument, 
Defendants and Defendant-Intervenors point to the.1982 and 1986 
Democratic sweep for judicial candidates in- Harris County and a 
similar Republican sweep in the years 1984 and 1988. n All 
Defendants attribute this phenomenon to top of the ticket straight 
party voting.22

m. Correlation and regression can also prove the third 
Ginqles prong by showing that a white bloc vote exis-ts. This is 
shown when the percentage of ■ votes received by .'the minority 
candidate decreases as the percentage of minority persons of voting 
age decreases . In other twords, the minority candidate^receives 
fewer votes as the percentage of non-minority persons in a precinct 
increases.; Regression results estimate the percentage of non­
minority support for minority candidates, otherwise known as the

In 1982, Senator Lloyd Bentsen was the lead Democratic 
candidate on the ballot. In 1986, Governor Mark White represented 
the top of the ticket Democratic candidate. In Presidential 
election years 1984 and 1988, President Ronald Reagan and President 
George Bush, respectively, were the top Republican candidates.

28



Anglo cross over vote. Plaintiffs' Exhibit P-I H-01 pp. 1-2, 
column 4. This is also referred to as the Y intercept. . .. ..

n. Dr. Engstrom calculated Y intercepts for the Black 
preferred candidate between 29 and 39 percent for the 17 elections 
analyzed. The highest Y intercept was 33.6%, but this percentage 
of the non-Black vote was for the non-preferred candidate Mamie 
Proctor. The highest percentage of Anglo cross over votes 
received by the preferred candidate of Black voters was 39 percent. 
See 1986 race Carl Walker, Jr., Black Democrat against George 
Godwin; Id. This is corroborated by a 40% Anglo cross over vote 
figure calculated for the same race in homogenous precincts of 90% 
or more non-Black population. Td. at column 1. Mr. Walker was 
the Black preferred candidate and won. > Plaintiffs' Exhibit P-I H
10. Two other Black preferred-candidates-drawing opposition .inJthe 
1986 elections lost their elections even though they had identical 
Black community support; These two candidates had slightly?.less; 
Anglo cross over vote. Plaintiffs' Exhibit P-I H-01 pp* J.-2, 
column 1. Five other Black preferred candidates drawing opposition 
in what appears to be county-wide elections lost in t h e -1986 
elections. -= Plaintiffs' Exhibit P-I H-10.23 This ianalysis

j These candidates are: Bonnie Fitch, Raymond Fisher,
Francis Williams, Sheila Jackson Lee, and Cheryl Irvin-ar.

29



demonstrates that an Anglo bloc vote exists. Dr. Engstrom 
testified that the Anglo or white bloc vote in Harris County is 
sufficiently strong to generally defeat the choice of the Black 
community-.-*- This Court a g r e e s -? •- r :•1 r- ,-.

o. Plaintiff-Intervenor Sheila Jackson Lee also testified
about political cohesiveness among Black voters in .Harris County. 
Ms. Lee has lived in Harris County approximately 11 years and has 
been a candidate in several- judicial^ e l e c t i o n s P l a i n t i f f s '  
Exhibit P-I H-01 pp. 1-2; Exhibit P-I H-10 pp. 1-3. She had many 
different endorsements and campaign strategies but still lost. 
She testified that her loss was attributable to not getting enough 
white votes. f •. v 1^3 ^Urv.. ]•••••'••• : • • • - r. i.V J . \

p. This testimony was supported by the deposition
summaries of Thomas Routt,! Weldon Berry, Francis -Williams and 
Bonnie Fitch. _,ul' v r.-

q. Defendant-Intervenor Wood presented the testimony^of 
Judge Mark Davidson. As a hobby, Judge Davidson analyzes the 
results of judicial elections in Harris County. His testimony 
concerned his views on what he has termed "discretionary judicial 
voters" ("DJV").24 Judge Davidson testified that 15% of the vote

He defines DJV's as voters who vote for at least one 
judicial candidate of one party and at least one of the other 
party. DJV's are also referred to as "swing" voters.

30



in judicial elections in Harris County were DJV's. The remaining 
85% split roughly evenly between straight . Democrat party and: 
straight Republican party voting. Based upon his analysis, Judge 
Davidson believes that race and ethnicity are irrelevant_to voting., 
behavior as it relates to. ;the .judiciary in Harris County. : Hew 
opines that DJV's determine the outcome of judicial contests in 
Harris County and the DJV vote can somewhat be garnered by various 
campaign factors. While this Court finds Judge Davidson to be a 
credible witness, under controlling law, the Court finds that his 
testimony is irrelevant. _

r. The Court further finds Defendant-Intervenor Wood's 
contention that -the Black preferred candidate lost their respective 
judicial races due to their failure to win the Harris County bar 
or preference poll orito" obtain the Gay Political Caucus ("GPC"), 
endorsement to be legally incompetent.

s. The complete data set used by Dr. Engstrom was used by 
Defendant's expert, Dr. Delbert Taebel for his analysis of Harris 
County. Dr. Taebel did not weight his precinct data to.account for 
variations in population size of various precincts in Harris County 
or any other county at issue.

t. Dr. Taebel analyzed 23 District Court general elections 
where minorities opposed white candidates -in Harris C o u n t y S t a t e '

31



Defendants' Exhibit D-05 pp. 9, 13, 29, 33, 37, 41, 45, 53, 61, 81, 
85, 89, 93, 97, 101, 105, 137, 141, 145, 161, 165, 173 & 177.-
Black and white voters voted differently in all 23 District Court 
elections. Id. The Blackr preferred candidate won"only six'(6)" 
times." The Black preferred candidate won seven (7) of 11 County 
Court general elections. Id. D-05-pp. -lr 5, 17^-21, 25, 109, 113,- 
117, 121, 175 & 129. Blacks and whites voted differently in each 
of those elections . Id.a mDr. * -Taebel i also analyzed >nine r ( 9 ) h  

judicial primary elections; seven (7) for District Court posts and 
two (2)-County Court posts. Id. D-05 pp. 49, 57, 65, 73, 77, 145 
157, 169 & 181. The Black preferred candidate won six (6) of the 
nine (9) primaries. Interestingly enough, each preferred candidate 
winning the primary lost the general election. Id. D-05 pp. 61, 
69, 81, 153,: 161, & 17 3 . ~ v;-.v • v — -i-i

17. Dallas County.: - ~ >'  ̂qu ~ • m - -
a. Dr. Engstrora used the same data set for his analysis 

of Dallas County. However, the 1980 Census counts were updated in 
1982 and 1988 by the Dallas County Elections Office by
reconfiguring precincts according to the changes made in precinct 
lines. Testimony of Dr. Richard Engstrom. Dr. Engstrom accepted 
the updated census counts for 1982 and 1988 as reliable. Id. In

32



the intervening years of 1984 and 1986, Dr. Engstrom looked for 
precincts that combined or split and aggravated precinct counts 
for those precincts. Id. ' ••• ■ . .

b. Dr. Engstrom analyzed seven (7) general elections_for 
State District Court where Blacks opposed Anglos between 1980 and. 
1988 in Dallas County. The correlation coefficient or "rM values 
exceed 0.864 (86%) for six ̂ 6) of the seven (7) elections analyzed. 
See Appendix A, Plaintiffs' Exhibit D-02. Dr. Engstrom's
homogenous precinct analysis and regression analysis shows a strong 
relationship between race and voting patterns in Dallas County. 
Id., see columns 2 & 3. Dr. -Engstrom -testified that the-
significance -level was much smaller than the generally-accepted 
level of extremely khigh significance of .05 and that the 
probability bhat the Dallas County estimates would have occurred 
by chance were less than 1 out of 10,000.

c; I- The lowest’K r L squared cbor - these analyses is 
approximately .75 (75%). This figure is found from multiplying the 
r value by itself for Jesse Oliver's judicial race in 1988. This 
coefficient of determination demonstrates that race explains at 
least 75% of the variance in voting in at least six (6) of the 
seven (7) elections relied on by Plaintiffs and Plaintiff- 
Intervenors. - —  -

33



d. Plaintiffs' Exhibit D-02 further shows that in five (5) 
of the seven (7) elections as the percentage of Blacks increased 
in precincts, so did Black support for the preferred candidate of 
Black voters;■>> See Homogeneous precinct analysis, column 2;-~ rrr~-

e . r■ Bivariate regression analysis reflects a negative 
correlation for Carolyn Wright's.-, .judicial .race in .1986.. Judge 
Wright is a Black who ran on the Republican ticket. She received 
-1.5% of .r the Black vote <i.and 71-.7% gof ̂ the non-Black vote. 
Plaintiffs' Exhibit D-02, columns 4< & 5. The correlation 
coefficient was -0.872 (-87%). -Id^ column 3. This reflects 
that, as the percentage of Blacks in voting precincts increases, 
Judge Wright's support decreased::: in other words, even though Ms. 
Wright is Black, she did„not receive the support of the Black 
communityg Hence, she was not .the preferred candidate of JBlack 
voters in Dallas County. Black voters also failed to support 
Judge Baraka, a Black Republican candidate in 1984.

f. When Dr. Engstrom controlled for Hispanic votes, Dr. 
Engstrom's regression analysis shows that Blacks consistently gave 
more than.97% of their vote to their preferred candidate. Id., see 
last two columns. Dr. Engstrom's analyses shows that Blacks are 
politically cohesive in general elections for State District Court 
in Dallas County. - • • ; : -

34



g. His analysis is confirmed'by the testimony of 
Plaintiff-Intervenors' Joan Winn White, Fred Tinsely, H. Ron White 
and Jesse Oliver. The Exhibits ^reflect that each Plaintiff- 
Intervenor received 97% or better of the Black, homogenous precincts 
and at least 83% of the votes in precincts with Black population 
of 50% to 90%. "Plaintiffs Exhibit P-I D-16 - D-22a.

h. Plaintiffs calculated the percentage of votes for-the 
Black preferred candidate, Jesse Oliver, and his white opponent'. 
Brown, in each of the proposed hypothetical single member 
districts. Plaintiffs' Exhibit D-12a. They .repeated this 
procedure.-for^ the judicial races involving the Black preferred 
candidates in Plaintiffs' Exhibit D-t)2 and Nathan Brin (an Anglo 
preferred by Black voters in Dallas County). Plaintiffs' Exhibits 
D-12b,i 12c & 12d. ■ In each , instance,an the Black t. community's 
preferredl* candidate received a r majorityr of votes a in each 
predominately Black hypothetical districts i, > :■

i. Defendant-Intervenor Judge Harold Entz ("Judge Entz"), 
attacks Plaintiffs and Plaintiff-Intervenors evidence on the ground 
that: (1) the data is based on total population and not voting age 
registered voters; (2) the analysis does not reflect changes in the 
distribution of population over time as a result of growth of 
Dallas suburbs and geographic dispersal of minorities; (3) Dr.

35



Engstrom did not control for absentee or Oriental votes; (4) there 
is a stronger association between partisan affiliation and success 
then there is between race and success; and (5) the analysis shows 
what happened, but not why it happened.“ In support of fiis fourth 
attack, Judge Entz argues that five of the seven elections analyzed _ 
involved Black candidates who are the candidate of choice, while 
all seven involved Democratic candidates who were the Black 
preferred candidate of choice. Thus, Judge Entz concludes that 
political party is a; better predictor of the Black preferred 
candidate and that candidate is a victim of partisan politics not 
discriminatory vote dilution.

'^ j . Dr. Engstrom testified-that: (1) he was never given-
precinct data by race and voting age registered voters; and (2) the 
range of support for the Democrat.candidates between 1980 and 1986 
varied 10 to 17 percentage points. Thus, Dr Engstrom concluded 
that something other than just straight party voting is going on 
in judicial elections. i'-. 1

k. Dr. Dan Wiser's testimony confirms Dr. Engstrom's 
results. Dr. Wiser's data set was based on 1980 Census data, 
Dallas County election returns and Dallas County precinct data 
adjusted for changes in precincts. Precincts that split were 
reconstructed by estimating the part of the precinct that shifted

36



to another and apportioning the registered vote based on the shift 
and past history. Testimony of Dr. Dan Wiser. The adjusted data 
was checked against the 1986 Justice Department submissions, id. 
Plaintiffs' Exhibit P-I D-H. Ninety eight percent (98%) of the 
vote in homogeneous precincts of 90% Black voters went to the Black 
preferred candidate. Plaintiffs' Exhibit P-I D-ll, D-16 through 
D-23a. At least 83% of the Black community vote supported the 
Black preferred candidate in homogenous precincts of between 50% 
and 90% Black. Id. ‘ ' t c

"1. Dr. Wiser calculates that the Asian community only 
comprised approximately 2^6% of the total Dallas County population 
as of 1985. Plaintiffs',Exhibit P-I D-03. He testified that the 
best estimate of the growth of the Asian community between 1985 and 
the present is supplied by the Bureau of Census. Plaintiffs' 
Exhibit P-I D-02. He believes there has only been a growth of 
approximately 3% between 1985 and 1988 and does not agree with 
estimates of Asian leaders in Dallas County.

m.-.; Plaintiffs and Plaintiff-Intervenors established the 
third Ginqles prong by showing that a white bloc vote exists. The 
Y intercepts-calculated by Dr. Engstrom for the Black preferred 
candidate ranged between 29 and 39 percent for the seven elections 
analyzed. Plaintiffs' Exhibit D-02. The highest Y intercepts were

37



61.8% and 71.7% for Judges Baraka and Wright respectively, the non­
preferred candidates. Id. The highest percentage of Anglo Cross 
over votes received by the preferred candidate of Black voters was 
approximately 39 percent. -1 Id.-,- 1980 race -involving Joan Winn 
White. There are 197 precincts in Dallas County that are 90% or 
greater white population. Plaintiffs' Exhibit P-I D-06 & 07.

n. This is corroborated by Dr. Engstrom's homogenous
precinct analysis and Dr. Wiser's analysis. r,.-Id. at-column 1. - 
This analysis demonstrates that an Anglo bloc vote exists. The 
Court finds on the basis of the exhibits and testimony of Dr. 
Engstrom and Dr. Wiser that the Anglo or white bioc vote in Dallas 
County is sufficiently strong to generally defeat the choice of the 
Black community. ..

o. Dr. Anthony Champagne testified that judicial elections 
in Dallas County were characterized by strong partisan affiliation 
rather than racially polarized voting. Dr. Champagne analyzed 
contested District Court general elections between 1976 and 1988. 
Plaintiffs' Exhibit P—I D-06-A. Dr. Champagne bases his opinion 
on the steady increase of Republican victories in Dallas County 
over time. Plaintiffs' Exhibit P-I D-07-A pp.1-2. Only seven (7) 
of the contested general elections analyzed involved Blacks 
opposing white candidates. Plaintiffs' Exhibit P-I D-09-A p. 1.

38



No Black candidate running on the Democratic ticket won a general 
election. Two Black candidates running as Republicans■won. Id. 
at 1. - The Court" noted, supra. that it was the non-Black vote 
that gave rise to the success of these two candidates . ■~ See Finding
of Fact 17. e. - • v ' • .rl., r. ..U

p. Dr. Taebel analyzed nine judicial elections -in which 
Blacks opposed Anglos. In eight of the nine, Blacks and Anglos 
voted differently. State Defendants Exhibit D-06 pp. 1, 13, 17; 
21, 37, 69, 73, 81 & 89; See Appendix B, Plaintiffs' Re-Evaluation 
of Dr. Taebel's Reports ("Re-Evaluation") for Dallas County p.l. 
The Black... preferred candidate won only once. Id. This sole 
victory arose in the 1988 Republican primary. Id. The Black 
choice won only five (5) of the other twelve primary and general
District Court and Appellate ! 'Court races analyzed. : Id.';
Plaintiffs' Re-Evaluation p. 2. k* •:' ' r.

18. Tarrant County. r- rr ' • c'̂ --
-• a. • Dr. Robert Brischetto ("Dr. Brischetto”) testified 

concerning on behalf of Plaintiffs and Plaintiff-Intervenors in 
Tarrant County and the remaining counties at issue. He weighted 
his analysis in all remaining counties. Dr. Brischetto used Black 
population data by precinct from the 1980 Census for thirty four

39



(34) precincts in Tarrant County where precinct lines had not 
changed. He analyzed four (4) elections in which Blacks opposed 
Anglos in Tarrant County (three judicial elections and the 1988 
Democratic Primary). See Appendix A, Plaintiffs' Exhibit Ta-02.

b. In Tarrant County and other Contested counties where
there was a large representation of three ethnic/racial groups, DrV 
Brischetto used multiple regression analysis. Dr. "Brischetto 
testified that this approach shows the effect of the percentage_of 
Hispanics in precincts, for example, upon the votes received by a 
minority candidate, when accounting for the effect of the 
percentage of Hispanics. The statistical calculation that shows 
the effect is called the "Partial r." :r- •

c. Dr. Brischetto calculated "Partial r" values of -87%, 
-80% and ~90%~ respectively for the three judicial elections 
analyzed. Plaintiffs' Exhibit Ta-02. "There was "a negative 
correlation in the 1986 Salvant - Drago race and the 1986 Sturns - 
Goldsmith race. Salvant and Sturns were Black candidates running 
as Republicans. They did not receive the support of the Black 
community. Id. Approximately 93% of the Black voters in precincts 
analyzed voted for Drago, while approximately 85% of Black voters 
voted for Goldsmith. Id. The likelihood that the estimates would 
occur by chance (significance level) was much smaller than .05.

40



Testimony of Dr. Robert Brischetto. Dr. Brischetto's regression 
analysis shows a strong relationship between race and voting 
patterns in Tarrant County. The strength of the correlation is 
dependent on the size of the number not on the positive or negative 
value assigned to it. The negative correlation in the Salvant and 
Sturns races merely reflects that as the percentage of Blacks in 
voting precincts increases, the support for Salvant and Sturns 
decreased.

d. The lowest r squared for these analyses is 
approximately 64% for the 1986 race for Criminal District Court 
Place 1. Race explains at least 64% of the variance in voting in 
all elections relied on by Plaintiffs and Plaintiff-Intervenors in 
Tarrant County.

e. Plaintiffs' Exhibit Ta-02 further analyzes the Jesse 
Jackson Democratic Presidential Primary in 1988. The Partial r for 
Jesse Jackson was 98%. Although the Jackson race was not a 
judicial election, its analysis corroborates the judicial elections 
analyzed. However, Dr. Brischetto testified that he would reach 
the same conclusions without considering the Jackson contest.

f. Dr. Brischetto's homogenous precinct analysis 
corroborates the results of his regression analysis. Plaintiffs' 
Exhibit Ta-02. It shows that Black voters in Tarrant County gave

41



more than 89% of their votes to the preferred candidate of Black 
voters in every election analyzed. ; c---- = • .-•

9* - -Dr* Brischetto also recompiled and reanalyzed Dr. 
Taebel's work concerning Tarrant County. Plaintiffs' Exhibit Ta- 
iO. Plaintiffs' Exhibit Ta-10 compiles all of Dr. Taebel's 
analysis of countywide elections for judicial positions when Blacks 
opposed Anglos. Dr. Taebel also found negative correlation of 
-63% and -60% in the Salvant and Sturns elections respectively. 
Id. While these correlation figures are not as high as those 
found by Dr. Brischetto, they still reflect a strong correlation. 
See Finding ;of Fact-16.b; last sentence-— 1 —  - -  ’ -

h * --D r * Taebel used bivariate regression in his analysis. 
Dr. Brischetto is of the opinion that had Dr. Taebel used 
multivariate: analysisv'. his correlation estimates would1 have' been 
more precise,,. Further Dr. Brischetto believes that the r values 
wouid bave been higher, because the analysis -would have eliminated ' 
the effect of Hispanics. while Dr. Brischetto did not agree with 
Dr. Taebel's statistical methodology, he reviewed Dr. Taebel's work 
because Dr. Taebel's data set was more complete. r-,.

i._ This Court finds, on the basis of all' of Dr. 
Brischetto's analysis, the Black community in Tarrant County votes 
cohesively in general elections for State District Court Judges.

42



j. The Court further finds that the Anglo bloc vote in 
Tarrant County is sufficiently strong to defeat the minority 
community's preferred candidate. In the three general elections 
analyzed, the preferred candidate of Black voters lost every time. 
This is true even though each of the Black preferred candidates 
had a sizeable percent of Anglo cross over votes. Plaintiffs' 
Exhibits' Ta-02; Ta-10. The Y intercept~ reflects that Anglo 
support for-the Black preferred candidates was between 42% and 49%. 
Id. Ta-02.^ec. ,, .. . ; U; ; .... • . ... •>.

_k. The testimony of Plaintiff and sitting District Judge 
Maryellen Jiicks corroborates: this analysis. ' Judge Hicks is Black. 
She testified that the only time she ran against an Anglo in a 
countywide judicial election she lost. Plaintiffs' Exhibit Ta-10,- 
County Criminal Court Place 1.- She feels that she lost because she - 
could not convince Anglos to vote for her. She also believes that 
she could«not win if she had Anglo opposition because of the Anglo 
vote. - rv ; ■ : . ,,r,. . .;m,, ... .

1. -.Judge Hicks testified that implementation ; of single 
member districts in Tarrant County Jiad .immediate effects. .Before 
the districts went into effect, only two Blacks had been elected 
to School Trustee positions. Since single member districts were 
implemented, two Blacks and one Hispanic have consistently been

't j f r on

43



Trustees. Two Blacks and one Hispanic also took office on the Fort 
Worth City Council as a result of single member districts being 
implemented for that body. Further, after single member districts 
were established for State Representative offices, two minorities 
were elected to the Texas House of Representatives.25. - r. .

m.' In the five primary and general judicial elections- 
involving Black candidates analyzed by Dr.~Taebel, the Black choice 
won only once. State Defendants Exhibit D-39 pp. 1, 29, 33, 37 & 
57; See Appendix B, Re-Evaluation for Tarrant County p.l* It is 
clear that Blacks and Anglos voted differently in these races, id. 
In District Court general- elections that did notr have a Black 
candidate, the oandidate preferred by Black voters won three (3) 
of five (5) times. Id. D-39 pp. 13, 17, 21, 25 & 61; Re-Evaluation 
at 1-2': ~-In-.three other ̂ judicial -general elections the-candidate 
of choice of the Black community won all three times. Id. D-39 pp. 
9, 49 &-65? -Re-Evaluation at 2. Two of the three were Appellate 
Court elections, while the third involved the County Court at Law. 
Id. The candidate of choice also won all three primary judicial 
elections analyzed by Dr. Taebel. Id. D-39 pp. 5, 41 & 49.' --:

After the lines were redrawn in 1982, one minority has been 
elected; rr "-

44



19. Bexar County.
-a. Dr. Brischetto based his analysis of Bexar County on 

Spanish surnamed registered voter data by precinct from the office 
of the Secretary of State of Texas. Dr. Brischetto testified that 
this data was the closest measure of actual registration data by 
precinct. Dr. Brischetto used bivariate regression analysis in 
Bexar County because of the very small Black population in^the
County r .-i--- ------  - • - •_

- b. He analyzed six (6) general elections from 1980 to 1988 
in which Hispanics opposed Anglos. See Appendix A, Plaintiffs' 
Exhibit- B-02. He calculated "rJ1 values for Hispanic preferred 
candidates between 86% and 88%.v Id. f His regression analysis shows 
a strong relationship between race and voting patterns in Bexar 
County. In all but one race, ras the percentage :of'Hispanics 
increased?'support for the Hispanic preferred candidate increased. 
Dr. Brischetto testified that the probability that 'correlation of 
this size would happen by .chance was much smaller '-than the 
generally accepted level of .05.26 • c ' • h : . - j:

c. In the 1982 Barrera - Stohlhandski race, the Hispanic

The significance level for each election is .0000. 
Plaintiffs' Exhibit B-02. Dr. Brischetto testified that there was 
practically no [or zero] probability that these correlations would happen by chance.

45



candidate, Roy Barrera, Jr. running as a Republican, received very 
little Hispanic support. The correlation coefficient for Mr. 
Barrera was -80%. Id. As the percentage of Hispanics in voting 
precincts increased, Barrera's support decreased. Barrera received 
approximately 17% of. the Hispanic vote. Id. He was not the 
preferred candidate of Hispanic voters in Bexar. County. o :l ..

•::i■ d.;..... The lowest r : squared for - these r analyses is 
approximately 64% for Mr. Stohlhandski, an Anglo running as a 
Democrat in the 1982 Barrera - Stohlhandski race. The highest r 
squared was 77% for the 1986 Cisneros - Peeples race. This 
demonstrates inBexar County that race explains at least 64% to 77% 
of the variance in voting in all six elections.

e. Dr. Brischetto's background and homogeneous precinct 
analysis confirm the fact that iHispanics are politically cohesive 
in Bexar County. Dr. Brischetto lives in Bexar County and analyzed 
election behavior there in a Section 2 case involving the San 
Antonio River Authority.-., Plaintiffs' Exhibit B-16v- There he 
found polarized voting along racial and ethnic lines in a 
nonpartisan election involving low profile campaigns. Dr. 
Brischetto's homogeneous precinct analysis shows that Hispanic 
voters in Bexar County gave 73% to 93% of their votes to the 
preferred candidate of Hispanic voters in every election.

46



f. Dr. Brischetto controlled for absentee votes in 1988 
elections based on allocated data from the Bexar County Elections 
Administrator. He testified that the additional data did not • •
change his conclusions. .....

• g. Plaintiffs presented evidence from four hypothetical 
districts carved out of existing precincts for each of the six 
elections analyzed.- Plaintiffs' Exhibits B-12a - 12e. Almost ~' 
always, the Hispanic candidate who actually lost at-large would 
have won if he had run from a hypothetical majority Hispanic y ̂  a ., 
district. _.__In one case, the 1988 Republican primary between^ 
Arellano and White, the Hispanic^-candidate won in cnly three of the.-.wr, = , 
four hypothetical districts.~ Id. B-12e. . ■ • v--- — , — *na

h. In the 1988 Arellano — White Republican primary for the I
150th District Courts Arellano * ran...as jianii appointed Incumbent. <- ross 
White,.an Anglo, decided late in the campaign that he did not want
to run for office. .. It was too -late to withdraw, but he endorsedro get. 
his opponent Arellano. White nevertheless -won. Adam Serrata Judae 
testified in his deposition that this was a classic example of r.-iw.: 
polarized voting. Deposition Summary of Adam Serrata ("Serrata 
Depo. ") . . hss

i. Other testimony suggests the same conclusion. J u d g e .. 
Anthony Ferro testified in his deposition that he -ran for County ’.‘.n-rr.

47



Court at Law four times in Bexar County. He won two races were he 
did not have Anglo opposition. Deposition Summary of Anthony Ferro 
("Ferro Depot") at 1. Both Messrs. Serrata and Ferro testified 
that it is not possible to get elected in Bexar ^County to the 
position of District-Judge without Anglo support. Id.; Serrata v 
Depo. — . - • -u: --.

- j .- Dr/ Brischetto further concluded that the-Anglo bloc , 
vote in Bexar County is sufficiently strong to defeat^the Hispanic - 
community's preferred candidate. In the six elections analyzed, th 
the preferred candidate of Hispanic voters won only once. See 1988 
Mireles - Bowles race. The Y intercept reflects that non-Hispanic 
support for the Hispanic preferred candidates was between 18% and 
35%. It is' not surprising that the one Hispanic candidate of 
choice who won also received_the highest percent of Anglo cross 
over votes. -r‘ >.1-,

k. Judge Ferro testified that he has only been able to get w  

elected when he did not have an Anglo opponent. Ferro Depo. Judge 
Paul Canales testified that voters in Bexar County pay attention 
to the race/ethnicity of candidates in-judicial elections. -

l. The effect of fairly drawn single member districts has 
had a positive effect on minority election results in Bexar County. 
Immediately after the creation of single member districts in White - -

48



v. Reoester. Hispanics were elected to the Texas House of
Representatives. further, immediately after the City Council 
implemented single member districts, the number of minorities on 
the San Antonio City Council increased. Serrata Depo.; Ferro Depo.

• m. Whites and Hispanics voted differently in 28 of the 29 njn e t  

judicial elections involving Hispanic candidates in Bexar County. -,_j 
State Defendants Exhibit D-07 pp.. 2-5U.-18; See Appendix B , Re- - 
Evaluation for Bexar County p.1-2. In the twelve general elections 
analyzed by Dr. Taebel, the Hispanic preferred candidate won three .sLr-r 
(3) times. Id. D-07 pp. 4, ’5, 7, 15-16, 18-21 & 25-28; Re-
Evaluation at 1. Only one of those was a District Court election.
Id. D-07 at 5. The Hispanic choice won six (6) out of 18 primary cv ~ . 
elections. Id. Re-Evaluation a.t 1-2.  ̂ -- ■ r

' J ' v— —  '■ ^ • • ■ • j . « .  j  • -  - i v 4

‘•■20 .anTravis County. ' r ? • -nv/ed.
Sc.a.r.ppDr. Brischetto analyzed othree (3) 1988 countywide rved

judicial elections in Travis County: one primary election for the one 
345th District Court and two County Court, at Law general elections. t.;- 
Dr. Brischetto testified that there has only been one Hispanic - 
Anglo District Court election between 1978 and 1988. . In that race, 
the Anglo won. Plaintiffs' Exhibit Tr-11; Testimony of Jim 
Coronado. Mr. David Richards testified that the Republican party nonov

! ■ i ; ;  : n t  | - v  i'i i i i •

49



is insignificant in Travis County. Hence, Mr. Richards concluded 
that the Democratic Primary is the true testing ground for opposed 
candidates in judicial elections.

b. Dr. Brischetto used Hispanic population data by 
precinct from the 1980 Census reconfigured +to 1988 'precinct 
boundaries. He based his polarization and homogenous precinct 
analysis ton total population figures for Blacks, Hispanics and 
Anglos in approximately 178 precincts ̂ (virtually ali^of t-them) in 
the County. Amalia Rodriguez Mendoza^ the Travis County Registrar 
of Voters, provided the data.

—  c » Dr. Brischetto 's~multivariate or multiple regression 
analysis shows that the Hispanic community in Travis County is 
politically cohesive, when the effect of the Black vote is 
considered. Dr. Brischetto calculated "Partial r" valges~of -84%, 
85% and 90% respectively for the three judicial elections analyzed. 
See Appendix A, Plaintiffs' Exhibit Tr-02. The Hispanic preferred 
candidate received at least 77% of the Hispanic vote ‘ in one 
election27 , 93% in the Democratic Primary election and 95% in the 
Garcia - Phillips race. Id. The likelihood that the estimates 
would occur by chance (significance level) was much smaller than

rThe 1988 County Court at Law race between Castro Kennedy 
and Hughes. Castro is the Hispanic preferred candidate. 
Plaintiffs' Exhibit Tr-02.

50



.05. Testimony of Dr. Robert Brischetto. Dr, Brischetto's 
regression analysis shows a strong relationship between race and 
voting patterns in Travis County. : ~- • y

d. The homogenous precinct analysis for Travis County 
establishes 4a similar pattern. Plaintiffs' Exhibit Ta-02. It? 
shows ■that Hispanic voters gave more than 63% arid as high as 90% 
of their votes to the Hispanic preferred candidate.

e. Dr. Brischetto also reanalyzed the same three elections 
using bivariate regression analysis based upon voter registration 
data. See Appendix J A, -Plaintiffs' Exhibit ~'Tr-19. These 
correlation figures are very close to those -calculated using 
multivariate analysis, and clearly reflect strong correlation;- See 
Finding of Fact 16.b. last sentence. With either data set," Dr. 
Brischetto's analysis shows that as the percentage of Hispanics in 
precincts increase, so does support for the Hispanic, preferred 
candidate. The r squared figures all exceed approximately 64%.- -

1 f. The Hispanic preferred candidates took the majority of 
the votes from Plaintiffs' hypothetical districts even though they 
lost countywide. Plaintiffs' Exhibit-Tr-12.

g. The State Defendants were concerned that Plaintiff's 
did not analyze Statewide judicial or legislative elections. See 
Cross examination of Jim Coronado; Cross examination of Dr.

51



Brischetto. Dr. Brischetto testified that Plaintiffs focused on 
local elections when that data was available and these elections 
were not reached in Plaintiffs' hierarchy of priority. He further 
testified that the elections analyzed were the closest in nature 
to District Court elections. Dr. Brischetto felt that once he had 
three elections he could determine-a sufficient pattern.,- - This
Court agrees;28 - ; ...

h.- The State Defendants attack Dr. Brischetto-'s analysis ■ w *  

on the ground that he did not take “into account: (1) absentee buoPi­
voting;-and ( 2 )  the number of non-United States citizens, Blacks • ■ 
or Anglos with Spanish surnames “in Travis County.

urivr Dr. Brischetto;controlled for absentee-votes in 1988 t-i 
elections in Bexar County. He testified that Bexar County had the 
highest absentee voting than anywhere in the State.r JHe_;concluded:~c -ir. 
in his Bexar County analysis that absentee voting did not change >.\i lv 
his conclusions. See Findings of Fact 19.f. This Court: .finds ui 
that the results would not be significantly different in Travis5 panic 
County. .,. . .. . . . a

j♦ Spanish surname counts were based on persons who - 
identified themselves in Census counts as being of Spanish origin.

28 •Ginqles itself relied on only analysis of three elections 
in Senate District 22 (1978, 1980 & 1982) and House District 21 
(1978, 1980 & 1982). Ginqles. 478 U.S. at Appendix A.

52



While the Court recognizes that the Census definition of Spanish 
origin includes many parallel ethnic backgrounds, this Court finds 
that the probability of overlap of Black and/or White voters is 
very slight. _ ... .

k. Finally, the State Defendants claim that the analyses 
of the ‘ Democratic' Primary between Judge Gallardo (the Hispanic 
preferred candidate) and McCown is misleading. Witnesses for the 
State Defendants testified that Judge Gallardo lost because he was 
a bad judge. Depositions of Becky Beaver & Fernando Rodriguez; 
Testimony ! of David Richards. "While this may be true, under 
controlling law, it is the correlation between- the race of the 
voter and the selection of certain candidates that is .crucial to 
this Court's inquiry. Gingles, 478 U.S. at 63.

l. The Court further finds that the Anglo bloc vote in
Travis County is ̂ sufficiently ̂ strong to defeat the minority 
community's preferred candidate. The preferred candidate of; 
Hispanic voters lost each election analyzed. Two of the Hispanic 
preferred candidates received approximately one third Anglo cross 
over votes. Plaintiffs' Exhibits' Tr-02; Tr-19. The other
candidate received only approximately 14% Anglo cross over votes. 
Id., Tr-02.

m. In each of the hypothetical districts, the candidate

53



of choice of the Hispanic community received the most "votes; in two 
districts the candidate of choice received a majority.

n. Dr. Taebel analyzed the same three elections analyzed 
by Plaintiffs' expert.■ State Defendants Exhibit D-08; See Appendix 
B, Re-Evaluation for Travis County p. 1. .His analysis confirms 
that in these three races whites and Hispanics voted differently 
and the Hispanic preferred candidate lost each time. Id. D-08 pp. 
33, 37, 41... TheoHdspanic preferred-candidate -fared - better in
Appellate elections winning one primary ,runoff and two general 
elections. .Id. D-08 pp. 25, 29 & 45. Hispanic and white voters 
did not vot-edifferentiyrinr these three election contests but did 
so in ■ the '1984 and:: 1986 Democratic _ primary for County Court 
numbers 1 and 7. Id. D-08 pp. 33 & 41* . , .

21- Jefferson Countv l co s ,
a •' Brischetto used Black population data by precinct'

from the 1980 Census for all of his analysis in Jefferson County.. 
He testified that population had changed -very little in Jefferson 
County. Plaintiffs'_Post Trial Brief at 95. Only those precincts 
that retained unchanged boundary lines were used in his analysis.

b. He analyzed five (5) Democratic primary elections, two 
(2) Democratic primary runoffs and the 1988 Presidential Democratic

54



primary. See Appendix A, Plaintiffs' Exhibit J-02 pp. 1-2. Four 
of the five primaries analyzed involved Justice of the Peace 
contests. The fifth was :for a' County Court at Law post. ; Dr. 
Taebel did not analyze any of these elections. State Defendants' 
Exhibit D—09» Each of the Justice of the Peace election precincts 
covered at least an entire city which are the-largest urban areas 
of the County. Precinct 1 covers the City of Beaumont, Texas." 
Precinct 2 covers the City of Port Arthur, Texas. Tom Hanna 
testified in his Deposition that running for1 office from these 
precincts is equivalent to running at large from the two cities.

Brischetto testified that'there-were no primary or general- 
elections for District Court seats that pitted Black against Anglo.

c. Dr. Brischetto^used multivariate regression analysis 
in his examination of Jefferson County separating out the effect- 
of the Hispanic votei He calculated "Partial r" values between 66% 
and 97% for the judicial primaries and runoff elections analyzed. 
Id. The partial r for the Black preferred candidate in the 
Democratic Presidential Primary, Jesse Jackson, was 97%. Id. The 
livelihood that the estimates would occur by chance (significance 
level) was much smaller than .05* Id. Dr. Brischetto's regression 
analysis shows a strong relationship between race and voting 
patterns in Jefferson County. The Black preferred candidate

55



received a clear majority of Black community support in at least 
five of the seven judicial contests analyzed. Id., multivariate 
and homogeneous analysis for 1972 to 1978. In the 1982 primary for 
Justice of the Peace, Precinct * 1, Blace- 2 , the Black preferred 
candidate Cannon received approximately 51% of the Black community 
vote, while two opponents split the remaining 49%.

' ~d. In one instance, the Black preferred candidate did not
receive . a. .majority,; of the Black community vote. In the 1986- 
Democratic Primary for Justice of the Peace, Precinct 1, Place 2,
the Black preferred candidate, Wilmer Roberts, only received 47% 
of the Black"vote ^40% in homogeneous precincts). The other 53% 
(60% in-homogeneous precincts^ was split between four candidates.
John Paul Davis, a Black attorney from Jefferson Country, testified 
in his ̂ Deposition that he supported the:white candidate because she 
was the most liberal at the time he made his choice and Mr. Roberts
announced late-in the race.

' e * The r squared figures range from 44% for one race (1972- 
runoff) to 94% for three races (1978 & 1982 judicial primaries and
1988 Presidential primary). It is clear from Dr. Brischetto's 
analysis of voting patterns in Jefferson County that as the 
percentage of Blacks increase in a precinct, the percentage of 
support for the Black preferred candidate increases.

56



. f. Dr. Brischetto examined the votes cast in a 
hypothetical district for the 1978 Democratic Primary between Mr. 
Davis and an Anglo opponent. The analysis shows that Davis 
received more votes in each precinct and a majority of the vote in 
the district.. Plaintiffs' Exhibit J-09.

g. State Defendants argue fhat the three races analyzed 
in 1982-, -1986 and 1988 either show no racial polarization or a 
victory for the Black preferred candidate. This Court disagrees. 
As the Court discussed, supra. the Black preferred candidate was 
supported -by a majority of the Black community in the 1982 
Democratic Primary. See Finding of Fact 21.c. With-reference to 
the 1986 Democratic Primary, the Court finds that the State 
Defendants' evidence is -not conclusive that the Black community 
either would not have cohesively supported Wilmer Roberts had he 
announced earlier or that the Black community cohesively, supported 
some other candidate. Plaintiffs' Exhibit J-02; Finding of Fact
21.d. rThe Court further finds that while Jesse Jackson.may have 
carried Jefferson County in the 1988 Presidential Primary, that 
fact alone is a far cry from whether the Black preferred candidate 
is successful;in Jefferson County. n.

1 h. State Defendants further point to the 1984 Democratic 
Primary between John Paul Davis and Donald Floyd, both of whom are

57



Black, to demonstrate that the Black community is not politically 
cohesive in Jefferson County. While Mr. Floyd won the primary and 
the election, Defendants did not demonstrate that the Black 
community split their vote or failed to support one candidate-over 
another. - -- rne

. i. This Court finds on the basis of. the foregoing 
discussion'^that the Black community in Jefferson County votes 
cohesively in judicial elections. ___  ____ _______________

j. In at least f ive iof \the seven elections analyzed it is
clear that blacks and whites voted differently and the preferred 
candidate of Black voters lost every time. The Black communities 
candidate of choice received 25% to 41% of the Anglo cross over': 
vote in election years 1972 and 1974. The percentage dropped 
thereafter to a low of 2% for Wilmer Roberts in 1986 and arrange 
of 7% to 10% for the other two judicial races. Plaintiffs'
Exhibit' J-02. Although the Black preferred candidate received 70% 
to 93% of the Black community vote in five of the seven elections 
analyzed they still lost countywide.

k. The Court finds that the Anglo bloc vote in Jefferson 
County is sufficiently strong to defeat the minority community's 
preferred candidate.

l. “No Black attorney has run for the position of District

58



Judge in Jefferson County. Deposition Summary of John Paul Davis. 
Mr. Davis feels that Black lawyers do not run for the-‘office 
because of the high probability of defeat. Id.

m. Implementation of single member legislative and 
Commissioner's Court districts resulted in the election of Black 
preferred candidates to those positions. Deposition Summary of 
Thomas Hanna. • • •• ■ r " .. • = • -

’ 22 s Lubbock Countv. - - : ; l. . n. :
a.' Dr. Brischetto used population data from the 1980 

Census.precinct boundaries-for his analysis in-Lubbock County. He 
initially based his review on 30 ofi 76 precincts which had not 
changed between 1980 and the relevant elections analyzed He 
analyzed additional precincts that he was able to reconfigure, by 
use of Census block maps'.29

* b. Dr. Brischetto relied on appellate judicial contests. 
He testified that no relevant local judicial contests involved a 
minority opposed by an Anglo candidate. He further testified that 
he did not analyze local Justice of the Peace races because the

He analyzed 48 of the 76 total precincts in the 1986 
primary, 44 of 7 6 in -the 1986 runoff, 48 in bhe 1986 general 
election and 47 in the 1988 general election. See Plaintiffs' Post 
Trial Brief at 109 n. 55.

59



Justice of the Peace precincts were not at least as.:large as a 
major city. He analyzed two (2) Supreme Court general elections, 
two (2) Democratic primary elections and two (2) Democratic primary 
runoffs. . See Appendix.A, Plaintiffs' Exhibit L-02, pp. 1-3.^

- lC. . Dr. Brischetto used bivariate, multivariate regression 
and homogeneous precinct analysis in his examination of Lubbock 
County. The bivariate analysis produced correlation coefficients 
in excess of 87% with a corresponding r square figure of 76%. id. 
He used multiple regression analysis to show that Blacks and 
Hispanics vote together. This analysis revealed that the two 
groups favored the same candidates in each elect ion^r^JTd..T.TTThe 
lowest-partial r calculated for Hispanic voters was 78% in the 1986 
Democratic Runoff for Supreme Court place 4. The lowest partial 
r for Black-voters was>56% in the 1986 Democratic Primary for the 
same Court prior to the runoffrelection. The likelihood that the 
estimatesMwould occur by chance (significance level)-, was- much 
smaller than .05. Id. Dr. Brischetto's regression and homogeneous 
precinct analysis ..shows a strong relationship between
race/ethnicity and voting patterns in Lubbock County. The
combined minority preferred candidate received a clear majority of 
combined minority community support in each election analyzed. Id. 

" d. It is clear from Dr. Brischetto's analysis of voting

60



patterns in Lubbock County that as the percentage of minorities 
increase in a precinct, the percentage of support for the minority 
preferred candidate increases. This Court finds that Blacks and 
Hispanics are cohesive as -a group in Lubbock" County judicial 
elections i - ' - i . ... : r ' . . ...: ; - f ;'

e. * ' Maria Luisa Mercado, a Hispanic attorney from Lubbock- 
County, testified that Blacks and Hispanics work together in the 
County on many significant issues. Deposition Summary of Maria 
Luisa Mercado ("Mercado Depoi1").

f. The State Defendants point to the 1984 race for Justice 
of the -Peace -between Sedeno, a Hispanic candidate running as a 
Democrat, - against a Black‘Republican candidate/McKinley Shephard 
to illustrate that Blacks and Hispanics do not vote cohesively as 
a group. The Black boxes voted for Mr. Shephard. Mercado Depo. 
at 2. ; Dr.'-'Brischetto testified that this race was not analyzed 
because the Justiceeof /the Peace precinct in question split the 
City in half . ’• "It did not include a large majority of the County 
or a large metropolitan area." Testimony of Dr. Robert Brischetto. 
This Court finds that the Sedeno - Shephard race does not 
illustrate that Blacks and Hispanics do not vote cohesively in at-
large judicial elections. The Court further finds that Blacks and 

Hispanics opposing each “other says less about the collective

61



cohesiveness of the two groups when either opposes an Anglo.3® --------
g. ' Minorities and whites voted differently in each

election analyzed. However,-the preferred minority candidate won 
on two .of six occasions. Plaintiffs' Exhibit L-02, p. 2, 1986 
Primary for Court of Criminal Appeals, Place 1 and 1586 Runoff;ty-?Vsr- 
In one of those two races^i the minority preferred" candidate 
received 46% of the Anglo cross over votes from homogeneous white 
precincts of 9 0 % to_100% white population.. Id., 1986 Runoff. The 
minority communities candidate of choice received 39%, 40% and 41% ;p .. . 
of the Anglo cross oveir vote, respectively, in three other 
elections:andLstill lost.. Id.,-1986 General Flection, 1988 General- - 
Election and ; 1986 Democratic Primary, ^Supreme Court, Place 4 , v ’
respectively. The Court finds that the Anglo bloc vote in Lubbock 
County is sufficiently strong to defeat the minority community*smemnei.' 
preferred candidate.

h. Defendants argue that Justice Gonzalez may possibly 
have received more Anglo votes in the 1986 Democratic Runoff with 
36% than either of his three opponents, assuming the remaining 64% 
of the Anglo votes were evenly split. Defendants conclude on that 
basis that Anglos did not vote overwhelmingly against Justice ■ :

State Defendants further point to Hispanic - Black state 
representative races in Lubbock County in 1984 and 1986.

62



Gonzalez. This Court disagrees. Assuming arguendo that Defendants 
assumption is correct, the Court finds that Anglo's did - 
overwhelmingly vote against Justice Gonzalez even if they did not 
vote overwhelmingly for a different candidate. " - ' / v y ”

Cci~-u‘ Dr. Brischetto testified concerning some countywide > ^ 
elections in Jones v. City of Lubbock. 727 F.2d 364, 383 (5th C i r . - - -  
1984). His conclusions in Jones corroborate his testimony in this • ~ •
C A S S  • j -  •— «w : c i l ia  X y  Z 6 u  LWO ( A j iSupTHUit- {.’0*1 T  »’■ ci J.

Ms. Mercado testified that - Black and Hispanic. " ;; 
candidates have not been successful in at large elections. Mercado ---- 
Depo. -She'testified that:she-carried all minority boxes and zero 
Anglo boxes in her 1978 bid for City Council. Id. Blacks and 
Hispanics have been successful running for School Board and County 
Commissionerfs positions after the implementation of single member---the 
districts Id. ■. cm.j--̂ c.iiworiv gi i— ■. ■ ■ k :_ i: -i~v-. t — .

l-n k;j - Dr/ Taebel only analyzed two uof the same Appellate ̂ panic 
Court contests analyzed by DrBrischetto.ys. State Defendants' ntior 
Exhibit D-10 pp. 17 •& 25. In both/ minorities and whites voted "in­
differently and the minority choice lost. - Similar results were - - j. -'1 
obtained in two County Court at Law General Elections analyzed by 
Dr. Taebel; Jd. D-10 pp. 5 & 9. However, in those two races there if 
was no ' minority candidate. See Appendix B, Re-Evaluation of for

63



Lubbock County.

23. Ector County. - ; —  .< “ ■ i?-
a. Dr. Brischetto used population data from the 1980 

Census precinct boundaries to analyze 24 of the 31 total precinctsr- 
in Ector County which had not changed between 1980 and the relevant 
elections analyzed. As in Lubbock County, he relied on appellate ; 
judicial contests. He analyzed two (2) Supreme Court General 
Elections and two (2) Democratic Primary Elections. See Appendix
A, Plaintiffs’ Exhibit EP-02, pp. 1-2.TT He testified that "no County 
or District Court contests involved a minority opposed by an Anglo-: _ 
candidate. - -- ----- .— --- --

b. iDr. Brischetto used the same statistical analysis used
in Lubbock County. Bivariate analysis was used to separate the 
white and aninority votes. 'Testimony of ‘Dr. Robert Brischetto. 
Multivariate analysis was used to separate the/Black and Hispanic .
vote. Id.— The bivariate analysis produced correlation . 
coefficients in excess of 78% with a corresponding r square figure
of 61%. Plaintiffs' Exhibit E-02, pp. 1-2. Multiple regression 
analysis shows that Blacks and Hispanics vote together. This - -  

analysis revealed that the two groups favored the same candidates 
in each election. Id. The lowest partial r calculated for

64



Hispanic voters was 46% in the 1986 Democratic Primary for Supreme 
Court Place 4. The lowest partial r for Black voters was 60% in 
the 1988 General Election for Supreme Court, Place 3. The 
likelihood.that the estimates would occur by chance (significance 
level)- was 1 much smaller than .05. Testimony of Dr. Robert 
Brischetto. <«<.••! _ .j- _  , w  . ;'-a ai -

 ̂ c ^ ~  rA clear majority of the combined minority community 
supported-_the . .preferred minority • candidate in each- election 
analyzed. Even in the race for Supreme Court, Place 4, ; Justice 
Gonzalezreceived 42% of the Hispanic vote and 65% of the Black 
community-vote. Id. Dr. Brischetto's regression and homogeneous 
precinct analysis shows" '• a •/n strong relationship between 
race/ethnicity and voting patterns in Ector County. The lowest 
level of combined support is reflected as .50% in the Democratic 
Primary for }Supreme Court, Place 4. Id., Homogeneous precinct 
analysis, p. 2. Dr. 'Brischetto attributes the lack, of stronger 
minority group cohesiveness in that race to the iact that one of 
the candidates in the ^Primary was > from Ector County. Id.. 
Candidate Gibson. However, in the General Elections for 1986 and 
1988, homogeneous precincts of 80% or more combined minority gave 
more than 80% of their vote to the minority preferred candidate.

d. :it is clear from Dr. Brischetto's analysis of voting

65



patterns in Ector County that as the percentage of minorities 
increase in a precinct, the percentage of support for the minority 
preferred candidate increases. This Court finds that Blacks and 
Hispanics are cohesive as a group in Ector County judicial 
elections. : • • ... . c OU L̂ VLiU-’ .

e. Minorities and whites voted differently in each 
election analyzed. Minorities supported the minority preferred 
candidates'in much, greater percentages than Anglo voters. The 
preferred minority candidate won only one race analyzed. See 
Plaintiffs^ Exhibit"^-02; ;p:? 2, 1986 Primary for Court of Criminal 
Appeals, Place 1. —  -- —  ■■ ..... ■ .

f M i n o r i t i e s  have been elected to Justice of the Peace 
and County Commissioner's positions from predominately minority 
precincts. Deposition Summary of Lawrence Leo Barber ("Barber 
Depo. ") . : ’• ’ -l-iini: i £ ’ * • .;i . . r. - . r r.ir- ■

:-! g. -T 'Dr. Taebel*s analysis of‘the same two Appellate Court 
contests confirmed Dr.?BriSchetto's analysis. State Defendants' 
Exhibit D - U  pp. 21 & 37. In both, minorities and whites voted 
differently and the minority choice lost. Dr. Taebel further 
analyzed five (5) General Election judicial contests that did not 
involve positing an Anglo against a minority. Id. pp. 5, 9 , 13, 
29 & 33. Minorities and whites voted differently and the minority

66



preferred candidate lost in three of the five. See Appendix B, Re- 
Evaluation of Ector County. .

24. Midland County.
a. Dr. Brischetto based his analysis on population data 

from the 1980 Census.= He analyzed 11 of the .36 total precincts for 
1986 and : 10 of 36 for 1988 that had boundaries that had not 
changed.. =... He was also able, • to reconfigure boundaries for 22 
precincts in 1986 and 23 in 1988. Testimony of Dr. Robert 
Brischetto. He relied on appellate races and one Justice of the 
Peace race since there have been no local - countywide-election 
contests: in which minorities opposed Anglos. The Justice of the 
Peace race encompassed the entire City of Midland. Testimony of 
Aquilla Watson. He analyzed three elections in.-“total. See 
Appendix A,zPlaintiffs' Exhibit M-02. Dr. Taebel did not analyze 
the Justice-of the. Peace contest.

b. Dr. Brischetto used bivariate regression analysis in 
Midland County. The bivariate analysis produced correlation 
coefficients in excess of 89% with a corresponding r square figure 
of 79%. Id. Better than 85% of the combined minority voted for 
the minority preferred candidate in each race... Id. The likelihood 
that the estimates would occur by chance (significance level) was

67



much smaller than .05. Testimony of Dr. Robert Brischetto. Dr. 
Brischetto's regression and homogeneous precinct analysis shows a ~ 
strong relationship between race/ethnicity and voting patterns in 
Midland County. ...

c. It is clear from Dr. Brischetto's analysis of voting
patterns in Midland County that as the percentage of minorities -. 
increase in aprecinct, the percentage of support for the minority H n c  

preferred candidate increases. This Court finds that Blacks and-- uwo 
Hispanics are cohesive as a group in Midland County judicial - •••
elections^ ---v - K- . L io n s :  1 : * - ' • ■_

d. It is further clear that minorities and whites voted
differently in each election analyzed. - Minorities supported the 
minority preferred candidates in much greater percentages than 
Anglo voters. The preferred minority candidate lost each race 
analyzed despite the large percentages--of combined minority 
support. Id. L - :

e. This analysis is supported by Dr. Brischetto' s analysis and 
and testimony in Lulac v. Midland ISP. 648 F.Supp. 596, 600 (W.D.
Tex. 1986), aff'd. 812 F.2d 1491 (5th Cir. 1987), vacated 829 F.2d 
546. Plaintiffs' Exhibit M-05. :

f* Aquilla Watson testified that she received very few 
Anglo votes. She only carried four (4) of the thirty-six (36)

68



precincts. Only one of the four included some Anglo cross over 
votes. Testimony of Aquilla Watson. 15 Minorities have been elected- 
to the School Board and County Commissioner's Court from 
predominately single member districts. Id. : . . ,

' gi: Dr. Taebel analyzed four (4) judicial contests iniwhich 
a minority candidate ran against one or more white candidates. 
State Defendants' Exhibit D-12 pp. 9y 21, 25 & 29. Minorities and 
whites^voted differently and the minority choice lost in the two 
General Elections analyzed, ,Id. pp. 25 & 29. The minority choice 
also lost in both primary elections, but there is some indication 
that minorities and some white voters “voted the same. Id;- pp;- 9 
& 21. ■ See Appendix BVrRe-Evaluation of Midland County. z .7 \ Q

i. r.V ff i (•."! f * • :n .
2.' ACCESS TO THE POLITICAL PROCESS c r  ! hr H

- er vi i.c ■ History of Discrimination -ding their doe
25. The effect of past discrimination against Blacks and 

Hispanics in areas such as education,.: employment and health in most 
of the Counties in question is either well chronicled or 
undisputed. See, e.q. , Lulac v. Midland ISP. 648 F.Supp.^ 596, 600 
(W.D. Tex. 1986), aff'd,-812 F.2d 1491 {5th Cir. 1987), vacated 829 
F • 2d 546; Campos v, City of Baytown.'840 F.2d 1240, 1243 (5th Cir.-

69



1988), reh'q denied. 849 F.2d 1240, cert, denied. _ _  U.S. ___
( 1989); Lipscomb v. Jonsson. 459 F.2d 335 (5th Cir. 19.72); Graves 
v. Barnes. 343 F.Supp. 704, 725 n. 15, 730-34 (W.D. Tex. 1972), 
rev'd in part and remanded sub nom. White v. Regester. 412 U.S. 755 
(1973), on remand, 378 F.Supp. 640, 644 (1974); Terrazas v.
Clements. 581 F.Supp. 1329, 1334 (N.D. Tex. 1984); United States 
v. Texas Ed. Aqcv.. Etc., 564 J . 2d 1£2. 163 (5th Cir. 1977), reh'q 
denied. 579 F.2d 910 (1978), cert, denied. 443 U.S. -915 (1979); ; 
Blackshear Residents Organization v. Housing ^uth. of City of 
Austin, i 347 F.Supp. 1138 (W.D. Tex. 1971); Jones v. City of
Lubbock, 727 F.2d 364, J83 . . ( 5fth . Cir. 1984); United -States v.
CRUCIAL, 722 f.2D 1183, 1185 (5th Cir. 1983). See also Plaintiffs

1 •• : • a ' r i iand Plaintif f-Intervenors Exhibits reflecting ̂ s o c i a l
stratification. • . s. • v r̂ -v \~r,-y ;;y -

26.i This history touched upon many-aspects of the Jives :gf
minorities' in the Counties in question including their access to
and participation in the.democratic system governing this State
and their socio-economic status. "The administration of -justice
in Texas was overwhelmingly dominated by Anglo males in 1968, and
the overall pattern [had] changed very little" by 1978.
Plaintiffs * General Exhibit ("Gen") 02, Texas: The State of Civil
Rights (Ten Years Later, 1968-1978^, A Report of the Texas Advisory

70



Committee “to the United States Commission on Civil Rights at 22 
(1980); City of Port Arthur. Texas v. United States, et al.. 517 
F.Supp 987, 1020 (D.D.C. 1981) (three judge court), aff'd. 459 U.S. 
159 (1982). ....... --.. — -  --

Enhancement
27. Candidates for District Court must run for a specific 

Judicial District Court seat. This is equivalent to a numbered 
post system . 31 District Judges must be nominated in the primary by 
a majority of the votes. ’ ’

'“This provision insures that essentially white-voting-- • ~ -----
majorities have a 'second shot' at [minority] 
candidates who have failed to muster a majority of •" 
the votes in the first election. Time and again, in 
election after election, minority candidates win a 
plurality in the first election, only to lose the 
runoff in highly racially polarized voting. " y J 7 u U;

Testimony of Dr. Charles ’Cbtrelif-atT-491, HearingsntBefore the
Subcommittee on Constitutional Rights; of the Committee on~ the
Judiciary, United States Senate (94th Cong. 1st Sess.) S. 407, S.
903, S. 1409, S. 1443 (1975); Plaintiffs' Exhibit Gen-03 at 491.

"A numbered-post system requires a candidate to declare for 
a particular seat on a [Governmental body. The candidate then 
runs only against other candidates who have declared for that 
position. The voters then have one vote for that seat. The system 
prevents the use of bullet, or single shot, voting. Campos. 840 
F •2d at 1242 n. 1 [citing Gingles, 478 U.S. 38-9 nn. 5 & 6 ].

71



Finally, the size of at least five of the nine target counties 
further enhance the problems that minority candidates face when 
they seek office. Plaintiffs' Exhibit Tr-15 shows that Harris, 
Dallas, Tarrant, Bexar and Travis ;Counties have very large 
populations. See also Plaintiffs' Exhibit P-T D-4.

... r Slating •. t ?, • - - .
28. Slating has been defined as the creation of a package 

or slate of candidates, before filing for office, by an 
organization"with-sufficient strength to make the election merely 
a stamp of approval::of the,pre-ordained candidate group. Overton. 
871 F.2d at 534. Dr. Wiser depicted the Republican Party in 
Dallas County as a white-dominant slating group. This.Court finds 
that such characterization is at odds; with the governing law and-; 
facts of this case. Plaintiffs and Plaintiff-Intervenprs did not 
present- evidence of slating in Harris, Tarrant, Bexar, Travis, 
Jefferson, Lubbock, Ector and Midland Counties.

7 Racial Appeals , _ r.. r
29. Plaintiff-Intervenor for Dallas County, Joan Winn 

White," argued that racial appeals were injected into her 1980 
judicial race against Charles Ben Howell when an advertisement he

72



ran made reference to his opponent (Ms; White) as the "affirmative 
action appointee." Plaintiffs Exhibit P-I D-30. The Court notes 
and Ms. White testified that the term "affirmative action" is used 
in reference to sex as well as race. The Court finds that there 
is nothing inherently racist about referring to '-an affirmative 1 

action judicial appointment.
30. - Plaintiff-Intervenors from Dallas County also argue 

that racial appeals were inserted into the 1986 election between
Royce West and John Vance and the 1988 Republican Primary between -...
Larry Baraka and Brook Busby. This Court agrees."' In the West -
Vance race, Mr. Vance- 7 made a racial appeal • by inserting his ----
opponent's picture in a campaign advertisement financed by Hr. 
Vance's campaign. In the Baraka — Busby race, Ms. Busby campaigned 
with literature pointing out that her opponent was a Black Muslim, ■'•'toys 
Plaintiffs and Plaintiff-Intervenors did not present evidence of 
racial appeals in the" remaining Counties at - issue *

- Electoral Success
31. Since 1980, seventeen Blacks have run for State 

District Court Judge in Harris County. Only 2 (approx: 12%) won. ' o: 
Plaintiffs' Exhibit H 07. Seven Blacks have opposed Anglos in 
District Court General Elections In Dallas County and won only two -~

73



elections (29%) . Plaintiffs'-Exhibit D-09. However, neither of 
these .candidates was the candidate of choice of the Black 
community. Only one Hispanic candidate of choice won in Bexar 
County in six Hispanic -Anglo elections. Plaintiffs' ExhibitB-
11. The Black community's preferred choice achieved the District 
Court bench only once ...out ̂ of three elections.. when ^Blacks ran 
against Anglos in Tarrant County. Plaintiffs' Exhibit Ta-07.
Only one Hispanic candidate ever ran against an Anglo .for a 
District Judge seat in Travis County. The Hispanic candidate lost. 
Plaintiffs' Exhibit Tr-11. No minority candidate has run for the 
office, of District Court Judge in Jefferson County. John Paul 
Davis testified at his deposition that the at-large ̂ system 
discourages eligible Black attorneys from running because the 
chance of success is^ so slim. At least! three, Black attorneys 
sought appointment to dthe District Court bench. ( Deposition Summary 
of John Paul Davis ("Davis Depo."). Similar testimony was 
elicited on behalf of Plaintiffs in Lubbock County. Mercado Depo. 
No minority candidate has run for District Court Judge in Lubbock, 
Ector or Midland County.

32. State Defendants argue that the eligible pool of 
minority lawyers, rather-than eligible minority voters, is the 
appropriate reference point for evaluating the extent of electoral

74



success. State Defendants' Exhibit D-04. The Court notes that 
the two cases relied upon by the State involve Title VII issues and 
do not address the relevant statistical pool in a S 2 case." See
Richmond v, J. A. Croson Co.. 109 S.Ct. 706, 725-26 (1989); Wards 
Cove Packing Co. v. Atonio, 109 S.Ct. 2115^ 2121-22 (1989). State 
Defendants recognize that the pool of eligible lawyers is small, 
due in part, to historical discrimination. -The Court finds that 
even if there is some relationship between the low number of 
minority judges and the number of eligible minority lawyers, that 
fact does not explain why well qualified eligible minority lawyers 
lose judicial elections* .* -_: ___ _ __  ... ... 1 **

• ' O'- Responsiveness
■33 4 ! This Court cannot find anything in the record, ; to 

suggest,a lack of responsiveness on the part of?Judges in any of 
the Counties jin question to the particularized..needs of members of 
the minority community.

'• v Tenuousness
34. Several reasons were offered for the maintenance of the 

at-large system. State Defendants and Defendant—Intervenor Wood 
argued that (1 ) judges elected from smaller districts would be more

75



susceptible to undue influence by organized crime; (2 ) changes in 
the current system would result in costly administrative-changes 
for District Clerk's offices; and (3) the system of specialized 
courts in some counties would disenfranchise all voters rights to 
elect judges, with jurisdiction over some matters. Plaintiff- 
Intervenors, HLA, allege that the at large scheme .was . adopted with 
the intention to discrimiante against Black voters in violation of 
the Fourteenth Amendment to -the-United States Constitution.-

.35v Chief Justice of the Texas Supreme -Court, Thomas
Phillips, testified that the purpose of Article 5, Section 7a(i) 
of the Texas Constitution was to create the Judicial Districts 
Board whicht could equalize the dockets ofi District Judges.-, - To 
further that goal, Article 5, Section 7a(i) requires that judges 
be elected from districts no smaller than a county. -Apparently, 
the rationale for such provision is that District Judges should not 
be responsible to voters over an area smaller than an area where 
they have primary jurisdiction. • .r- . j-r : . r

136. Plaintiff-Intervenors offered the Deposition summary 
of Senator Craig Washington in support of their claim that 
discriminatory intent was .. the focus of the legislative 
deliberations surrounding the passage of Section 7a(i). j The Court 
notes that Senator Washington sat on the Conference Committee and

76



signed the Conference Committee Report recommending the adoption 
of the Senate Joint-Resolution containing the exact language of 
Section 7a(i)Tex. S. J.'Res.; 14, 69th Leg. (1985). See Defendant 
Intervenor Wood's Exhibit 59. Subsequently, Senator Washington on 
the Senator floor voted for-the adoption of S.J. Res 14.  ̂Id. The 
Court further notes that three Hispanic Senators votedin favor of
S.J. 14: Senator Barrientos* Senator Truan and Senator Uribe.

37. Plaintiffs and Plaintiff-Intervenors have the burden 
to establish t.hat the at-large system is maintained on a tenuous 
basis as a pretext for discrimination. Overton. 871 F.2d at 535. 
While the Court does not JLLncLthat_ the present system is maintained 
on a tenuous basis as a pretext for discrimination, the Court"is 
not persuaded that the reasons offered for its continuation are 
compelling.!- v- i.<-. -j A ? . - i -1 ■ n-yo-rt o •

38 ; ^ Under a-single-member scheme or some Mother scheme 
Judges may be made responsible :to jvoters over an area no smaller 
or larger than the area where they have primary jurisdiction. This 
Court finds no reason why all Judges cannot exercise general 
jurisdiction over their geographic area of responsibility. The 
Court further finds that administrative - functions and ■ jury- 
selection could continue to be done on a countywide basis.—';"

39. Our legislative body has seen fit in the past to create

77



in some counties specialty courts. In the mind of this Court this 
is wrong. Judges of civil dockets or judges of criminal dockets 
have equal access to legislation and published opinions. They are 
not intellectually inferior to judges who hear civil, criminal and 
domestic cases. The body of law is large, but is handled capably 
and well by most judges _ia, this State who hear all. types i.of 
litigation. Lawyers specialize. Judges are capable of rendering 
fair, honest and just decisions without concentrating in one narrow 
field of law.’ i .  ;07i-' ijc j.’; ; t- j no o?

r r -  STATE DEFENDANTS ' ANALYSIS
"  , : v r v  • • ; ^  TT:->. ’ \ • -7 G e n e r a l  r; .: f-'f-.i . l:.-’.. 7-r i ,•

40. State Defendants argue that the Supreme Courts 
incorporation in G i n q l e s of the Senate Report accompanying the 
1982 Amendment to § 2, signals a .return to the Supreme Court's pre- 
Ginqles analysis in Whitcomb v. Chavis. 403 U.S 124 (1971). In 
Whitcomb, the Supreme Court rejected a racial vote dilution 
challenge to an at-large system for electing state legislators, 
essentially on the ground that partisan preference best accounted 
for electoral outcomes in Marion County, Indiana. The Court in 
Whitcomb concluded that there was no indication in the record of 
that case that Blacks were being denied access to the political

78



system.. - -----... •
41.. This Court is not convinced that the State Defendants 

are making the correct call. r!’ln any event, the Court ^inds that 
this Court's analysis of the Senate factors applicable to the 
present case point to the continual effects of—  historical 
discrimination hindering the ability of minorities to participate 
in the political process V - '

42. Next, State Defendants are of the opinion that there ;■ 
are really two questions before this Court, depending on what  ̂

electoral stage 'is being analyzed. At the primary stage the 
question is whether the minority candidate of choice in the 
Democratic Primary is prevented more often than not by a" Democratic 
white bloc vote from being the party's nominee in the General 
Election. State Defendants' Post Trial Brief at 9. At the General 1  

Election stage the question becomes whether there ''is a pattern of 
substantial' desertion from the Democratic party by white voters to 
vote for a Republican candidate, thereby denying victory to the 
minority candidate of choice. Id. at 10. This Court-finds such 
a distinction unimportant. Assuming the first two elements of the 
Ginqles test are met and the Senate factors point to vote dilution," 
it is unimportant whether a white bloc vote, which is sufficient - 
absent special circumstances - usually to defeat the minority's

79



preferred candidate, takes place at one election stage, both stages 
or by Democrats or Republicans.

43. The issue of partisan voting was before the Supreme 
Court in Gincles. The Court had no difficulty concluding that 
voting polarized along racial, not partisan, lines. Singles, 478 
U.S. at 61-62. Party affiliation, is^s.imply;. irrelevant under the 
controlling law. Further, "the addition of irrelevant variables 
[to regression or statistical analysis] distorts the equation and 
yields results that are indisputably incorrect under § 2 and the 
Senate Report." Id. at 64.

" " ' ~ ' Statistical ~ ~ * ... .
1 4 4 . : The complete data set used by Dr. Engstrora in Harris 

and Dallas Counties was used by Defendant's expert, Dr. Taebel for 
his analysis Of those Counties.. Dr♦ Taebel' s data,set for analysis, 
in the other_seven counties appears to be very similar. He did 
drop homogeneous precincts from his analysis if; there was more than 
a ten percent (1 0 %) change :in precinct boundary census data since 
the 1980 Census counts. Dr. Taebel analyzed both primary and 
General Elections in not only minority -Anglo contests, but also 
minority Republican candidates opposed to white candidates and 
white - white contests. He also analyzed elections in which the 
minority preferred Candidate ran unopposed.: This Court finds that

80



unopposed election contests and white versus white contests are not 
germane in this Circuit to this Court's analysis. Westweqo 
Citizens For Better Government v. Westweao. 872 F.2d 1201, 1208 n. 
7 (5th Cir. 1989); Campos v. City of Baytown. .840 F.2d 1240, 1245
(5th Cir. 1988), reh'q denied, 849 F.2d 1240. cert, denied. ___
U.S. _____ (1989); Citizens For a Better Gretna v. City of Gretna.
834 F.2d 496, 503 (5th Cir. 1987) . - - • ---•-

. ; . - - CONCLUSIONS OF LAW ....
“1. This Court has jurisdiction pursuant to 28 U.S.C. § 

1331, 18 U.S.C. § 1432_.and 42 .U.S.C. S-1973C. Venue is proper in 
this District pursuant to 28 U.S.C. § 1400(b). 1 -----

2. It is settled in this Circuit that § 2 of the Voting 
Rights Act applies t o t h e  judiciary. Chisom :V. Roemer. 839 F.2d 
1056 (5th Cir.. 1988), cert. denied, sub nom. Chisom v. Edwards. 109 
S.Ct. 310 (1989) (Chisom I). However, it isclear that at-large 
judicial elections may not be considered per se violative of § 2 . 
Furthermore, the Court holds that § 2 applies.equally as well to 
State District Judicial elections ns it does to appellate 
elections . 32

“State Defendants argue that State District Judgeships 
cannot_be analogized to legislative or appellate posts, which by 
nature are characterized by collegial decision making. While the 
Court recognizes that State District Judges- function as sole,

81



Standard Under The Voting Rights Act
3. In Thornburg v. Ginqles. 478 U.S. 30, 106 S.Ct. 2752,

92 L.Ed.2d 25 -(1986), the Supreme Court construed Section 2 of the-4- 
Voting Rights Act, as amended, to require a three-part threshold • 
test to demonstrate a violation of Section 2. The minority group 
must be able to demonstrate that: (1 ) it is sufficiently large and
geographically compact to constitute a majority in a single-member - r-

cz i . ! t ; r  t'.r... • i\ ri i .'.-.zt . ' Tiiz n  v  2 c. n ~ l h

district { "Ginqles 1") ; (2) it is politically cohesive (-"Ginqles - - 
2"); and (3) 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 ("Ginqles 3"). Ginqles.

i - i g i  • ' T • - tt: • ' : • • • >  - .  1 u r  r
478 U.S. at " 50-52. Failure to establish any one of the three-

- ■ ' * '• ' '■* ’ * * ’ 1 ’ ' - • • . I }•'*- v.V _T

threshold criteria is fatal to Plaintiffs' case, r Overton; 871 F.2d
i (- cem . co w h i r r  r.hrr s • ;> . <>r pu i ;_Li

at 538. us n s U . y  large : I ‘ n-a-jor
'■ o r - i rt.-qu r ■■r.v-.nr.s a .r. i •••> m g  :c shot, provis ior.- . j l ner vot
F4. However, Plaintiffs do hot achieve victory by satisfying!-' 

the three Ginqles factors alone. Monroe v. City of Woodville. No. r 
88-4433, slip op. at 5571, (5th Cir. Aug. 30, 1989). Instead,
Plaintiffs must prove under the totality of the circumstances that

independent decision makers, the Court concludes that there is no 
indication that Chisom's extension of § 2 to judicial elections was 
meant to be limited to collegial judicial bodies.

82



as a result33 of the challenged at large system Plaintiffs do not 
have an equal opportunity to participate in the political processes 
and to elect candidates of their choice. Id. at 5571; Ginqles. 478 
U.S. at 44. The Senate Report which accompanied,the 1982 amendment 
to § 2 specifies certain objective factors which typically may be 
relevant to a S 2 claim . 34 S.Rep. No. 97-417 (1982) (hereinafter

33 In White v. Reqester. 412 U.S. 755, 93 S.Ct. 2332, 37
L.Ed.2d (1973), the Supreme Court applied what has come to be„known 
as the "results test" indicating that a violation of § 2 could be 
proved by showing discriminatory effect alone. (Emphasis added.) 
Congress made clear by the 1982 amendment to § 2 that the "results 
test" is the relevant legal standard to be applied by this Court.-

34 Typical factors jLnclu.de-:— ....  - .....- r . r -
"1 . the extent of any history of official

discrimination in-the state ox political subdivision that touched 
the right of the members of the minority group to register, to 
vote, or otherwise to participate in the democratic process;

"2 . the extent to which voting in the elections of the 
state or cpoli-tical subdivision is racially polarized; ; ficc:.

"3. the extent to which the state or political 
subdivision has used unusually large election districts^ majority 
vote requirements, anti-single shot provisions, or other voting 
practices or procedures that may enhance the opportunity for 
discrimination against the minority group;

"4. if there is a .candidate slating process, whether, 
the members of the minority-group have been denied access- to that 
process;

"5. the extent to which members of the minority group 
in the state or political subdivision bear the v effects - of 
discrimination in such areas as education, employment and health, 
which hinder their ability: to participate effectively in the
political process; ..

i : u "f> • whether political campaigns have been characterized
by overt or-subtle racial appeals;

"7. the extent to which members of the minority group 
have been elected to public office in the jurisdiction.

83



S. Rep.). This list of factors is neither comprehensive nor 
exclusive . 35 "There is no requirement that any particular number 
of factors be proved, or that a majority of them point one way or 
the other'. """Singles, supra. at 45 Tempting S.Rep. at 29].

. 5.-’ Singles 1  requires proof that the minority population 
is sufficiently large and geographically compact to constitute a 
majority in a single member district. Gingles. supra, at 50. To 
satisfy-the Gingles 1 requirement, Plaintiffs must be able to draw 
a single member district in which a majority of the voting age 
population is minority. Overton. 871 F.2d at 535. Plaintiffs 
have satisf ied-“this ' requirement with regard to all of the nine_ 
target"counties at issue in this Case. The minority population 
is sufficiently large and geographically compact t o ,constitute a 
majority in at least- one single-member district; Black, Hispanic 
or combined, in each, of the nine counties at issue in this case.

t.‘ ! - * ri * : ' .l I '• »Ti ' 1 ; /- r
i- "Additional factors that in some cases have had probative 

value as part of fP]laintiffs ' evidence to establish a violation 
are: -.ar-.r. - . : r.n. si:-::is v .. i ;; ----- _

"whether there is a significant lack of responsiveness 
on the part of elected officials to the particularized needs of the 
members of the minority group.

"whether the policy underlying the state or political 
subdivision's use of such ... voting practice or procedure is 
tenuous." S.Rep. 417, 97th Cong., 2dSess. 28-29 (1982), reprinted 
in 1982 U.S.Code Cong. & Admin.News 177, 206-207.

S. Rep. No. 97-417 (1982).

84



6 . Evidence of racially polarized voting "is the linchpin 
of a ection 2 vote dilution claim," Citizens For a Better Gretna 
v. City of Gretna, 834 F.2d 496, 499 (5th Cir. 1987) and is 
relevant to establishing two of the three elements set forth in the 
Ginales decision - the minority groups political cohesiveness 
(Gingles 2 ) and the ability of the white majority usually to defeat 
the minority's preferred candidate (Gingles 3). Westwego Citizens 
For Better Government v. Westwego. 872 F.2d 1201, 1207 (5th Cir. 
1989) fciting:Gingles,-supra, at 56]. These factors are usually 
established by statistical evidence of racially polarized voting 
by the voters in the relevant political unit.~ X!ampos v. City of 
Baytown, 840 F.2d 1240, 1243 (5th Cir. 1988), reh'g d̂enied. 849 
F.2d 1240, cert. denied. ____ U.S. ____  (1989). '

7. In analyzing statistical data, the best-available data 
for estimating the voting behavior of ;various groupsJ in the 
electorate would come from exit polls conducted upon a random 
sample of voters surveyed as -they leave the polling place on 
election day, but such evidence was not introduced at trial. See 
Chisom v. Roemer. No. 86-4057, slip op. at 11 (E .D . La. Sep. 13, 
1989) (Chisom II  ̂; Defendant-Intervenor Wood's Ex. 40. The best 
available data for estimating the participation of various groups 
in the electorate is sign-in data contained in the official records

85



of registered voters. ~ Chisom II, slip op. at 12. The best
indicator of participation is obtained by dividing the number of 
persons who signed-in to vote by the number of persons in the 
voting age population. Id. at 12. .......  ... ...  ...

8 . Absent an exit poll, sign-in data and voting age
population data, . analysts employ the bivariate - ecological 
regression technique to estimate the voting behavior of various 
groups in. the electorate . 36 Id. at 12. . . .......

9. -riFor purposes of political cohesiveness and racially 
polarized voting, examining only those elections that had a 
minority-member as a candidate, is the proper method of analysis. 
Campos. 840 F.2d at 1245. In order to.^show cohesion,::t.he "proper 
standard is the same as Ginqles; whether the minority group 
together-votes in a cohesive manner for the r.minority; candidate. 
Id . 37 ,:In counties where-Plaintiffs proceed on behalf of a combined

36 Like the Court in Chisom II, this Court is not convinced 
that precise correlation between the race of voters and their 
voting preferences can be made on the basis of the statistical 
analysis presented. However, no better data is provided, and the 
Court has given the statistical data considerable weight. See 
Chisom~II7 -slip op. at~13.

37f The Court in Campos rejected the City of Baytown's argument 
that in order to show cohesion when there are .two minorities that 
make up the minority group, Plaintiffs must show first that Blacks 
are cohesive, next, that Hispanics are cohesive .and finally, that 
Blacks and Hispanics together are cohesive. Campos, 840 F.2d at 
1245. prefer:“.

86



minority, if the statistical evidence is that Blacks and Hispanics 
together vote for the Black or Hispanic candidate, then cohesion 
is shown. Of course, if one part of the group cannot be expected 
to vote with or does not vote -with the other part, the combination 
is not cohesive.- id. - . ; : l h--

10. --In evaluating the -statistics necessary for Plaintiffs 
to prove racial bloc voting, this Court is bound by recent Fifth 
Circuit^authority to consider statistical' .evidence from judicial 
elections and from exogenous elections. ? 8 o.'. lh».- C • ■.> ■ ce­

ll.. This Court is satisfied that the statistics relating to 
exogenous elections in the present case qualify as a sufficiently 
"local appraisal" to establish some degree of racial bide voting.

12. This Court concludes under the controlling law that the 
statistical' evidence >: furnished by the -expert witnesses j.for 
Plaintiffs3and Plaintiff-Intervenors to be legally competent and 
highly.probative. Ginqles, 478 U.S. at 52-54; Overton. 871 F.2d

See Chisom II. slip op. at 40; Citizens for a Better 
Gretna, 834 “F.2d at 499. "Exogenous" elections are those which 
overlap the boundaries of the relevant unit. -"Exogenous" elections 
are contrasted"with "indigenous" elections which involve only^the 
geographic unit at issue. Westweqo. -872 F.2d at 1206 n. 10. 
County-wide elections represent the relevant geographic unit in the 
present-case.

87



at 537-540. 39

13. The final determination, h o w e v e r m u s t  be made by an 
evaluation of the "totality of the circumstancesincluding the 
factors listed in the Senate Report. Westweqo. 872 F.2d at 1206. 
The Court must determine, on the basis of a "searching, practical 
evaluation," of past and present reality whether the political 
process is _ open to minority voters. Gingles. 478 U.S. at 45
fquoting S^Rep. at 30, U.S.Code Cong. & Admin.News 1982, p. 208]. 
Such a determination is dependent on the facts of each case and 
requires "an intensely local appraisal of the design and impact of 
the contested electoral: mechanisms.,"—  Gingles . 478 U.S.^-at 79 . 
fquoting Rodgers v. Lodge. 458 U.S. 613, 621, 102 S.Ctv 3272, 73 
L.Ed.2d 1012 (1982)]. The appraisal in this case must be
conducted on a district^-by-district basis. Gingles, supra, at >59
n. 28 (the inquiry into the existence of vote dilution is district 
specific).- . ■ .- i .•• •. 5 • ..... t - •

1 4 .  This Court recognizes that judicial elections are 
characterized by less voter interest than high profile candidates 
receive at the top of the ticket. However, under the controlling

39 . Unlike the statistical analysis in Overton. Plaintiff and 
Plaintiff-Intervenors' experts in the present case established 
confidence levels of statistical significance and used consistent 
measures of minority voting strength. Overton. 871 F.2d at 537- 
540.

88



law, party affiliation, straight party ticket voting and campaign 
factors do not constitute legally competent evidence in the present 
case. This Court rejects the State Defendants' argument that there 
can be no "functional view of the political process" without taking 
into account political party as the principal factor affecting such 
races.; ™The Supreme-Court .in Ginqles made clear that it is the jn 
difference between choices made by blacks and whites alone and,note I id 
the reasons why they vote dif ferently that eis the central inquiry:: a}
of § 2. Ginqles. 478 U.S. 61-62.

15. Congress and the Courts have recognized that "political 
participation by minorities tends to be depressed where minority 
group members suffer effects of ■ prior discrimination such as • ê r. 
inferior education, poor employment opportunities, and 1 o«l „ -K7d 
incomes. ud Ginqles. .478 U.S. at 69-dCongress clearly concluded 17 *r- \ 

that provisions such as majority vote requirements, designated 
posts, and prohibitions against bullet i: voting could serve uto*r ion* 
further dilute the voting strength of minorities. Id. at 56; Jones 
v. City of Lubbock. 727 F.2d at 383 (finding that majority vote 
requirement further submerges political minorities) . .'.y p . - i s c c

16 . : nThis Court concludes that under^ the relevant law the 
at-large system for election State District Judges- in the nine Li- 
target counties interacts with social and historical conditions to b-v-f

89



cause an inequality in the-opportunity enjoyed by black and white 
voters to elect their preferred candidates. Ginqles.478 U.S. at 
47.

17. Defendants' lead expert, Dr. Taebel reviewed many 
election contests which the. - Fifth--Circuit determined -are not 
germane to Voter Dilution.C a s e s D r .  dPaebel analyzed races in 
which Anglos opposed Anglos. Campos v. City of Baytown. 840 F.2d 
1240, 1245 (5th Cir. 1988). Dr. Taebel also reviewed non-judicial-, 
elections. v . ' •••; . ■••0 "

IB. Costly reorganization of the State at-large system of 
general and specialized Courts and disruption of County 
administrative duties such as jury selection are not— sufficient 
grounds for maintaining an otherwise flawed system. Westweqo, 872 
F.2d at 1211 Tin reliance on Dillard.v. Crenshaw County. 831 F..2d 
246, 250-51 (11th Cir. 1986)]. , :.vl b o d y  a!.: a - .

19. Congress did not contemplate that such considerations.'
would play a role in determining whether there has been a violation 
of section 2r Id. at 1210-11. ...

20. On the strength of the evidence of racially polarized 
voting in the context of. the.-i "totality of-the circumstances” test 
and considering the substantial evidence presented by Defendants 
to the contrary, this Court concludes that Plaintiffs -have

90



demonstrated a violation of § 2 of the Voting Rights Act in each 
of the nine counties in question. W e s t w e g o 872 F.2d at 1203 & 
1209. - ------

' "fourteenth and Fifteenth Amendment Claims .
21. — Proof of racially discriminatory-intent :©r purpose is

required to show a violation under either the Fourteenth or 
Fifteenth ̂ Amendment to the United States Constitution i Ghisom II, r 
supra, at 41 [citing: Kirksey v. City of Jackson, Miss. . 663 F. 2d
659 (5th Cir. 1981); Washington v. Davis. 426 U.S. 229, 239-41 
1976) ] .

22. Proving racial'discrimination as the motivating factor
in a state legislative body "is often a problematic undertaking." 
Hunter- v. Underwood; r.471cU.S..-. 222^ 227-2& (1985).. aProof must be 
presented that the legislative body as a whole possessed the intent 
to discriminate. Id. at 229-32. I t cis impossible to conceive
that four leading minority members of the State-Senate would vote 
to send an individiously discriminatory measure affecting the 
entire state to the voters with their own seal of approval on it.

23. Plaintiffs and Plaintiff-Intervenors failed to prove, 
as a matter of law,that the present at large system for electing 
State District -Judges in the State of Texas was instituted with the -

91



specific intent to dilute, minimize or cancel the voting strength ~ 
of Black and/or Hispanic voters.- Accordingly, the Courtds of~the 
opinion that the following Orders are appropriate: - ■ - - -..-

IT IS ORDERED that the present at-large system of electing 
State District Judges in the counties of Harris, Dallas, Tarrant, 
Bexar, Travis, Jefferson, Lubbock, Ector and -Midland ^violates L 
Plaintiffs' civil rights by unconstitionally diluting the voting 
strength of Hispanic and Black electors in violation of Section 2 
of the Voting Rights Act of 1965, as amended, 42 U.S.C. S 1973 
(West Supp. 1989).' • .

IT ISn FURTHER ORDERED that Plaintiffs 'and Plaintiff-
Intervenors request to Permanently _Enjoin the State of Texasdrom

~ -.gnest L = .• - '— -■-** thee: l o g y ,
calling, holding, supervising or-certifying anyifuture -elections

-ir ti^rr c*± ( tno dictinguishsd e.*«jwrts --
for State District-judges under dhe presentr-at large scheme inTthe

v ~ ip  i t  a i e u u i u  u i  a iG a o r s p n ie n ts  .
target areas is taken under ̂ advisment. QThe Court recognizesithe

r . • . -j - ' c ' t ! r-.  ̂ ’ . ’ * - ^ ___4- - y ~ — • - — i-'i ' -* ■•■■'•'i'v.-. wli . »Vv_ \_iO
possibility that corrective relief may be-available at ar dated date 
before future elections for State District Judges take place. 
Chisom v. Roemer. 853 F.2d 1186, 1189 (5th Cir. 1988).

The Court is hopeful that Governor Clements will include the
issue of an alternative State District Court election scheme as 
part of his call of the Special Legislative Session on November 13,

92



1989. Depending on the progress that is made in the Legislature, 
if any, prior to January 3, 1990, the Court will thereafter 
entertain a Restraining Order or Motion to Enjoin future State 
District Court elections pending the Remedy Phase of this 
litigation.

IT IS FURTHER ORDERED that the issues of Costs of Court and 
attorneys fees are expressly reserved until the conclusion of this 
litigation.

Chief Judge Charles Evans Hughes, in 1936, in an address to
the American Law Institute, said:

How amazing it is that, in the midst of controversies 
on every conceivable subject, one should expect 
unanimity of opinion upon difficult legal questions!
In -the — highest ranges of thought, in theology, 
philosophy and science, we find differences of view 
on the part of the most distinguished experts —  
theologians, philosophers, and scientists. The 
history of scholarship is a record of disagreements.
And when we deal with questions dealing with 
principles of law and their application, we do not 
suddenly rise into a stratosphere of icy certainty.

This area of the law is not a sphere of icy certainty. 
Should the Legislature fail to adopt a satisfactory Remedy in the 
Special Session (provided Governor Clements includes this matter 
in his call) this Court will consider the granting of an expedited 
appeal to the Fifth Circuit to determine whether or not the

93



Declaratory Judgment of this Courtaas properly made.
o KSIGNED AND ENTERED this day of November, 1989

jucius D. Bunton 
Judge

94



APPENDIX "A"
Plaintiffs' & Plaintiff-Intervenors' 

Statistical Analysis



■ J ;; i m  t  r ,RACIAL DIFFERENCES IN CANDIDATE PREFERENCES IN DISTRICT JUDGE 
ELECTIONS IN HARRIS COUNTY. TEXAS 

.a GENERAL ELECTIONS. 1980-1988
Prepared by Richard L. Engstrom, Ph.D

HOHOGENEOUS PRECINCTS ------ ---- 3IVARIATE REGRESSION- WITH CONTROL FOR HISPANICS
Year Black

Candidate
(Party)

X of Non-Black 
Votes

X of Black 
Votes Correlation

Coefficient
X of Non-Black 

Votes
X of

Black Votes
Partial

Correlation
X of Black 

Votes

1BB0 Bonner
(Daaocratlc)

38.6 96.9 0.822 37.8 103 0.909 98.4

1982 Janes
(Democratic)

35.6 97.5 0.799 34.8 104.2 0.B95 99.3

190 2 Routt (W) 
(Democratic)

38.5 98.1 0.798 37.7 104.6 0.896 99.9

1982 Ward
(Democratic)

34.7 97.7 0.801
)•

33.8 104.2 0.895 99.3

1984 Berry
(Democratic)

34 97.3 0.883 32.8 102.7 0.922 100

1984 Jackson
(Democratic)

30.6 97.7 0.880 29.3 103.5 0.942 100.5

19B4
(Democratic)

36.4 97.8 0.881 35.2 103.2 0.938 100.5

1986 Berry
(Democratic)

35.3 97.7 0.851

0.847

34.2 103 0.916 99.4

1986 Plummer
(Democratic)

37 97.9 36 103.1 0.912 99.6

1986 Proctor
(Republican)

52.8 4.6 -0.836 53.6 1.1 -0.899 3.9

1986 Walker (W) 
(Democratic)

40 98.2 0.847 39.1 103.3 0.882 99.9

1988 Berry
(Democratic)

32.8 97.3 0.860 31.1 103.1 0.897 99.4

1988 Fitch
(Daaocratlc)

36.9 97.7 0.849 35.4 103.4 0.836 99.7

1988 Jackson
(Democratic)

33.4 98 0.856 31.8 103.9 0.928 100.1

f PUIMTJFPS^
KWHWDWIHlT

X



1 1 1 . I i , i . ' F . l ’ i ! . r !  I L V  I 3  i  t i j ' a * ! / '
’■ V.. : I am I9f1! : !

19B6 Lea
( D t a o c r a t l c )

39.2 98.2 0.649 37.7 103.8 0.92 100.3

198ft P lu a a t r  
( D em ocrat ic )

34.3
1 i 1

97.4
J (1 <4

0.850
r >  1

32.6
; 1, t 1 l . l —  , : ■)

103.9
; i ; : j i

0.924
i i 1 -ini*

100.1

12 6ft Spencer
( D a a o c r a t lc )

3ft. 3 98 , ■■ 0 . 8,421 , -I. ; > * . « ,  . 103.7 0.917 100.1
( 7!» i;.. .«' • n •. !■)

•V i1 1 * ' r  < l'. ‘ . j 1 r.i 1 ui 1 '..it .11 1 I I

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i

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2 -



I I I . I l l

BLACK JUDICIAL CANDIDATES IN HARRIS COUNTY, TEXAS 
YEARS I960 - 19B8 « ]

. 'ii < t Li ■ . 5 'll1' v

'  1 I a  *  i r

Y w  Election
1980 Primary Judela1 Election

1980 General Judicial Election

1982 Prleery Judicial Election John Ja

Name
t i: • ,. 1 i

Alice Bonner
. II

Janes Mill drew
: l - . i

Won
.1,: 11 1 Fred Reynolds

ill : 
.■ 1

Lost
. ; . IT t

Alice Bonner Lost
‘I.i; tJames Muldrow 1 '■ : Lost

1982 General Judicial Elect 1m

. 1  1  ' ■  • <iJanes Mu Id row
John Peavey
Thcanaa Rou t t
Clark Gable Viand
John James■i. i i;
James Mildrow |

Outcome Section!; :..i ■ ■
Unopposed Both State District Court (civil)

fo'v | i, l i l . i ' j  . V  f . l  I D i l l  j l  ( i  ' H i " ,  .i .
County Criminal Court No. 6

hji i  ,1 ;  ! - Im l i  i i  C, a . r  I I
County Criminal Court No. 10

I . ii , i: , ; i . i l l '  ‘ i . .  ' i l l  a :, l r . i '  J ■ I
Both State District Court

ill-. I| I C a. i . I . ’ -. . r > *'• il*
80th County Criminal Court No.6

|! . ' . I *!■Unopposed 262nd State District Court (criminal court)
U 4; I a t . i  .in "I i . i ' /  Cia.-rUnopposed County Criminal Court No. 6

•••. < . i ! I , .  i ■ v  r : l ..Unopposed 246th State District Court (family I s m )

Unopposed 208th State District Court
.1 . I . > .1,. r . ' I:t . l IUnopposed 281st 8tate District Court (civil court)

,, U»t 262nd Rtate pis^rlpt,(Jpurt (criminal court)
D ôst County, Criminal Court, No. 6

Note
an Incumbent

had been appointed; ran >m lranmbent

John Pqau/y ; | ] GfJnoppgeed 246th Jtat<t QV*Xfilclt, Q»Wt (family law)
11 Thomas Routt j : Mem 208th Rtate Dlslrlpt, Court (criminal court)

I Clark Gable Ward tost 281st State District Court (civil court)
1984 Primary Judicial Election Weldon berry 1 IJWioppasad 80th State District Court (civil) Incumbent

i 1 ,, Carolyn D. Hobson ’made runoff i i.r n. • -d , . i ■County Civil Court at Law # 3 . I;

■ Freddie Jackson ' made runoff 178th Stats District Court (criminal) • . 1'

Shel la J. 'toe vibn 215th State District Court (civil)
Kenneth Levi Lost 333rd Sfcgte piatplgt, Cwpt (plvll)
Jim Muldruw Lost 351th Stats District Court (crlalnal)

1984 Runoff Election ■ i ,iCarolyn D. Ilobsop Wirt [, ..... i •, ': • .j u» i. ... -.ii 1 'iCounty Civil Court # 3
».i,. 1 r tFreddie Jackson Won r: va .178th Stats District Court (criminal)

1984 General Election Walden Berry Lost 60th $tata District Court (civil)
'i

Incumbent

-1- i 1

had been appointed; ran as Incumbent

) ':r



I ; b n: ii l. *3 (

1 in (»)
Carolyn 0. Hobaon'■> Loat 1
Freddie Jackman ‘ Lout 1
Sballa< J. >Laa •' • (0, Loat

1M6 Primary Election Barry Malden (0) D, Unoppnaad
< Freddie Jackaon (D) Loat

Cheryl B. Irwin (R) Uhoppoeed
Raymond Flatter (D) Men
Bomla Fitch (D) 1 1 Uboppoaad
Hobaon, Carolyn (D) lluppaad
3 H la  l a  "L . J a c k a o n  t i l l Mon
John Paavy (D) Utttppoaad

i i 1! Matthew Pliramr, Sr. (D) Uhoppoeed
Mamie Proctor (R) 
Reynold*, Fred (D)'

UhqppQ aad

Themae H. Routt (D)
■t ' ! |.‘ I . ?' 1

Carl Melkar, Jr. (D)
Unoppoaad

Franc la Mllllaaa (D) Unoppoead
IMS R u n -o ff Frad Raynolda (D) loat

Carl Mtllcar, Jr. (D) Moq
1988 Judicial Flection* Carl Mallear, Jr. (D) Mon

Carolyn D. Hobaon (D) Mon
Hatthaw Plimner Sr. (D) Loat

Bomla Fitch (D) Loat

Rayaund Flahar (D) Loat
Malden Barry (D) Loat

■ v .1! I V i I l Ml . i , ■ 1 . 1 . 1

County Civil 0ourt'>al Law » 3 
178th Stata Dlatrlct'Court (criminal) 
215th Stata Dlatrlct Court (civil)
281 Civil Dlatrlct; ‘ M

bx i J.'....111 ;•

: u. .

295 Civil Dlatrlct ‘ " 
County Criminal Court * 3 ''

Loat to Frank 0. H.lte

County Crlmllial Court * 14 won ervur lllu(unlc, Angel Fraga
County Criminal'Court M 13 1 
County Civil Court # 3 ' 
Probata #-4- '• '■ '• ;

Incumbent

Stata Family Court ‘246 1,111 Incumbent
133 Stata Civil '* 111 " 1 Incumbent 11 ljl ■ * 1 " '
Stata Family * 245 1 
County Crlmliml'court No. 11

1 . ; ■ "1 m| i 1 ; ’

: , i i* . ■ J •. 1 i.. |

made It' to runoff, era of five candldatua 
running for County Crlm. Ct. No. 11.

Stata Criminal Court 208 Incumbent
Stata Criminal 85 nude It to run-off
County Criminal Court # 4 litcumlant
County Crlmlnlal Court No. 11 Loat to David Mendoza In run-off; 

Mendoza eventually won.
Stata Crlmlnlal 85 Won agalnut Sallnaa
Stata Criminal Court 185 Mm over George Godwin
County Civil Court 3 Mon ovef) /U len ltugl.ee
133 Stata Civil Incumbent

County Criminal Court 13
loat to Lamar McCorkle 
Incumbent
Loat to Mark Atklnuon

County Criminal Court 14 Loat to Jim Barkley
, 1 281 Stata Civil Loat to Uiula Moore
1

2--



Francis Williams (D)

S « 1 U  J. pea (DĴ  

Mamie Proctor (R) 
Chtryl K. Irvin 
Thomas H. Routt, (D) 
John W. Peevy (D)

lSMPrlamry Klmctlon Ban Durant
Bonnla Pitch 
Raj acnd Flahar 
Hut thaw W. Pli— tur 
Malden Barry

\ Beverly Spencer
Freddie Jackaon

1M8 General Klactlan Bonnla Fitch
Shall* J. Lm  
Matthaw W. Iliaaar 
Malden Barry 
Beverly Spencer
Fraddla Jackaon

. : ,  t < „ |

Lost County Criminal Court 4
!;• i.v :,w>r i J .c .-!• :,t ,j

Last
|
i; Probata # 4, isj> '• 1:1 li in • li i!t:».

Lost- \ ■
State Family Court 245

Lost County Criminal Court 3
Unopposed State Criminal Court 208!■' '■<!
Ur*4JfXM»ad State Family Court 246
Lost 174th Civil District Court
Unopposed 132nd Civil District Court
lost 177th Criminal District Court
Unopposed 133rd Cli/11 District Court
Unopposed 80th Civil District Court
Won 1 333rd Clyll District Court
Won 213 Civil District Court
Lost 152ml Civil District Court
Lost 295th Civil District Court
tost 133rd Civil District Court
tost 80th Civil District Court
Last 333rd Civil District Court
Lost 213 Civil District Court

Incumbent
Lout to J<fn»̂ a E. Amiarsen

lout to Bill McCulloch
1 ; r! iLout to Usury Schubla* , . M t t M ( j

Loot to Jimmie Duncan

incumbent

lncumljHnl

run against Greg Glass 

ran against Miron Lova

ran against Jack O'nail 

ran against Dan Desnay 

ran against Lamar McCorkle 

ran gainst William R. Powsll 

ran against Davie Wilson 

ran agalp^t Gena Chambers



x._; ;.g
;• ", c -

Black 
Candidate 

Vear (Party)

Homogeneous Precincts

X of Mon-Black X of Black 
Votes Votes

: d  ^I J £ £  
O

1980 Winn
(Dem)

39.7 i 98.1

1984 Baraka
(Rep)

60.6 l 0 3.5

1984 Tinsley
(Dem)

30.0 97,4
‘i 0

1984 White
(Dem)

31.9 97.5
i ■■ i)

1986 Tinsley
(Dem)

37.5 98.3;

1986 Wright
(Rep)

70.6 4.3

1988
==>,

Oliver
(Dem)

37.9 98.3

C > 5 I J ; V ' l T . x  ; C C ■,'! : i |
A V ! jij;! 4iip»:n ?D|JS , 'm ;:i ,c I ; 1

DALLAS COUNTY /oi ‘ * 1 .
i‘ J t -liJ V..L _xJ:l:±!:!;!lG.:!.. .

AWM.YSIS OF JLOICIAL ELECTIONS

Bi-variate Regression With Control for Hisponics
Correlation
Coefficient

X of Kon-Bleck 
Votes

X of Black 
Votes

Partial
Correlation

X of Black 
Votes

.865 38.6 100.5 : :-i J .912 97.2

-.894 61.8 -0.5 -.932 2.8

.902
J

28.7
(i >

103.2 .943 99.2

.902 30.6 103.1 .944 99.1

i .677 36.6 i 104.6 .923 100.6

-.872
i i . ’
71.7

1 i..1 i, i
-1.5 -.916 2.8

I
.664 36.9 104.3 .913 100.2



r

i ; i ?in /• . i <. . . . . . . . . .  ■

i
1 )0 :>■ \'-i ,!<’ 

•: u;: 131,1 i?(2
A i : o '

ESTIMATES OF EiHNIC GROUP VQTNG IN BEXAR COUNTY DISTRICT COURT ELECTIONS: 1982-1988

« . M. 1.

ft*
' ■ tiM;
ii n r  | O  r:

*  *1

Bivariate 
Pearson r 

Sin.

Regression Analysis 
Estimates for: 

HispanicslNon-Hisoanics

Homogenec 
90-1 00%
Hispanic

us Precinct Est. 
9 0 -1 0 0 % 

Non-Hispanic

Are ethnic 
groups 

polarized?

Does 
Hispanic 

choice win?1982 General E lection 7 1:: 4 'J
D i s t r i c t  C o u r t  # 1 4 4

0CO1 . J •’ 1 t'j
YES KD

Barrera (Hispanic) . 0000 1 7 77 24 74
; Slohlhandski 83 23 76 26

Total :i 100 100 100 1 00 ,
D i s t r i c t  C o u r t  it2 9 0 .87 YES hD

Delgado (Hispanic) .0000 103 1 8 92 2 1
Berchelman - 3 82 8 79
Total 100 1 0 0  i 1 00 " 100

1984 General E lection
D i s t r i c t  C o u r t  i t3 7 .87 I c !

YES ND
Davila (Hispanic) . 0000 1 04 26 73 35

Cornyn - 4 74 27 65
Total 100 100 1 00 1 00

1986. General E lection I
D i s t r i c t  C o u r t  i t2 8 5 .88 YES ND

Cisneros (Hispanic) .0000 95 1 2 88 22
Peeples 5 88 1 2 78

Total 100 100 100 100
1983 General E lection
D i s t r i c t  C o u r t  # 7 3 .87 YES YES

Mireles (Hispanic) .0000 106 35 93 37
Bowles - 6 65 7 63

Total 100 100 j 1 00 1 00
D i s t r i c t  C o u r t  # 2 2 5 .86 I. YES ND

Serrata (Hispanic) .0000 1 03 28 9 1 33
Specia - 3 72 9 67

i otal 100 1 00 100 100

i



V V -

E S TIM A TE S  O F E TH N IC  (3R O U P Y O T I NG IN TA RRANT C O U N 'fY E L E C T IO N S  1 9 8 6 - 1988
: J Partial r Repress ion Estimates Homogene ous Estimates Are ethnic groups polwized? Does Black

i Black Anglo Black Anglo B/A choice win?
1986 G en era l E le c tio n
Critn. f irs t. C rt. F f  4 .87
Selvent (Black) 7 46 6 41 NO NO
Drago 93 54 94 59

TotaJ 100 100 • 100 100
Crisi. f irs t. C rt. P i  f -.80
Stums (Black) 15 49 11 44 NO NO
Goldsmith 85 51 89 56

Total 100 100 100 100
1988 Dec* P rim ary (
P res id en t .93 < ~J> 1 1 .) Is "i1 VJ YES YES
Jackson (Black) 99 14 93 16
Gore+Simon+LaRouche+Hart+Dukakis 1 86 7 84

TotaJ 100 100 100 100
1988 G en era l E lec tio n < ro \

C rrn. f irs t. C rt. F i  2  i .90 - T*" r r j , \ YES NO
Davis (Black) 100 42 98 50
Dsuphinot • 0 58 2 50 '

TotaJ 100 100 100 100



ESTIMATES OF ETHNIC GROUP VOTING IN TARRANT CO. ELECTIONS 1982-1988

Bivariate Regression Analysis Are ethnic Does ‘
Pearson r Estlmai:es for: groups polarized? Black

Slq. Blacks Whites B/A choice win?
1982 Democratic Primary 
Co. C rim in a l Crt. P i i .82 YES NO
Hicks (Black) .0000 87 38
Coffee 13 62

Total 100 100 -
1986 Democratic Primary 
Co. C rim in a l Crt. P I 1 .76 YES NO
Ross .0000 57 1 1 -
Golflfeather+Ross+Pounds+Clark 43 89

Total
1986 General E lection 
Crim. D ist. Crt. P I 4 -6 3

100 100

. . .

salvant (B lack)- R .0000 3 ! 55 YES YES
Drago 97 45

Total — 100 100 ------ • .... ••• - •
Crim. O lst. Crt. P ! 1 -.6 0 " r

Sturns (Black) -  R .0000 9 57 YES NO
Goldsmith -  D 91 43

Total
1988 General E lection 
C rim in a l D ist. Crt. P I 2 .62

100 100

YES NO
C. Davis (Black) -  D .0000 103 40
Dauphlnot -  R -3 60

Total 100 100

Source: Numbers ore from  2:12 lyse s Conducted by Delbert Taebel, Deportment o f Urban Studies, 
Univ. o f Texas at Arlington

1 .1; i I 1.
* \ 1 it —

• I 'IvV
r

vL1______



r  \ \

: i; ' ; . .i j • i1 ■ ■ p’Mii :j; 'i 'c ••
ESTNV.ATES C*E ETriri c  g : ;o u ? v o iT s G  t r a y  i s  c o u : ; t /  e l e c t i o : :s :  ic e s

P&j^i-Jf
;

fv'tlliple Repress 
Hispwiics 1

on Est. 
Anglo

Homogeneous 
His ponies |

Precincts 
Anglo ,

Are ethnic groups 
polarized?

Does Hispanic 
choice win?

1SC0 D e n  P r .w y ^
P /s tr fc t  Court' F J < J .* C ..\l s/po NO
G ollerdo (Hispsnicj .0000 03 3-1 00 r-"?•-» i
fvfcCown / -1 >. 7i 66 14 03

lOtcd 100  1 100 100 10 0  '•
C o u n ty  C ourt-s.(-l.o t? , .4.OH I : wee1 L J NO

Gsrci? (Hisps-nio) .0000 05 33 00 J •' f ! ' ! 1
fh.llipS ;■ r*.i 07 10 63

ToteJ 100 10 0 100 100
C o u n ty  Cou.’T - o t - t o u ■ .00 YES NO

C:-stro (Hispc-nicj .0000 { f M 03 10  '
Kennedy (EtkidtJ+Hughes 23 v6 ',-jl HIv* 1 , i

ToieJ 100 10 0 10 0 100

fUUO ItTMAî j)
“TD

^ £  >  n
' 55ij
SI “< --2 .’’i
1 "I
■^r- J



I

ic. ; { *. i
E S T I M A T E S  O F  E T H N I C  G R O U P  V O T N G  I N  T R A Y I S  C O U N

B i v a r i a t e  R e g r e s s i o n  A n a l y s i s
P e a r  S o n  r  

S i d .
E s t i m a t e s ;  f o r :

Y  D I S T R I C T  C O U R T  E L E C T IO N S - 108  8
Homogeneous Precinct Est.
9 0 -"100 % 90- I 00S

1988  D e m  P r i m a r y
D is tr ic t  Court * 3 4 5 .36

-------- ------------- 1— >— —n r
• ! 1 •: j

G a l l a r d o  ( H i s p a n i c ) .0000 101 36 r i  86 3 7
M c C o v n  i - 1  i 64 14 63T o t a l
County C o u r t -o t -L a v ,8 b

100 1 00 1 00 1 00

G a r c i a  ( H i s p a n i c ) .0000 100 36 90 ■ j
P h i l l i p s 0 64 10 63T o t a l
County C o u r t -o t -L e v * 7

100
!

100 1 00 1 00

C a s t r o  ( H i s p a n i c ) .99 76 1 1 4 , :;63 1 6
K e n n e d y  ( B l a c k )  +  H u g h e s .0000 24 86

J  i
37 84T o t a l  r

• 1 

• J

100

i

100 100

■ i i j i ;

1 00:

Are ethnic 
groups 

polarizer)?

YES

YES

YES

N

Does
Hispanic 

choice v i  n?

N O

NO

NO

1 t 
! i

r i

•j •
Urn

j :  i  E X H I B I T
■ f .



PLA
IN

TIFF'S
EX

H
IB

IT
JT-

osl

Jj
r. /

c: i .orj :
• •» -I. : . 4 /. i.. i'i* : ' .n,iu> ,t'j I- »u:i ;JM,cn;..| s| M • .

E S llh tA T E S  OF ETHNIC G n O U P  VO TIN G  IK JE F F E R S O N  COU.TTY E L E C V lb r:^  197 2 -19 80I Portiof r f E t r . . _ _ II..-------— =  ---- ---—
S

1972 D em o cra tic  Prim ary  
J. * . F ., Pet. 1r F/. 2  
Freeman (Black) 
MttrelkTra/rier.+Leibold+PaJmus 

Total
1972 D em o cra tic  Runoff 
J. * . F., Pet. / ,  FA 2  
Freeman (Black)
Trwnen

Tola!
1974 D em o cra tic  Prim ary  
-A. c. P ., Pet. 2, FI. 2  
Freeman (Black)
Kwr+Knowles

Total
, 1974 D em o cra tic  Runoff
2. o. P., Pet. 2, FA 2  
Freeman (Black)
Knowles

Total
1978 D em o cra tic  Prim ary  
Ceunly Coart t  Cmtr, 2 /2

Davis' (Black)
St3es'-+fv1anes

Total
1982 D em o c ra tic  Prim ary  
•A *>. P., Pet. /, FA 2  
Cannon (Black)
McCassell+McCall

Total
1986 D em o c ra tic  Prim ary  
•A. v. F., Pet. I, ri. 2
Roberts (Black)
Robinson-tMcGinriis+Davis+Mller 

-ic^v Total
.» j P1988 D em o cra tic  Prim ary  

FresiJent 
jJackson (Black)
'-'Sore+Simon+laRc-uche+Hart-tOuki 

Total

^a/tial r ; ! Regression Estimates i li 
Black Anglo

Homogeneous Estime 
Black Anolo

.70
70

i !i
25 75 26

30 75 25 74
100 100 f 100 100

.66
85

i’.
: f' 

38 92 40
15 62 8 60

100 100 100 100

.75
83 26 89 25
17 74 11 75

100 100 100 100

.72
93 41 95 42
7 59 5 58

100 100 100 100

.97
10 93 13

16 90 7 87
100 100 100 100

.97
53 7 51 6
47 93 49 94
100 100 100 100

.93
47 2 40 3
53 98 60 97
100 100 100 100

.97
101 6 96 7

is -1 94 4 93
100 100 100 100

Are ethnic groups polanred? 
B/A

Does Black 
choice v/in?

ack I 
vin? |

YES

YES

YES

YES

YES

YES

NO

YES

NO

NO

NO

NO

NO

NO

NO

YES

-1-



TO
-L

i.' i; .0 , i  11! . I.J..
f *;'f,'• ,t: Ur'itJ:

J
i . -’i*:; ' l l : IWt ;

us E >iui<l i’£:.r i j  ! i -uu '•

ESTIMATES OF; ETHNIC GROUP' VOTING IN JEFFERSON 'COUNTY ^ L ^ E C T ld ^  'lsVz-lSR n 1,1 •; p.il i

'i960 Democratic Primary 
P res id en t \ .97
Jackson (Black) ,5 .0000 101
Gore+Simon+LaRouche+Hart+Dukakis1: -1

Total i i 100

Multiple Regression Analysis Homogeneous Precincts Are ethnic Does
Partial r Estimates for: 90-100% 90-100% 4 ( groups polarized? Black

Sin. Black | Anglo Black Anglo , B/A choice win?

6
94

100

I I II
YES YES

if96 5 4 
100

j

7
: 93
H 00 ; ;

.*vt € p. ■»i fin it, v?ir re ■ 111

i

i sr }i! II

iI



1
H;i 1 :!‘l* • i ■’ '•

; for 
Comb.Mr^*

99 
1

100

90
10

100
>0 (

35
65
100

Gonzalez (Hispanic) 
Howell+Scholz (White) 

ToteJ

94
6

100

90
10
100

37
63
100

Homogeneous Estimates 
Anglo C om b.M n*

E S T IM A T E S  OF ETH N IC  G R O U P  YO TH G  IN LU BB O C K  COUNTY E L E C T IO N S : 1986 -198S  
IF ertiiJ rl Regression E^tim*j|fcs
|_____ Hispanics Black Anglo

1986 G e n e ra l E lec tio n  \  ~  ^  ^*r*^
Supreme Ct. PL 4  .95/79  
Gonzalez (Hispanic)
Bates (White)

Total
1988 G e n e ra l E lec tio n  
Supreme Ct. PL S  .93/ 88

■I"tin’; !»!;.< I
c i

39'
61
100

40
60
100

1 0
91
9

100

1 & u 89
11
100

Are ethnic groups polarized
Comb. Mn/Anglo

VES

YES

Numbers in these columns were derived from bivariate analyses, all others from multivariate analyses.

Are Hisp. 8. Black Does Comb. Mn.
cohesive choice win?

YES

YES

NO

NO

i

i



)Ei; i K v.i i -Y  eLi.c].i«<i' iu  i j : :
■V' -t.;isi!i I Hon t ?■:.'j : p.

' )
I

ESTIMATES OF ETHNIC GROUP VQTNG IN 
Bivariate Regression Analysis 

Estimates for 
Anglo |Comb Min

LUBBOCK COUNTY GENERAL ELECTIONS: ' 1986 -1908

I .1 1; Hi

Pearson r
Sig.

Election1906 General 
Supreme Cl. PI. 4 
Gonzalez (Hispanic)
Bates

Total
1988 General Election 
Supreme Cl. PI. 3 
Gonzalez (Hispanic) 
Howell+Scholz 

total

.96
.0000

.94
.0000

Multiple Regression Analysis 
Partial r- H/8 Estimates for 
) ?ig.-H/B Anglo| Hispgnic | Black

rJ
.9S/.79 | i

II T-.) M

35 97 .oopo/.pooo 35 99 90 39 91
65 3 JUIH. 65 ! t 10 61 9

100 100 100 1Q0 100 100 100

,93/.88
I 1 Ov.V

■ i i OH

37 93 .0000 /0000 37 94 90 40 89
1163 7 . :)0C; 1 : 31 63 § 10 00

100 100 }00 .100 100 1Q0 too

x- j- * ‘I 7
I A\i. 0 1 ') ,

i : ■oc t:. : '.;.j i, -ilj:
, t.

s'

Homogeneous Precincts 
90-100% I 80-100%  

Anglo | Comb. Min

Are ethnic 
groups polarized? 
Comb. Min/Anglo

,l ,

Are Hisp. 
& Black 

cohesive?

Does
Comb, Min. 
choice win?

YES

YES

YES

YES

NO

NO

i .



' i i s
! ,l,v

I . C ' f . i  «N li'l;:.
M . I.

• I 1 ‘ ‘ I i . \ *i 'J-:? 1 Ov1
ESTIMATES OF ETHNIC GROUP VQTNG IN LUBBOCK COUn W  PRIMARY ELECTIONS

1986 Dem Primary 
Ct. Crim. App. PL 1 
Martinez (Hispanic) 
Dial+Duncan+Reagan 

Total
Supreme CL PI. 4 
Gonzalez (Hispanic) 
Ivy+Gibson-t-Humphreys 

Total
1986 Dem Runolf 
Supreme CL PI. 4 
Gonzalez (Hispanic) 
Gibson 

Total
Ct. Crlm . App. PI. 1 
Martinez (Hispanic) 
Duncan 

Total

Bivariate Regression Analysis 
Pearson r Estimates lor 

Siq. Anglo |Comb. Min

.97
.0000

.93
.0000

.87
.0000

.93
.0000

16
84
100

36
64
100

36
64
100

24
76
100

98
2

100

97
3

100

97
3

100

103
-3

100

Multiple Regression Analysis 
Partial r-H/B Estimates lor 

Stg.^H/B^ Anglo| Hispanic | Black

.98/.80
.0000/.0000

.95/.56 
.0000/.0015

.78/.66 
.0000/.0002

.88/.77
.0000/.0000

15
85

100

35
65

100

36
64

100

24
76

100

108
-8

100'.1

106
-6

100

97
3

100

105
-5

100

61
39
100

86
14

100

96
4

100

98
2

100

1986
Homogeneous Precinct! 
90-100% I 80-100% 

Anglo | Comb, Min

22
78
100

41
59
100

46
54
100

32
68
100

1 1
79
21
100

89
11

100

94 
6

100

95 
5

100

Are ethnic 
groups polarized? 
Comb. Min/Anqlo

Are Hisp. 
& Black 

cohesive?

Does
Comb. Min. 
choice win?

YES

YES

YES

YES

YES

YES

YES

YES

YES

NO

YES

NO

3-



-t
o 
-■

'1 . ■ «;■! •' : :&L.} f Olvl.i. 1: I.I.
a i ■ /:: n •'•. ,;:!y ; \‘ Tfieojl Pfpci id t.:',!: . : ! • i’. . I S

; ! lal ::
.....; JJ ' :1 ! 1

' i.i •. 
• T.f

■ • ..9i 1 . C i i '
'•0 111) Ivl ; ; ■:(

. . Ii i\1,i i 
: ; '-.mi

ESTIMATES OF ETHNIC GROUP VOTNG IN ECTOR COUNTY PRIMARY ELECTIONS: 1986
Bivariate Regression Analysis 
Pearson r| Estimates lor 

Sig. | Anglo |Comb. Min

Multi 
Partial r- H/B 

Sig.-H/B

ole Regression Analysis 
Estimates lor 

Anglo| Hispanic | Black

Homogenec
90-100%

Anglo

>us Precincts 
80-100% 

Comb. Min.

Are ethnic 
groups polarized? 
Comb. Min/Anglo

Are Hisp. 
& Black 

cohesive?

Does
Comb. Min. 
choice win?

1986 Dem. Primary
Supreme Ct. PI. A .80 .46/.71 YES NO NO
Gonzalez (Hispanic) .0000 11 53 .0381/.0002 13 42 65 14 50
Ivy+Gibson+Humphreys 89 47 87 58 35 86 50

Total 100 100 100 100 100 100 100
Ct. Crlm. App. PI. 1 .78 .50/.62 YES YES YES
Martinez (Hispanic) .0000 15 74 .0178/.0019 15 68 81 19 68
Dial+Duncan+Reagan 85 26 ' ' 85 32 ° 19 ' 81 32

Total 100 100 100 100 100 100 100

i ■' 9 l
"i v :.
1(1 I vO ■ ( i.

m



O' ] i ' ! ill i;: 11

ESTIMATES OF ETHNIC GROUP VOTNG IN MIDLAND COUNTY ELECTIONS: 1586
Bivariate 
Pearson r 

Siq.

Regression Analysis 
•Estimates for;

Ahqlo | 1 Comb Min.

Homogenec
9 0 - 1 0 0 %

Anqlo

jus Precinct Est 
90-1 00%
- Comb Min.

' Are ethnic 
groups 

polarized?

Does
Comb Min. 

choice win?
1986 General Election J . J M , f *;|i. ! " I; , >; I . n.
S u p re m e  Ct. PI. A .96 YES ND
Gonzalez (Hispanic) .0000 25 90 32 89 I: .

Bales 75 1 0 68 1 1
Total 100 1 00 100 1 00

1986 General E lection
J P  P I  1 .96 YES ND
Watson (Black) .0000 1 9 9 1 26 90
Jobe. 81 —  ,9 74 . 1 On. ,,

Total 100 100 1 00 1 00
1988 General Election
S u p re m e  Ct. PI. 3 .89 YES ND
Gonzalez .0006 34 85 37 9 1
Howell+Scholz 66 1 5 63 9

Total 100 100 1 00 100

1*1 -O'-L



ESTIM A TES OF ETHNIC  G RO UP YO TKG  IK M ID LA N D  CO U K TY E L E C T IO N S : 1906  -19 88
Sivarisdte f  
Pearsonr 

Sig.

tegression Analysis 
Estimates for 

Anglo IComb.Mn

NMlip 
Partial r- Hi 6 

Sig.-H/B

le Regtession Analysis 
Estimates for 

Anglo | Hispanic | Black

Homogeneo 
90-1 cost; 

Anglo

us Precincts 
80-100/8 

Comb. Ivin.

Are ethnic 
groups polarized? 
Comb Ivln/Anglo

Are Hisp. 
& Black 

cohesive?

Does
Comb. Ivin, 
choice win?

198b G enera l E lec tion
S*rpne*ie C t. P i. -f .96 .86.'.99 YES YES NO
Gonzalez (Hispanic) .0000 24 90 .oooo; oooo 24 105 78 28 85
Bales 76 10 76 -5 22 72 15

ToiaJ 100 100 100 100 100 100 100
1986 G en era l E lec tion
J F F /  f .96 .87/81 YES YES NO
Watson (Black) .0000 17 91 .oooo; oooo 17 106 79 21 85
Jobe 83 9 83 -6 21 79 15

ToiaJ 100 100 100 100 100 100 100
1988 G en era l E lection
Supreme Ct. Pi. 3 .96 84/.82 YES YES NO
Gonzalez .0000 34 91 .0000/.0000 34 99 86 37 86
Howell+Scholz 66 9 66 1 14 63 14

.Total 100 100 100 100 100 100 100



APPENDIX "B"
Plaintiffs' Re-Evaluation of 

Defendants' Statistical Analysis



PLAINTIFFS' RE-EVALUATION OF DR. TAEBEL'S REPORTS
DALLAS COUNTY

Page # of TaebelExhibit - Year Race
Did Whites & BlacksVote Differently?

Did BlackChoiceWin?

Judicial Elections With Black Candidates:
General Elections:
District Court:

1 1980 191st Dist Ct Yes No
21 1984 Cr. Dist. 2i Yes No
37 - 1984 301st Dist Ct Yes No
69 - 1986 256th Dist Ct Yes No
73 1984 195th Dist ct. Yes No
89 1988 95th Dist Ct Yes No

County court at Lawr-.-s- •

17 1982 ;rCo- Cr- 6 Yes No
Justice .of the Peace Court r; .None
Appellate. Court> None .j.-c Cou

Primary Elections:
District Court: _ _ ___ _

81 . 1988 ,Cr. Dist 2 [RP] No —  - Yes
County Court at Law: __ .... . .

13 1982 Co. Cr. 6 [RP] Yes No
Justice of the Peace Court: None 
Appellate Court: None

1



Judicial Elections Without Black Candidates:

General Elections: 
District Court:

5 1980 95th Dist Ct . Yes No
9 1982 191st Dist Ct Yes No
25 1984 Cr. Dist 3 Yes No
33 1984 162nd Dist Ct Yes No
77 1986 298tg Dist Ct Yes .. - -- No

County Court at Law:
Justice'of the-.:Peace'Court: None
Appellate -■Court •

•

65 i-- i  c i  v.K1986,-_...S-Ct. 4 Yes -- No
85 1988 S Ct 3 Yes Yes

Primary Elections: --- 
District Court: None

■ r '\ 1 Q r-‘ \ * i (; J ”'
County -Court .at Law: -None 
Justice of the Peace Court: None 
Appellate Court:

29 1984 Ct Cr App [DP] Yes No
41 1986 S. Ct. 4 [DP] Yes Yes
45 1986 Ct Cr App [DP] Yes Yes
49 1986 S Ct. 4 [DP-RO] No Yes
53 1986 Ct Cr Ap[DP-RO] Yes Yes

Non-Judicial Elections With Black Candidates: None

2



Non-Judicial Elections Without Black Candidates:
57 1986 Lt Gov Yes Yes
61 1986 Atty Gen Yes No

Judicial Elections with 
Black Candidates
Judicial
Elections without 
Black Candidates
Non-Judicial 
Elections with 
Black Candidates

SCORECARD
Whites/Blacks Black
Vote Differently Choice Win

8 of 9 1 of 9

" ll"'of 12 5 Of 12-

0- of OL i 0 of O' -- •
Non-Judicial 
Elections without 
Black Candidates • • T~ 2 of 2 1 Of 2 -



PLAINTIFFS' RE-EVALUATION OF DR. TAEBEL'S REPORTS
BEXAR COUNTY

Page # of Did Whites Did HispTaebel & Hisps. ChoiceExhibit Year Race _ .Vote Differently? Win?

Judicial Elections With Hisp. Candidates: 
General Elections:
District Court: -«■■ ■ ~ ■ -- - . . • u:- :

5 1980 187st Dist Ct Yes Yes
15 1982 144th Dist Ct Yes No
16 1982 290th Dist Ct Yes No
18 1984 „ 37th Dist^Ct Yes No
19 1986 .,285th Dist Ct. Yes n v.. No
25 1988 73rd Dist Ct Yes No
26 1988 225th Dist Ct Yes No

County Court at Law:
20 1986 Co. Ct. 4 '' ' Yes No
27 1988 Co. Ct. "2Ap( Li:?y!£ Yes

Justice of the Peace Court: None
Appellate Court:

4 1980 Ct App Yes Yes
28 1988 Ct App Yes No

Primary Elections:
District Court:

2 __ 1980 131 Dist-Ct[DP] Yes No
3 1980 187 Dist Ct[DP] Yes No

1



7 1982 285 Dist Ct[DP] Yes No
9 1982 285 Dist Ct[DP] Yes Yes
10 1982 288 Dist Ct[DP] Yes Yes
11 1982 289 Dist Ct[DP] Yes No
12 1982 290 Dist Ct[DP] Yes Yes
17 1984 37 Dist Ct [DP] Yes Yes
22 1986 150 Dist Ct[RP] Yes No

1980 187 Dist Ct[DP] No No
1980 131 Dist Ct[DP] Yes No

County Court at LaWJ l , . n, ; nn J. ; hh n,
13 1982 Co. Cr. 3 [DP] Yes NO
14 1982 Co. Ct. 4 [DP] Yes No
23 1988 Co. Ct. 2 [DP] Yes Yes

Justice of the Peace Court: None 
Appellate Court:

1 . 1980 Ct App [DP] Yes‘_- j ,• =r.-f; Yes
6 juaicA?®2 Ct App [DP-RO] Yes No
8 h 1982 .Ct- App [DP] Yes . ... .. No
24 ... 1988 Ct App [DP] Yes No

Judicial Elections Without Hisp. Candidates:

General Elections:
District Court:
County Court at Law:
Justice of the Peace Court:
Appellate Court:

2



District Court:
County Court at Law:

21 1986 Co. Ct. 5[DP] Yes Yes
Justice of the Peace Court:
Appellate Court:

Primary Elections;

Non-Judicial Elections With Hisp. Candidates: None 

Non-Judicial Elections Without Hisp. Candidates: None

i n.iii «c

SCORECARD
i • Whites/Hisps. Hisp.Vote Differently Choice Win

Judicial
Elections with co. ci . --Hisp. Candidates 28 of 29 9 of 29
JudicialElections without - - --Hisp. Candidates 1 of 1 1 of 1
Non-Judicial Elections with
Hisp. Candidates . w ;; - 0 of 0 -- 0 of 0
Non-Judicial Elections without
Hisp. Candidates 0 of 0 0 of 0

3



PLAINTIFFS' RE-EVALUATION OF DR. TAEBEL'S REPORTS
TARRANT COUNTY

Page # of TaebelExhibit Year Race
Did Whites & BlacksVote Differently?

Did BlackChoiceWin?

Judicial Elections With Black Candidates: 
General Elections:- --- w . ------- -—-- . - -
District Court:

29 1986 Cr. Dist. 1 Yes No
33 1986 Cr. Dist. 4l • *. Yes Yes
57 1988 Cr. Dist. 2 Yes No

County Court at Law: None 
Justice of the Peace Court: None 
Appellate Court: None

Primary Elections:
District Court: None 
County Court: at Law:r :

1 1982 -"Co. Cr. 1 [DP] Yes J v No
37 1986 ~ Co. Cr. 6 [DP] Yes ■=- No

Justice of the Peace Court: None 
Appellate Court: None

Judicial Elections Without Black Candidates:

General Elections:_____
District Court:

13 1982 233rd Dist Ct Yes Yes

1



17 1982 297th Dist Ct Yes Yes
21 1986 233rd Dist Ct Yes No
25 1986 325th Dist Ct Yes Yes
61 1988 17th Dist Ct Yes No

County Court at Law:
9 1982 Co. Cr. 4 Yes Yes

Justice of the Peace Court: None
— - •

Appellate Court:
49 1986 S. Ct. 4 Yes Yes
65 1988 S. Ct. 3 Yes Yes

Primary Elections: 
District Court: None 
County Court at Law:

5 1982 Co. Cr. 4 [DP] Yes Yes
Justice of 
Appellate

the
Court

Peace Court: None
•
•

41 1986 Ct.Cr.App. [DP] Yes Yes
49 1986 S. Ct. 4 [DP] Yes Yes

Non-Judicial Elections With Black Candidates: None

Non-Judicial Elections Without Black Candidates:
45 1986 Atty Gen Yes No

2



Judicial 
Elections with 
Black Candidates

SCORECARD
Whites/Blacks Black 
Vote Differently Choice Win

5 of 5 1 of 5
Judicial
Elections without
Black Candidates ...- • 11 of 11 8 of 11
Non-Judicial 
Elections with 
Black Candidates 0 of 0 0 of 0
Non-Judicial : - ! —  * - -
Elections without
Black Candidates 1 of 1 0 of 1

C -V.tl' ''' _1 _ •? ’ f
3 *• > m ij p

3



PLAINTIFFS1 RE-EVALUATION OF DR. TAEBEL'S REPORTS
TRAVIS COUNTY

Page # of Did Whites Did HispTaebel __ & Hisps. ChoiceExhibit Year Race Vote Differently? Win?

Judicial Elections With Hisp. Candidates;
General Elections:
District Court:
County Court at Law:
Justice of the Peace Court:
Appellate Court:

29 1986 S Ct 4 No Yes
45 1988 S Ct 3 No Yes

Primary Elections: 
District Court:

-----

37 _ 1988 345 Dist Ct[DP] Yes No

County ■1. i. y c 7 e nCourt at Law: N'

33 1988 Co. Ct. 1 [DP]" Yes No
41 1988 Co. Ct. 7 [DP] Yes No

Justice of the Peace Court:
Appellate Court:

1 1984 Ct Cr A [DP] Yes No
9 1986 Ct Cr A [DP] Yes No
21 1986 S Ct 4 [DP] No Yes
25 1986 S Ct 4 [DP-RO] No Yes

1



Judicial Elections Without Hisp. Candidates:

General Elections:
District Court:
County Court at Law:
Justice of the Peace Court:
Appellate Court:

49 ~ 1988 rS Ct 4 No Yes

Primary Elections:
District Court: - —
County Court at Law:
Justice of the Peace Court:
Appellate Courts________

Non-Judicial Elections With Hisp. Candidates:
5 1984 St Sen 14 No Yes
13 1986 Atty Gen No Yes

1984 St Sen [DP-RO] Yes Yes
1984 St Sen [DP] Yes Yes

Non-Judicial Elections Without Hisp. Candidates:

17 1986 Lt Gov No Yes

2



SCORECARD
Hisp.
Choice Win

Whites/Hisps. 
Vote Differently

Judicial 
Elections with
Hisp. Candidates 5 of 9
JudicialElections without 
Hisp. Candidates
Non-Judiciai 
Elections with 
Hisp. Candidates
Non-Judicial 
Elections without 
Hisp. Candidates 0 of 1

0 of 1 

2 of 4

4 of 9 

1 of 1 

4 Of 4 

1 Of 1

3



PLAINTIFFS' RE-EVALUATION OF DR. TAEBEL'S REPORTS
JEFFERSON COUNTY

Page # of TaebelExhibit Year Race
Did Whites & BlacksVote Differently?

Did BlackChoiceWin?

Judicial Elections With Black Candidates:
General Elections: - 
District Court: None 
County Court at Law: None 
Justice of the Peace Court: None 
Appellate Court: None

Primary Elections:
District Court: None
County Court at Law: None ____  ... ___
Justice of the Peace Court: None 
Appellate Court: None

Judicial Elections Without Black Candidates:

General Elections:
District Court: None 
County Court at Law: None 
Justice of the Peace Court: None 
Appellate Court:

10 1986 S. Ct. 1 No - - Yes
17 , .-.--1986 S. Ct. # 4 No Yes

1



Primary Elections: 
District Court: None
County Court at Law: None 
Justice of the Peace Court: None 
Appellate Court:

7 1986 Ct.Cr.App. [DP] Yes No
13 1986 S. Ct. 4 [DP] Yes Yes

Non-Judicial Elections With Black Candidates:
1 -1982- St.Rep 22 Yes Yes
4 ■ L j-3.984t -OStfRep 2 2  ' [ ‘ Yes Yes

Non-Judicial Elections Without Black Candidates:
19 1986 Gov.
22 1986 Atty Gen

Yes
No

Yes
Yes

__■ _  __ *; 7 . _

i r- LIT. c*1 . ................nr
SCORECARD

Whites/Blacks Black
• ; ! • -> ' .  C  ' ’ * 1 i •' !/'. * Vote'differently Choice Win

Judicial- ’ ; ! 
Elections with 
Black Candidates 0 of 0 0 of 0
Judicial
Elections without 
Black Candidates 2 Of 4 3 of 4
Non-Judicial 
Elections with 
Black Candidates 2 Of 2 2 of 2
Non-Judicial 
Elections without 
Black Candidates - 1 Of 2 — 2 of 2

2



PLAINTIFFS' RE-EVALUATION OF DR. TAEBEL'S REPORTS
LUBBOCK COUNTY

Page # of 
Taebel
Exhibit Year Race

Did Whites 
& Minorities 
Vote Differently?

Did Minority
Choice
Win?

Judicial Elections With Minority Candidates:
General Elections:
District Court: None 
County Court at Law: None
Justice of the Peace Court: None ____ ___  ^___
Appellate Court:

17 1986 S. Ct. # 4 Yes No
25 1988 s. c£. '# '3 Yes " No

Primary Elections: -- = —  ----- — ---  - • -— - - ---

District Court: None
j  s \ '  /"* /  DCounty Court at Law: None —

Justice of the Peace Court: None Wh.it- 3/HjJJ ' r> ■> f- f-

Appellate Court: None

Judicial Elections Without Minority Candidates: 

General-Elections:
District Court:- None  ̂ - --
County Court at Law:

1 1982 O o Ct. 1 Yes No
9 “T1986 Co. Ct. 2 Yes No

h - '  . •-> r~ \ * -  1 h  i (

1



Justice of the Peace Court: None 
Appellate Court:

21 1988 Ct. Cr. App. Yes No

Primary Elections: ’
District Court: None 
County Court at Law:

1 1982 Co. Ct. 1 [DP] No Yes
Justice of the Peace Court: None 
Appellate Court: None

Non-Judlcial-Elections With Minority Candidates:
13 <• 1986 : :'Atty Gen Yes V;-‘- No

Non-Judicial Elections Without Minority Candidates: None

SCORECARD

< ’'yC-LlULf ii ‘ • Whites/Minorities 
Vote Differently

Minority 
Choice Win

Judicial r— - r.-.- / - - - 
Elections with 
Minority Candidates 2 of 2 0 of 2
Judicial
Elections without 
Minority Candidates 3 of 4 1 of 4
Non-Judicial 
Elections with 
Minority Candidates 1 of 1 0 of 1
Non-Judicial 
Elections without 
Minority Candidates 0 of 0 0 of 0

2



PLAINTIFFS' RE-EVALUATION OF DR. TAEBEL'S REPORTS
ECTOR COUNTY

Page # of Did Whites Did Minority
Taebel & Minorities Choice
Exhibit Year Race Vote Differently? Win?

Judicial Elections With Minority Candidates:
General Elections:
District Court:
County Court at Law:
Justice of the Peace Court:
Appellate Court:

21 1986 S Ct
n r

4 Yes No
37 1988 s ct 3 Yes No

Primary Elections:
District Court:
County Court at Law:
Justice of-the Peace Court:---------- — ~
Appellate Court:

Judicial Elections Without Minority Candidates:

General Elections: 
District Court:

5 1980 161 Dist Ct Yes No
County Court at Law:

9 1982 Co Jud No Yes
13 1982 Co Ct Law No Yes

1



Justice of the Peace Court:
Appellate Court:

29 1988 S Ct 4 Yes No
33 1988 Ct App Yes No

Primary Elections:
District Court:
County Court at Law:
Justice of- the ^eace <tourt:
Appellate Court:

Non-Judicial Elections With Minority Candidates:
17 1986 Atty Gen Yes No

Non-Judicial Elections Without Minority Candidates:
1 1980 RR Com Yes No
25 1986 Lt Gov Yes No

2



V

SCORECARD
Whites/Minorities 
Vote Differently

Minority 
Choice Win

Judicial 
Elections with 
Minority Candidates . 2 . of. 2 0 of ,2
Judicial
Elections without 
Minority Candidates 3 of 5 2 of 5
Non-Judicial- 
Elections with 
Minority Candidates 1 of 1 0 of 1
Non-Judicial
Elections Without —  - 
Minority Candidates 2 of 2 0 of 2

2 5 -.-be 5 Ct
* »-r r~.

N o

"nr • • ------ ; i V- I

c- v . :

3



► 2

MIDLAND COUNTY
PLAINTIFFS1 RE-EVALUATION OF DR. TAEBEL'S REPORTS

Page # of Did Whites Did MinorityTaebel & Minorities ChoiceExhibit Year Race Vote Differently? Win?

Judicial Elections With Minority Candidates:
General Elections:
District Court:
County Court at Law:
Justice of the Peace Court: 
Appellate Court:

25 1986 S Ct 4 Yes NOl

29 1988 S Ct 3 Yes No

Primary Elections:
District Court:
County Court-at Law:
Justice of the Peace Court: 
Appellate Court:

9 1986 Ct Cr App [DP] "No-;; 7 " No
21 1986 S Ct 4 [DP] No "No

Judicial Elections Without Minority Candidates:

General Elections:
District Court:

1 1980 142 Dist Ct No Yes
County Court at Law: "■*

1



Justice of the Peace Court:
Appellate Court:

Primary Elections:
District Court:
County Court at Law:
Justice of the Peace Court:
Appellate Court:

Non-Judicial Elections With Minority Candidates:
5 1984 Co Atty [RP] Yes No
13 1986 Atty Gen [DP] No No
17 198 6 Atty Gen Yes No

Non-Judicial Elections Without Minority Candidates:

SCORECARD
Whites/Minorities Vote Differently Minority Choice Win

Judicial Elections with 
Minority Candidates 2 of 4 0 of 4
JudicialElections without Minority Candidates 0 of 1 1 of l
Non-Judicial Elections with Minority Candidates 2 of 3 0 of 3
Non-Judicial Elections without Minority Candidates 0 of 0 0 of 0

2



I N T H E  S U P R E M E  C O U R T  OF T H E  
U N I T E D  S T A T E S

OCTOBER TERM, 1966

No_________

A lphonse L ewis, J b.,
Petitioner,

vs. No. 15,669
City of Grand Rapids, Michigan, W illiam 

A . J ohnson, Superintendent of Grand 
Rapids Police Department, their commis­
sioners, officials, officers, attorneys, agents, 
employees and any others acting for, with 
or in concert with any of them, et ah,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE SIXTH CIRCUIT

A lphonse Lewis, J b.
Attorney for Petitioner 

Business Address:
418 Houseman B u ild in g 
Grand Rapids, M ichigan

AMERICAN BRIEF AND RECORD COMPANY, FIFTY MARKET AVENUE N f  
GRAND RAPIDS, MICHIGAN 49502 — PHONE GL 8-5326 ’ ' ’’



1

I N D E X

Citations to Opinions Below ................... ......... .............  1

Ju risd ictio n  .........................................................    2

Questions Presented ................    2

Statement of the Case ................................................... 3

Reasons fo r G ranting the W rit of Certionari ...........  10
In tro d u ctio n ..................................................................... 10

Page

I.  Where an applicant for transfer of a liquor l i ­
cense and business has an officially approved and 
substantial financial interest in  said business, a
fa ir  and due process hearing is required before 
denial of said tra n sfe r....... .......... ....... ..................  11

I I .  Petitioner was denied due process of law un­
der state statute and therefore denied equal pro­
tection of the law under the federal statu te .......  14

I I I .  The Due Process Clause of the Fourteenth 
Amendment does apply to liquor licensing as 
squarely determined by Hornsby v. Allen, 326 
F . 2d 605 (1964) in the F ifth  C ircu it and Minlc- 
hoff v. Payne, 210 F . 2d 689 (1953) and squarely 
rejected by the 6th C ircu it Court of Appeals in 
this case ..................................................................... 1 5

IY .  The decision of the Court of Appeals in  
this case conflicts w ith the United States Su ­
preme Court’s decisions in Schware v. Board of 
Bar Examiners, 353 U .S. 232, 1 L . Ed . 2d 796 
(1957); Goldsmith v. United States Board of 
Tax Appeals, 270 U .S. 117 (1926); Greene v. 
McElroy, 360 U .S. 474, 3 L . Ed . 2d 1377 (1959); 
Willner v. Committee on Character and Fitness,
373 U .S . 96, 83 S. Ct. 1175, 10 L . Ed . 2d 
224 (1962) 16



11

V . Petitioner was denied equal protection of
the law by use of unrecorded reasons in the sepa­
rate record “ identified as the causes”  fo r d is­
approval of the transfer of the liquor license to 
him by the defendants ............................................. 17
V I. The rights of petitioner, a Negro attorney, 
under the 14th Amendment, were violated by de­
fendants ’ claim  that no attorney should be a 
liquor licensee because the record shows that a ll 
Negro attorney applicants were disapproved and 
white attorney applicants were approved. The 
only two denials of non-Negro applicants have 
been one fo r m aking a critica l statement about
the police, and the other “ fo r political reasons ” ... 24

V II .  The Court of Appeals erred in reversing 
the findings of the D istrict Court on the facts de­
veloped in  a s ix  weeks tria l and patently erred in 
its determination that petitioner was not denied 
due process or equal protection of the law by 
racial and invidious discrim ination and arbitrary, 
capricious and unreasonable denial of the trans­

Page

fe r of said liquor license.......................................... 25
Petition fo r Rehearing ................................................... 27

C O N C LU S IO N  ................................................................... 30

A P P E N D IC E S :

Appendix A  -— Appellee’s Supplemental Appendix 
—  (Continuation of Fo lios from Main Appendix) 399b

Appendix B  —  Opinion of the D istrict C o u rt.............  1c

Appendix C —  Opinion of the Court of A p p e a ls.......  85c

—  Judgm ent of the Court of Appeals .... 121c
—  Order Denying Petition for Rehear­

ing ......................................................  123 c



Ill

TABLE OF AUTHORITIES

Cases:
Page

Buddy and L lo y d ’s Store No. 1 v. C ity  Council, 377
P . 2d 390 (Colo.) ............ .......... ..................... ...........  is

Cafeteria W orkers v. M cElroy, 367 U jS. 886 L . Ed .
2d 1230 (1961) ........... ........................ ..... ....... ........ . io

C f Donovan v. Clarke, 233 P . Supp. 795 (1963) (D .C .) 13
Crowley v. Christensen, 137 U .S. 86, 34 L . Ed . 620

(1890) ...................................................................... .....  |o
Facination, Inc. v. Hoover, 264 P . 2d 656, 662 (1952) 12
Greer v. Smoldone, 326 P . 2d 978 (Colo.) .....................  13
Geer v. Stathopulos, 135 (Colo.) 146, 309 P . 2d 606 .... 13
G licker v. L . C. C., 160 P . 2d 96, 7. C .C .A . 6 (1947) .13,14,17 
Goldsm ith v. United States Board of T a x  Appeals,

270, 278 U .S. 117 (1926).... ................................ 2,10,12,16
Greene v. M cElroy, 360 U .S. 474, 3 L , Ed . 2d 1377

(1959) ............... -...................... -................................ 2,12,16
H ornsby v. A llen, 326 F . 2d 605

(C .A . 5, 1964) ........... ..... ................ -.-2 ,1 0 ,1 2 ,1 5 ,1 7 ,2 7
M artin v. Board of Supervisors, 26 P . 2d 843 (Cal

1933) ______ __ ______ ___ ____ ______  13
Midwest Beverage Co. v. Gates, 61 P . Supp. 688 (N.W .

In d ) (1945) ................................................ ................  X3
M inkhoff v. Payne, 210 F . 2d 689

(C .A . D .C. 1953) ............................. ........... 2,10,12,15,17
Munroe v. Alcoholic Beverage Control Appeal Board,

325 P . 2d 533 (C a l.) ......... ......... ............... . ... 13
People v. W alsh, 155 N .E . 575, 578 . 12
Reed v. Collins, 90 P . 973 (Cal. App.) .......... .............  ̂ ]•;
Schware v. Board of B a r Exam iners, 353 U .S. 232, 236

1 L .  Ed . 2d 796 (1957) ...............................2,10,11,12,16
Sheeley v. Board of County Commissioners, 325 P

2d 275 (Colo.) ................... ............................ ’.......  ' , 3
United States v. U. S. Gypsum, 333 U .S. 364, 365

92 L . Ed . 746 ......... .......................... ............ ..... ’.......[26 28
W illner v. Committee on Character and Fitness, 373 

U .S. 96, 83 S. Ct. 1175, 10 L . Ed . 2d, 224 
(1962) ...................................................... 2,10,11,12,16, 27



IV

Statutes Involved:
Compiled Law s 'Supplement 1956, Section 24.101- 

24.110 ............................................................................   14

Com piled Law s, Section 3.560(21.8), 48 24.108 ...........  14
Federal Rules of C iv il Procedure, Rule 5 2 ...................  26

M .S.A. 3.560(7)-3.560(18) B y-Law s 48, Section 24-71- 
24.82 ................................................................................. 14

M .S.A. 3.560(21-1)-3.560(21.10) .........    14
M .S.A. 18.988 ....................................................................... 14
P . A . 1960, Act. 1 5 1 ......................................................... 14
28 U . S. C., Sec. 1254(1) ................................................. 2

Other Authorities:
70 H arvard  Law  Review 293 .............................................  10
70 H arvard  Law  Review 193, 263.....................................  12

Page



1

I N T H E  S U P R E M E  C O U R T  OF T H E  
U N I T E D  S T A T E S

OCTOBER TERM, 1966 

No___________

A lphonse Lewis, 
Petitioner, 

vs.

City oe Grand Rapids, Michigan, et al., 
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

SIXTH CIRCUIT

Petitioner prays that a w rit of certiorari issue to review 
the judgment of the Court of Appeals for the S ixth  C ir­
cuit entered in the above-entitled cause on February 16, 
1966, rehearing having been denied on A p ril 7, 1966.

CITATIONS TO OPINIONS BELOW

The opinion of the D istrict Court is set forth at A p ­
pendix B , in fra  p.p. lc-84c, and reported at 222 F . Supp. 
349. The opinion of the Court of Appeals, printed in A p ­
pendix C, in fra, p.p. 85c-123a, is reported at 356 F . 2d 276.

Appellee’s Supplem ental Appendix to the printed rec­
ord in the Court of Appeals is printed as Appendix A  with 
the pages continued from  the main Appendix.

9 copies of the record have been filed under Rule 21 (4).



2

JURISDICTION

The judgment of the Court of Appeals was entered Feb­
ruary 16, 1966. Petition for rehearing was denied A p ril 
7, 1966. Th is Court’s jurisd iction  is invoked under 28 
U .S.C ., Sec. 1254(1). A n  Order entered Ju ly  5, 1966 ex­
tended the time in  which to file Petition for W rit of 
Certio rari to Ju ly  15,1966.

QUESTIONS PRESENTED

I .  Is  a fa ir  or due process hearing* required before a 
m unicipal licensing authority can deny the transfer of a 
liquor license to an applicant who has an officially approved 
and substantial financial interest in  said business?

I I .  Can the factual findings and conclusions of the D is­
trict Court that the Eq u al Protection Clause of the Fo u r­
teenth Amendment has been violated by a m unicipal licens­
ing authority by failure to provide a fa ir  or due process 
hearing under state law be reversed by the Court of A p ­
peals where there is  substantial evidence to support the 
D istrict Court’s findings?

I I I .  Does the Due Process Clause of the Fourteenth 
Amendment apply to liquor licensing as squarely deter­
mined by Hornsby v. Allen, 326 F . 2d 605 (C .A . 5, 1964) 
and Minkhoff v. Payne, 210 F . 2d 689 (C .A . D .C. 1953) 
and squarely rejected by the 6th C ircu it Court of Appeals 
in  this case?

IY .  Does the Court of Appeals decision in  this case 
conflict with the United States Supreme Court’s decisions 
in Schware v. Board of Bar Examiners, 353 U .S. 232, 1 L . 
Ed . 2d 796 (1957), Goldsmith, v. United States Board of Tax 
Appeals, 270 U .S. 117 (1926), Greene v. McElroy, 360 U .S. 
474, 3 L . Ed . 2d 1377 (1959) and Willner v. Committee on 
Character and Fitness, 373 U .S. 96, 83 S. Ct. 1175,10 L . Ed . 
2d, 224 (1962)? V.

V . W hether petitioner was denied Equal Protection of 
the law by use of unrecorded reasons in  separate record 
“ identified as the causes”  fo r disapproval?



3

V I. Is  a Negro attorney’s rights under the Fourteenth 
Amendment in applying- for transfer of a liquor license 
violated by claim  of defendants that no attorney should be 
a liquor licensee, where records show all Negro attor­
ney-applicants are disapproved and white attorney-appli­
cants are approved and the only two denials of non- 
Negro applicants have been one for m aking a critica l state­
ment about the police and the other for “ p o litica l”  reasons!

V II .  Whether the Court of Appeals erred in  reversing 
findings of the D istrict Court based on facts developed in 
six weeks tria l where D istrict Court holds that p laintiff 
was denied Due Process and Equal Protection of the law 
by racial and invidious discrim ination and arb itrary and 
capricious denial (without reasons) for non-transfer of 
a liquor license!

STATEMENT OF THE CASE

Petitioner, Alphonse Lew is, Jr., a Negro attorney, was 
hired by P atric ia  Ettress, after several other lawyers 
failed, to secure the return of Class C liquor business (B a r­
nett’s B a r) from  the previous licensee although “ stops”  
for more than $10,000 in  federal taxes (63b) and the 1958 
and 1959 Grand Rapids city  personal property taxes (299a) 
were owed by said previous licensee.

In  M ay of 1959 the Liquor Control Commission ap­
proved an agreement by which petitioner would finance 
the opening of said bar by P atric ia  Ettress. On May 15, 
1959 the Grand Rapids Police Department filed an L C C  
form  1800 approving petitioner as manager (6b). On 
May 20, 1959 petitioner and P atric ia  Ettress entered in ­
to a chattle mortgage and a management and legal services 
contract providing fo r petitioner to receive a certain per­
centage of the business as compensation during the two 
year term of said contract with a minimum of $2000.00 
per year (87c). 'This agreement was made part of the 
Liquor Control Commission file. A t the time petitioner 
secured the license for P atricia  Ettress, the Liquor Con­
trol Commission files show that there was a “ violation 
pending ’ ’ and Internal Revenue and M ichigan Employment



4

Security Commission “ stop”  (227a). Th is latter fact 
takes on significance in this cause because of later use of 
sim ilar stops by the defendants in this cause against peti­
tioner.

The licensee P atric ia  Ettress ran the bar during the day 
and was day bartender and one W esley Calloway, a boy 
friend, got the receipts from  the night employees (149b).

In  August of 1960 during a tem porary absence of 
P atric ia  Ettress the Grand Rapids Police Department con­
ducted a raid  on the building in which the bar, a restaurant 
and a hotel were located because of suspected gam bling 
activities in  the basement of the building by W esley Callo­
way and another (35b). S ix  men including W esley Callo­
way were arrested on w arrants issued p rio r to the raid  
and a ll of these cases were later dism issed or withdrawn 
(7c). Another w arrant however was issued against W esley 
Callow ay because it was alleged that at the time he was 
arrested he had some pieces of paper in his pocket while 
standing outside of the building which he threw into the 
middle of the street (351b). A s a result of these arrests 
a complaint was made by the Grand Rapids Police De­
partment to the Liquor Control Commission against P atricia  
Ettress the licensee. Petitioner successfully defended the 
crim inal cases and the complaint against the licensee before 
the Liquor Control Commission and a ll charges were dis­
posed of by October 31, 1961.

In  August of 1960 shortly after the complaint, P atric ia  
Ettress the licensee agreed without the knowledge of peti­
tioner to sell the bar for the sum of $17,000 to one Fran k  
Reynolds (64b, 72b). On November 10,1960 P atric ia  Ettress 
agreed to sell to D r. Cortez A . En glish , a Negro dentist, 
for $18,000 contingent upon the cancellation of the previous 
sale. Later after the Reynolds offer was rescinded and 
after the cancellation and expiration of the management 
agreement between petitioner and P atric ia  Ettress on or 
about May 15, 1961, peitioner joined D r. En g lish  at the 
la tte r’s request (34b) to become a partner with him in 
the operation of the business upon transfer of the license.

On or about M ay 29, 1961 petitioner submitted to the 
licensee a statement for moneys owed for capital invested



5

in  the business the amount due for his percentage and for 
legal services rendered (246a, 287a, 32b).

In  June 1961 Andrew Spyk, Jr ., the investigator for the 
Liquor Control Commission who had o rig in a lly  handled 
the transfer of the license to B arnett’s B a r in  May of 1959 
filed a report after exam ining the financial arrangements 
and statements recommending the transfer to petitioner 
and D r. Cortez En g lish  (357b). On Ju ly  11, 1961 the 
Grand Rapids Police Department, ignoring the inform ation 
that the Liq uo r Control Commission was aware of the com­
plaint filed with it, filed the first form  L C C  1800 disap­
proving the transfer because of the pending gam bling vio la­
tion (348b). The Police Department at this time did not 
send in  any report to the C ity  Commission as required by 
its standing rules (392b).

On or about August 25, 1961 the Department of Revenue 
of the State of M ichigan proposed to close the bar because 
of Mrs. E ttre ss’ failure to pay sales taxes but agreed to 
allow the bar to operate pending transfer if  petitioner paid 
$500.00 on said taxes from his own funds and Mrs. Ettress 
turned over financial control and direction of the bar 
exclusively to petitioner (67b). A t the same time an 
Internal Revenue agent was w orking with petitioner in 
connection with the liquidation of the federal taxes at 
the time of the transfer including income taxes owed by 
P atric ia  Ettress, the licensee (168b). On September 25, 
1961 the Internal Revenue agent closed the bar because of 
the failure of M rs. Ettress to make arrangements with 
reference to said taxes (36b) since the pending violations 
were holding up the transfer. On October 2, 1961 W esley 
Calloway, Mrs. E ttre ss ’ boy friend, pleaded gu ilty  to a 
misdemeanor offense of possession of gam bling para­
phernalia and the D istrict Court found that “ the case in 
which W esley Callow ay pleaded gu ilty  did not involve 
a violation of the gam bling laws at B arnett’s B a r”  (351b, 
355b, 222 F . Supp. 349, 355).

On October 13, 1961 prior to the disposition of the com­
plaint before the Liq uo r Control Commission, L .C .C . sent 
new form  L C C  1800 to the Grand Rapids Police Depart­
ment for approval or disapproval of the transfer. A t the 
hearing before the Liquor Control Commission on October



6

31, 1961, Sgt. Charles Skuzinski, the same officer in  
charge of the 1960 raid  on the building, completed the police 
investigation form  L C C  1800 and indicated at the two 
places therefor that he approved and recommended the 
transfer (E x . 3). On the same day Sgt. Skuzinski in ­
formed petitioner and the Internal Eevenue agent that 
the form  would be tiled with the C ity  C le rk ’s office for 
action by the C ity  Commission at its next meeting (E x . 3). 
T h is form was never filed with the C ity  C lerk until after 
Ju ly  31,1962 (329b) even though the petitioner and Internal 
Eevenue agent made repeated trips to Sgt. Skuzinski be­
fore being told that defendant Chief of Police had told 
him to delay or sit on said report (322b, 323b). A fter 
this, petitioner made repeated trips to the police chief 
in  connection with the delays and was given at least 6 or 7 
excuses that are shown in  E xh ib it 21 (378b, 379b). One of 
the excuses given by the defendant Chief of Police was 
that the licensee either did not want to sell or maybe wanted 
more money for said license. On November 13, 1961 the 
Internal Eevenue Service held a sale and in  order to 
protect his investment and chattel mortgage petitioner 
purchased the rights of Internal Eevenue at said sale as 
mortgagee (27a).

On December 5, 1961, P atric ia  Ettress wrote the Liquor 
Control Commission requesting them to return the license 
to the bar under the control of petitioner (381b) but Liquor 
Control Commission inform ed petitioner that it  was neces­
sary to appoint a court receiver to carry out this request.

Under M ichigan law a receiver can only be appointed as 
an an cillary action (Appendix B ), and petitioner filed 
a suit in  the Kent County C ircu it Court for specific per­
formance of the agreement of sale of the business from the 
licensee.

In  the meantime petitioner requested a hearing before 
the city Safety Committee because he was getting no 
cooperation from  the chief of police. Upon learning of the 
law suit the Committee postponed action (74a). Th is law­
suit was settled by an agreement executed on March 20, 
1962, and a request to the defendants for transfer, signed 
by the licensee and her attorney, was filed with the Chief 
of Police, the C ity  C lerk and Liquor Control Commission 
(35b, 42b, 361b). On or about A p ril 2, 1962, the Liquor



7

Control Commission returned the license to the estab­
lishment in the control of petitioner under a power of 
attorney, pending transfer (42b, 393b). On A p ril 6, 1962 
the license director of the Liq uo r Control Commission Mr. 
Maloney, wrote a letter to defendant Chief of Police advis­
ing him that the bar was being operated under the power 
of attorney and requesting that the Police Department 
return the form  1800 which had been sent to them on 
October 13, 1961 (42b).

A t the nest meeting of the Safety Committee consider­
ing the matter, the Chief of Police mentioned a letter dated 
A p ril 10, 1962 from  Mr. Nowak of the Liquor Control Com­
m ission and a letter dated A p ril 21, 1962 from  Mr. Gordon 
F o rre ll, (391b) the Internal Revenue agent heretofore 
referred to as having gone to the Police Department with 
petitioner. A t the next meeting of the Committee on 
Ju ly  24, 1962 petitioner charged that the Chief of Police 
had failed to tell the petitioner or the C ity  Commission 
about the existence of the letter of A p ril 6, 1962 (314b, 
379b) and that he had solicited the letter of A p ril 12, 1962 
(309b) from  the Internal Revenue agent after he failed 
to get said agent or the C ity  treasurer to close the bar be­
cause of unpaid taxes due from  the licensee (325b). P rio r 
to this meeting petitioner had secured a copy of the letter 
of A p ril 6, 1962 and sent to a ll of the C ity  Commissioners 
as the city  Safety Committee had sent a letter dated June 
7, 1962 to the Liq uo r Control Commission requesting said 
inform ation which was contained in the letter of A p ril 6, 
1962, already in the hands of the Chief of Police (326b, 
375b).

A lso at the meeting of Ju ly  24, 1962, the licensee and 
her attorney, petitioner, his partner, the proposed trans­
ferees met to discuss the transfer and the transferees 
complained that no reason had ever been given for the 
delays or fa ilures to transfer this license (15b, 347b). A t 
the end of the meeting the Chief of Police was asked what 
his recommendation would be if  the tax matters were 
cleared up. He recommended denial on the basis of federal 
taxes owed by the licensee (310b). Although the peti­
tioner at said hearing indicated that the letter of A p ril 6, 
1962 answered the inform ation requested in  the letter



8

of June 7, 1962, M rs. Evangeline Lam berts, one of the 
Safety Committee Members refused to accept the state­
ments in  said letters since it  was not addressed to the C ity  
Commission (366b, 393b) and directed the C ity  C lerk to 
write another letter requesting the same inform ation (393b). 
The meeting was then adjourned fo r 3 weeks to secure the 
desired inform ation directly from  the Liq uo r Control Com­
m ission (45b, 84b, 150b. 393b).

On Ju ly  31, 1962 the application of petitioner and his 
partner was not on the agenda (111b, 163b, 164b) but 
Commissioner Lam berts brought up the matter without 
notice to the transferees and made a motion that it  be 
disapproved and the license put in  escrow (394b). The mo­
tion to deny the transfer was made on the basis of the 
“ Police Department recommendation”  (393b).

The Liq uo r Control Commission refused to require the 
license escrow (368b, 369b) and the C ity  Safety Committee 
at the behest of Commissioner Lam berts ordered the C ity  
Attorney to write letters of complaint against petitioner 
(370b, 371b) and after the Liq u o r Control investigation 
did not proceed fast enough to satisfy her, she proposed 
revocation of the license in  order to close the bar (162b).

In  August of 1962 petitioner secured an injunction in 
the Kent County C ircu it Court against the licensee to pre­
vent interference with the business or the efforts of peti­
tioner to secure transfer of the license (363b). In  Sep­
tember of 1962 the licensee then filed bankruptcy and W il­
liam  Nicholls was appointed trustee and Ben DeGroot his 
attorney.

In  October of 1962 certain so-called revocation hearings 
were commenced and the trustee and the petitioner were 
not allowed to submit any witnesses or testimony (424b). 
M rs. Lam berts tried to force the trustee and petitioner to 
put the liquor license in escrow and upon their fa ilure to 
do so, she moved that the license be revoked (406b, 407b, 
408b); (98c).

The trustee in  bankruptcy secured an injunction against 
the revocation of said license and in  the meantime plain­
tiff filed this suit on November 19, 1962 in  the United 
States D istrict Court for the W estern D istrict of M ichi­
gan against the Chief of Police, the C ity  Commission and



9

a ll concerned alleging violation of Ms rights under the 
14th Amendment and the C iv il B ights Act. A fter a 
hearing a tem porary injunction was issued on November
30, 1962 and was made permanent after a six  week’s tria l 
in  June and Ju ly  of 1963. The D istrict Court found a 
denial by defendants of petitioner’s constitutionally pro­
tected rights and required a transfer of said license to 
petitioner and his partner. The D istrict Court held that 
petitioner had been denied due process and equal protec­
tion of the law in both the so-called transfer hearings 
as well as the revocation hearings. The Court further 
held that the trustee in bankruptcy was denied due process 
and equal protection of the law in the revocation hear­
ings. The Court determined that the trustee in  bank­
ruptcy became the owner of P atric ia  E ttre ss’ rights in 
the license subject to the transfer rights of the petitioner 
and his partner as evidenced in the C ircu it Court case settle­
ment. (222 F . Supp. 349, 69c, 70c).

The Court of Appeals for the S ixth  C ircu it reversed the 
D istrict Court’s findings of law and fact and held that the 
cases relied on by petitioner and the D istrict Court were 
inapplicable (Appendix C ).

On petition for rehearing the petitioner pointed out that 
among other things the Court of Appeals allowed the sepa­
rate record of alleged reasons given by the C ity  Commission 
fo r denial even though the chairm an of the committee who 
was supposed to have given the reasons to the committee of 
the whole on Ju ly  31, 1962 admitted that the first time he 
heard any reasons given was on October 24, 1962 in the 
so-called revocation hearings (214b) and another commis­
sioner named Jam o admitted that when he voted on Ju ly
31, 1962 he had heard no reasons (230b, 243b), and in  spite 
of the fact that a tape recording of the C ity  Commission 
meeting on that date (E x . 52) indicated from  comments 
made by the C ity  Attorney that no reasons had been given 
in any report of the committee chairman. The Court of A p ­
peals further held that there was no evidence of racial or 
invidious discrim ination in  the record (107c, 119c).

The Court of Appeals for the S ixth  C ircu it denied peti­
tioner’s petition for a rehearing on A p ril 7, 1966.

A n  Order extending time to file W rit of Certiorari was 
filed on Ju ly  5, 1966 extending the time to Ju ly  15, 1956.



10

REASONS FOR GRANTING THE WRIT OF CERTIORARI 

I N T R O D U C T I O N

The case presents a question of substantial public im ­
portance in that the Supreme Court has not decided the 
question of the application of the due process clause of 
the 5th and 14th Amendments of the Constitution to the 
field of state and m unicipal licensing of the liquor busi­
ness. It  further involves a conflict of authority between 
the court in  this case and the Court of Appeals fo r the 
F ifth  C ircu it which squarely decided that the due process 
clause of the 14th Amendment does apply along with the 
equal protection clause in  the determination of whether or 
not there has been discrim ination in the denial of the ap­
plication for a license to engage in  the liquor business. In  
this case there is a collateral question that the petitioner 
claim s that due process was required by a specific state 
law and the S ixth  C ircu it Court of Appeals has hereto­
fore held that the equal protection clause applies to the 
revocation of liquor licenses even before the statute was 
amended to specifically require due notice and proper 
hearing in liquor license revocation cases. The F ifth  C ir ­
cuit Court of Appeals in  Hornsby v. Allen, 326 F . 2d 605 
(1964) decided squarely that the due process clause of the 
14th Amendment applied to the application for a liquor 
license. The Court of Appeals for the D istrict of Colum­
bia also decided this question affirm atively in  Minkhoff v. 
Payne, 210 F . 2d 689 (D .C .) C .C .A ., D .C. (1953). That the 
decision in the within case is against the better reason and 
modern decisions is shown in  an article in  the H arvard  
Law  Review by Kenneth C. D avis “ The Requirement of a 
T r ia l Type H e arin g”  70 H arvard  Law  Review 293 quoted 
in Cafeteria Workers v. McElroy, 367 U .S. 886, L . Ed . 2d 
1230 (1961).

I t  is petitioner’s contention that the Court of Appeals 
in  this case, in  reversing the D istrict Court, decided this 
case squarely in  opposition to the decision of the United 
States Supreme Court in  Goldsmith v. United States Board 
of Tax Appeals, 278 U .S. 117 (1926); Schware v. Board of 
Bar Examiners, 353 U .S. 232, 1 L . Ed . (2d) 796 (1957);



11

Willner v. Committee on Character and Fitness, 373 U .S. 
96, 83 S. Ct. 1175,10 L . Ed . (2d) 224 (1962). The Court of 
Appeals in the instant case starts out with the ancient doc­
trine of Crowley v. Christensen, 137 TJ.S. 86, 34 L . Ed . 620 
(1890) and holds “ the only inescapable rule of Crowley is 
that the denial of a hearing, in  itse lf, would not violate the 
14th Amendment.”  Starting from  this doctrine in  a crim inal 
case on petition for w rit of Habeas Corpus in which the 
appellant claimed that the ordinance under which he was 
convicted of selling liquor without a license was invalid  
on its face, the court in  the instant case arrives at the 
conclusion that a decision such as Schware and Willner 
cannot “ be read to control a case of an application for 
transfer of a liquor license” . The Court of Appeals in 
the case at bar seems to regress to the so-called privilege 
doctrine to say that “ traditional m unicipal interest in 
regulating the liquor business together with the prob­
lems of conducting this regulation through competent civic- 
minded, part-tim e officials, requires the use of flexible pro­
cedures. These exigencies of city  management must not 
be disregarded” , in  order to obtain a fa ir or due process 
hearing. (Em phasis supplied).

The case further involves whether or not the Court of 
Appeals has authority to reverse the D istrict Court’s find­
ings of fact where there was substantial evidence in a d is­
puted fact situation to sustain the D istrict Court’s findings 
on the m erits.

I. Where an applicant for transfer of a liquor license and 
business has an officially approved and substantial financial 
interest in said business, a fair and due process hearing is 
required before denial of said transfer.

It  is a basic principle of our system that a person shall 
have the opportunity to be heard. It  is the contention of 
petitioner that the so-called transfer hearings were dis­
cussions of facts relating to the licensee and mechanical 
procedures for transfer of licenses and the circumstances 
and details of the renewal of the license on M ay 8 [sic] 
1962 (314b). It  is further contended that a tria l type of 
hearing was required on issues of adjudicative fact where



12

petitioner had invested a substantial amount of money for 
the starting of said business as well as additional capital.

Other courts of appeal have determined that a tria l 
type of hearing is required before an application for a 
liq^^or license transfer can be denied. Minkhoff v. Payne, 
210 F . 2d 689 (D.O. C ir. 1953); Hornsby d Allen, 326 F . 
2d 605 (1964).

The 'Supreme Court has heretofore decided that due 
process hearings are required before adm inistrative boards 
can deny an applicant the right to practice accounting, 
law, or other calling before such board.

Goldsmith v. TJ. S. Board of Tax Appeals, 270 
TJ.S. 117 (1926);

Schware v. Board of Bar Examiners, 353 U .S. 
236, 1 L . Ed . 2d 796 (1957);

Willner v. Committee on Character and Fitness, 
373 IT.S. 96, 10 L . Ed . 2d 224 (1962);

Greene v. McElroy, 360 U .S. 474, 3 L . Ed . 2d 1377;

A s stated by Pro f. D avis in his article “ E igh t of a T r ia l 
Type H earin g”  70 H arvard  L .E . 193, 263, referring to 
the Goldsmith case (supra),

“ The facts in  dispute were adjudicative facts re­
lating to the particular ind ividual; the reason for a 
tria l type of hearing was therefore strongest.”

State case supporting the proposition that due process is 
necessary to the process of ju d icia l review is J .  Cardoza’s 
view in People v. Walsh, 155 N .E . 575, 578, that “ such re­
view becomes impossible if  without supporting evidence 
or equivalent averment.”

The Californ ia Supreme Court in  Facination, Inc. v. 
Hoover, 264 P . 2d 656, 662 (1952) Cal. held “ law con­
templates justice whether it is granted as a privilege or 
recognized as a vested right. . . (T )h e  right to engage in 
the sale of beverages . . . may not be arb itrarily  denied by 
the Board of Supervisors without a hearing or an oppor­
tunity on the part of the petitioner to present the m erits of 
her application to the licensing tribunal.”



13

State Supreme Courts are now supporting the well rea­
soned legal conclusion of the D istrict Court in  this case 
(222 F . Supp. 376, 384-388) that a due process hearing is 
required before denial of an application for a liquor license.

Buddy and Lloyd’s Store No. 1 v. City Council, 
377 P . 2d 390 (C o lo );

Geer v. Smoldone, 326 P . 2d 978 (C o lo .);
Munroe v. Alcoholic Beverage Control Appeal 
Board, 325 P . 2d 533 (C a lf);

Sheeley v. Board of County Commissioners, 325 
P . 2d 275 (C o lo .);

Geer v. Stathopulos, 135 Colo. 146, 309 P . 2d 606;
Martin v. Board of Supervisors, 26 P . 2d 843 (Cal. 

1933);
Cf Donovan v. Clarke, 233 F . Supp. 795 (1963) 

(D.C.);
Reed v. Collins, 90 P . 973 (Cal. App.)

None of the cases cited herein consider the fact that 
the applicant here already had a financial interest in  the 
business to be transferred.

The D istrict Court in  Midwest Beverage Go. v. Gates, 
61 F . Supp. 688 (N.W . In d ) (1945) went so far as to call 
a liquor license property.

Petitioner herein paid for the original liquor license in 
this case and advanced other money fo r operation of the 
business. Therefore petitioner has a substantial financial 
investment in the licensed business and refusal to transfer 
same without due process amounted to destroying peti­
tioner’s investment.

Petitioner’s investment was approved by the Liquor 
Control Commission and defendants and such approval 
was given after petitioner underwent the same investiga­
tion and form alities as the licensee in whose name the li­
cense was issued. The denial of the transfer in  this case 
amounts to the same thing as the revocation. See Glicker 
v. L. C. C., 160 F . 2d 96, C .C .A . 6, (1947).



14

II. Petitioner was denied due process of law under state 
statute and therefore denied equal protection of the law 
under the federal statute.

In  M ichigan Adm inistrative Code which is M .S.A. 
3.560(7)-3.560(18) B y-Law s 48, Section 24.71-24.82. M ich­
igan Adm inistrative Procedures A ct M .S.A. 3.560(21.1)- 
3.560(21.10). Compiled Law s Supplement 1956, Section 
24.101-24.110. Section 3.560(21.8) Compiled Law s 48 24.108 
“ A n y person aggrieved by a final decision in  a contested 
case, where such decision is affirmative or negative in  form, 
is entitled to jud icia l review thereof under this act; but 
nothing in this section shall be deemed to prevent resort 
to other means of review, redress, re lief or tria l de novo, 
provided by law .”

It  is petitioner’s contention and found by the tria l court 
that the provisions of the M ichigan Adm inistrative Code 
and M ichigan Adm inistrative Procedures A ct required “ due 
process”  hearing before the C ity  Commission as a subordi­
nate liquor licensing authority. The Court of Appeals in  
this case ignored the fact that the statute providing for due 
process hearing in revocation cases was not put into the 
statute (M .S.A. 18.988) until 1960 as the result of the 
attempt by the defendants in  this case to revoke eleven (11) 
bar licenses without any hearing or without any reasons. 
The 1960 amendment (Act. 151, P .A . I960) to this statute 
added nothing that Glicker v. Liquor Control Commission, 
supra, had not already added at least by requiring some 
form  of hearing which was reviewable by the court so as 
to prevent denial of equal protection of the law. The in ­
evitable result of G licker was to remand the case to the 
D istrict Court for a determination as to whether or not 
the appellant had been denied equal protection of the law 
and this determination could only be made upon a record 
made by the D istrict Court. It  is therefore submitted that 
the Court of Appeals erred in  ignoring the fact that due 
process procedures were required by state law and thereby 
petitioner was denied equal protection of the law in the 
application of the state law to him by not requiring a hear­
ing on his application for transfer.



15

III. The Due Process Clause of the Fourteenth Amend­
ment does apply to liquor licensing as squarely determined 
by H o r n s b y  v .  A l l e n ,  326 F. 2d 605 (1964) in  the F ifth  
C ircu it and M i n k h o f f  v .  P a y n e ,  210 F. 2d 689 (1953) and 
squarely rejected by the 6th C ircuit Court of Appeals in 
this case.

It  is petitioner’s contention that the decision of the Court 
of Appeals in  this case is also in direct conflict with the 
Court of Appeals for the D istrict of Columbia in  the case 
of Minkhoff v. Payne, 210 F . 2d 689 (1953) and Hornsby v. 
Allen, 326 F . 2d 605 (1964). See 356 F . 2d 249, 289. In  
Hornsby v. Allen there was an action by an applicant for 
a liquor license whose application was denied “ without a 
reason therefor”  and the denial was charged to be “ arb i­
trary, unreasonable, unjust, capricious and discrim inatory” 
and in  contravention of due process and equal protection 
clauses of the 14th Amendment. The court said at page 
608 “ A t the outset we note our disagreement with the 
D istrict Court’s classification of the challenged actions as 
purely those of a legislative body; we do not concede the 
denial of an application for a license to be an act of legisla­
tion . . .  we prefer the view that licensing proper is an 
adjudicative process, thus when a m unicipal or other 
governmental body grants a license it is an adjudication 
that the applicant has satisfactorily complied with pre­
scribed standards for the award of that license. S im ila rly  
the denial of a license is based on an adjudication that 
the applicant has not satisfied those qualifiations and re­
quirements . . .  A  governmental agency entrusted with the 
licensing power therefore functions as a legislature when it 
prescribes these standards, but the same agency acts as a 
jud icia l body when it  makes a determination that a specific 
application has or has not satisfied them. ’ ’

“ Since licensing consists in  the determination of factual 
issues and application of legal criteria to them —  a jud icia l 
act —  the fundamental requirement of due process are 
applicable to it .”



16

IV. The decision of the Court of Appeals in this case con­
flicts with the United States Supreme Court’s decisions in 
S c h w a r e  v .  B o a r d  o f  B a r  E x a m i n e r s ,  353 U.S. 232, 1 L. Ed. 
2d 796 (1957); G o l d s m i t h  v .  U n i t e d  S t a t e s  B o a r d  o f  T a x  

A p p e a l s ,  270 U.S. 117 (1926); G r e e n e  v .  M c E l r o y ,  360 U.S. 
474, 3 L. Ed. 2d 1377 (1959); W i l l n e r  v .  C o m m i t t e e  o n  

C h a r a c t e r  a n d  F i t n e s s ,  373 U.S. 96, 83 S. Ct. 1175, 10 L. 
Ed. 2d 224 (1962).

The decision of the Court of Appeals in  this cause is in  
conflict with the principles set down in  various United 
States Supreme Court decisions that the actions of ad­
m inistrative licensing boards are subject to the due process 
clause of the 14th Amendment to the Constitution. It  is 
the contention of the petitioner that the activities of the 
defendants and the method of disapproval of the transfer 
in  this case was a denial of due process. It  is petitioner’s 
further contention that the action of defendants is in  con­
flict with the decisions of the United States Supreme 
Court in,

Goldsmith v. United States Board of Tax Appeals, 
270 U .S. 117 (1926);

Willner v. Committee on Character and Fitness, 
373 U .S. 96, 10 L . E d . 2d 224 (1962);

Greene v. McElroy, 360 U .S. 474, 3 L . E d . 2d 1377 
(1959) ;

Schware v. Board of Bar Examiners, 353 U .S. 232, 
L . Ed . 2d 796 (1957).

It  is appellant’s contention that the Court of Appeals 
has unduly restricted the application of the Supreme Court 
decisions in the aforementioned cases and is  seemingly 
afra id  to apply constitutional principles to this case be­
cause of the nature of the liquor business when it  is too 
late in the day to claim  the liquor business is any more 
detrimental to society than the automobile, drug or cosmetic 
business. The court is  perfectly w illin g  to allow con­
stitutional rights to be distinguished on the shallow ground 
of privilege or the nature of the business involved. We 
cannot but urge that this is  too sh ifty  a basis upon which 
to base constitutional rights.



17

The court further held that the decision of the deciding 
authority must be based on evidence adduced at a hearing. 
To like effect is the decision of the Court of Appeals of the 
D istrict of Columbia in MinJchoff v. Payne {supra), where 
the court said “ refusal to renew a license previously issued 
must be based upon evidence which applicant had fu ll op­
portunity to refute” . In  this case the hearing was deter­
mined to be under a procedure applicable to an application 
fo r a license and the court held this was proper.

The Court of Appeals in  this case said at 356 F . 2d 276, 
289 “ We recognize some observations in  the Hornsby 
case as being at odds with our conclusion and to that extent 
we decline to follow it ” . The Court of Appeals in  this 
case does not recognize that the Hornsby case came to the 
F ifth  C ircu it Court of Appeals without any statutory re ­
quirement for any hearing as was the case when the Glicher 
case reached the Court of Appeals for the S ixth  C ircuit. 
The court in  this case is  w illing to find that “ p laintiff 
Lew is was, under Glicher and other authorities, entitled to 
“ equal protection of the law ”  guaranteed by the 14th 
Amendment but it is not w illin g  to extend this doctrine 
to due process or fa ir  hearing in the determination as to 
whether or not he has been given equal protection of the 
law in  the circumstances of this case. 356 F . 2d 276, 296.

V. Petitioner was denied equal protection of the law by 
use of unrecorded reasons in the separate record “identi­
fied as the causes” for disapproval of the transfer of the 
liquor license to him by the defendants.

A ll of the reasons stated by the defendants for the dis­
approval of the transfer, in  the separate record, were arb i­
trary, capricious and unreasonable. It  is also petitioner’s 
claim  that the reasons given in  said separate record were 
invidiously and racia lly  discrim inatory. The reasons given 
in the separate record fo r non-transfer of the license w ill 
be discussed in  two p a rts:

1. Those reasons that were discussed during the trans­
fer hearing;

2. Those reasons which were not discussed.



18

The only reason both given in the separate record by de­
fendants as a cause for non-transfer of the license and 
discussed during the tranfer hearings was taxes owed by 
the licensee. The record shows very clearly and without 
dispute that other licenses had been transferred and had 
never been held up because the licensee owed taxes (222b, 
401b). Th  so-called “ discussion”  of the taxes owed by the 
licensee in  this case was a matter of explaining the mech­
anical processes by which businesses are transferred under 
the B u lk Sales Law  and escrow arrangements whereby 
taxes as well as other obligations are paid upon the 
transfer of the business including the license (400b). In  
this case the defendants, against a ll evidence in  the record, 
tried to make it  appear that p laintiff and petitioner was 
somehow responsible fo r the failure of the licensee to pay 
certain taxes. They also used the owing of taxes as an 
indication that the licensee was not m aking money, in  spite 
of the fact that they were aware that substantial amounts 
were owed for income taxes. It  goes without arguing that 
a person does not owe income taxes unless he earns a net 
profit in  a business. In  the case at bar the evidence shows 
that the financial arrangements including the payment of 
taxes had been examined, investigated and approved by the 
Liquor Control Commission which had the usual respon­
sib ility  in  this area. The record further shows that income 
tax inform ation on the licensee was part of the Liquor 
Control Commission files submitted by the licensee. None 
of the financial and tax arrangements was prior to this 
time, the official business of defendants except the personal 
property taxes.

The fact that this had never been used as a criteria by 
defendants is shown by the follow ing statement in the 
pre-trial conference (28 b ):

“ T H E  C O U R T : W ell, do you request financial
records of other applicants?

“ M R. G A R L IN G T O N  (C ity  A tto rn e y): The Liquor 
Control Commission does and if  they are satisfied, 
then we usually are.

‘ ‘ T H E  C O U R T : H as the C ity  of Grand Rapids
ever requested that?

“ M R. G A R L IN G T O N : I  can’t answer that, Ju dge.”



19

It  is submitted that a law yer’s discussion of taxes owed 
by another does not give notice or intimate that defendants 
w ill later claim  that the fact that such taxes owed by 
another whom the lawyer applicant has represented is 
grounds for disapproval of said applicant for a transfer of 
the license. I f  this be so, no license would ever be trans­
ferred and it would not be necessary for the usual bulk 
sale laws which require notice to a ll creditors of the sale 
en toto of any business establishment of the assets there­
of. It  is also to misunderstand the nature of a so-called 
“ stop” request wherein the Liquor Control Commission 
is requested to see that the escrow arrangement provides 
for the payment of the money “ after”  the approval of the 
transfer and during the actual execution of the transfer 
documents (356b). We submit that the Court of Appeals 
erred in  holding that “ discussion”  of taxes owed by an­
other is a sufficient ground fo r denial of the transfer of 
the license to petitioner.

It  is submitted that of a ll the other reasons given in 
the separate record as grounds for the non-transfer of 
this license, none was discussed during the transfer hear­
ing and therefore they were arb itrary, capricious, unrea­
sonable and discrim inatory (243b).

The dismissed ‘ ‘ gam bling charges ’ ’ were never mentioned 
at the transfer hearings and at the revocation hearings 
were dismissed by the C ity  Attorney, to-wit, October 16, 
1962 (222 F . 2d 349, 367), (56b). The other reasons ad­
vanced by defendants at the tria l were attempts to make 
assumptions about the factual basis of petitioner’s relations 
with his form er client without any evidence and indeed 
contrary to evidence in the record. Certain ly a “ history 
of gam bling”  cannot be equated to a “ sale”  of a number 
by someone who leaves the bar and comes back with a 
crumpled piece of paper and hands it to another person 
who immediately puts said piece of paper in his pocket. 
The record also shows that the only plea of gu ilty in ­
volved pieces of paper which were thrown in  the street 
by a man who was arrested by police officers on a w arrant 
outside of the building in which the bar is located (351b). 
These pieces of paper were not observed at a ll times by 
the officer in  the car with him (352b). Certain ly the fact



20

that a part owner of a building standing outside of his 
building has some pieces of paper or any other possible 
contraband in his pocket cannot be used to taint either 
the tenant of said bar or the attorney who represents said 
tenant with some type of guilt related to gam bling. The 
possession of gam bling paraphernalia cannot by any stretch 
of the im agination be termed gam bling. It  is submitted 
that one who is in  possession of a pair of dice m ight be in 
possession of gam bling paraphernalia but certainly cannot 
be charged with gam bling if  he does nothing but have the 
dice in his pocket.

Another reason for disapproval given on the separate 
record was the bar was a “ poor operation”  under peti­
tioner’s management. In  this connection petitioner calls 
the Court’s attention to Exh ib it 5, which shows that dur­
ing petitioner’s management the licensee took in  $107,- 
800.25 (246a). The C ity  Attorney asked the court to re­
quire petitioner to produce financial statements given to 
the Liquor Control Commission (27b). Th is statement 
shows that this inform ation was never w ithin the hands 
of the C ity  Commission or its agents prior to the tria l and 
a ll the ctiy commissioners admit that they have never seen 
a profit and loss statement relating to said bar (235b, 236b). 
Defendants did not see the letter written by the licensee 
on October 21, 1961 until the tria l when same was part of 
the Liquor Control Commission files (259a). Said  letter 
indicated that the management fee of petitioner amounted 
to $8,406.78, and this was based on fees of 6% and 10% 
per year. A  projection of these percentages would indicate 
to the trier of the facts that the minimum income on which 
these fees would be based would be $84,067.80 to a maximum 
of $140,113.00. Commissioner Lam berts (141b) and Com­
m issioner Jam o admitted that they knew income taxes were 
owed and that the bar made money (235b). Commissioner 
Barto also testified that he was aware that M rs. Ettress 
owed federal income taxes (222b) and at no time did any­
one state that Mrs. Ettress, the licensee, did not make any 
money in  the operation of this bar (223b). Commissioner 
Barto, chairm an of the Safety Committee, also testified 
that petitioner told the committee that he did not 
handle the collection of the cash and that “ quite a



21

sum of money”  had been taken in  by this bar and that 
petitioner had “ showed some figure”  (223b).

In  regard to the claimed reason that petitioner knew of 
his “ relation with his client” , (p. 103c, C .C .A . Opinion) it 
is sufficient to say that at no time was there any evidence in 
the record that his form er client or any of the lawyers that 
represented her made any claim  against petitioner or that 
the licensee made any claim against petitioner that had 
any basis in  fact or reason. It  is submitted that the tria l 
court found that the relation between petitioner and the 
licensee was not the affair of defendants and ruled that 
neither party could go into relations between the licensee 
and petitioner during the tria l of the cause (267b). The 
record is abundantly clear that M rs. Ettress sold the bar 
in  August of 1960 and that sale thereof was pending until 
the tria l of the within cause. The question is posed as to 
whether petitioner could have “ announced or considered 
that the title he then acquired was to protect or as trustee 
for h is client.”  (I.R .S . 'Sale), (92c).

It  is submitted that the so-called and alleged transfer 
hearing of Janu ary 16, 1962 through Ju ly  24, 1962 were 
at the request of petitioner and in  the nature of a com­
plaint against the Chief of Police. The fact that these 
were not hearings on the transfer is well shown by the 
statement of the Chief of Police that petitioner contended 
at the committee meeting of Ju ly  24, 1962 that the letter 
from  the Liquor Control Commission dated A p ril 6, 1962 
was not brought to the attention of the Safety Committee. 
H is answer to the question as to why the committee was 
addressing itse lf to questions about status of the license 
and the operation of the bar after A p ril 2, 1962 is illum inat­
ing (314b):

“ A. It  is my understanding that the w riting to the 
Liquor Control Commission by the Grand Eapids C ity  
Commission, was occasioned not so much because of 
the letter of A p ril 6, but the renewal of May Sth and 
the circumstances and details under which this re­
newal was consummated.”



22

Th is is a clear indication that the Chief of Police, after 
the license renewal on M ay 1, 1962, was keeping the com­
m issioners concerned with the fact that petitioner was then 
in complete control of the bar pending transfer, where as 
in the reasons given in the separate record fo r fa ilure to 
approve petitioner, the licensee was shown by the record 
to be in charge of the bar (30b) prior to sale to petitioner.

The statement in the separate record that no lawyer 
should be a licensee (331b) is patently arb itrary, ca­
pricious and discrim inatory on its face and petitioner 
claim s that it is also racia lly  discrim inatory as petitioner 
claim s as of the two Negro lawyer applications, Ralph 
Rodgers (390b, 391b) and petitioner, both were denied 
approval, whereas defendants admit that white lawyers 
have been approved as licensees in the C ity  of Grand 
Rapids and held licenses at the time of the tria l (320b).

It  is submitted that other things done by the defend­
ants show that the reasons given in the separate record are 
arb itrary, capricious, unreasonable and invidiously dis­
crim inatory, It  is submitted that a ll of the alleged reasons 
in  the separate record were known prior to Ju ly  24, 1962 at 
the meeting which D r. En g lish  and petitioner attended. It  
is submitted, that if  those reasons were valid  on Ju ly  31, 
1962, they were also valid  on November 1, 1961, and a ll 
as a matter of fact were matters of newspaper publicity 
and could not have been of any embarrassment to petitioner 
because at no time during this period did defendants claim 
or try  to claim  that petitioner was in  any way responsi­
ble for the alleged gam bling charges which were dismissed 
(7c) or the failure of the licensee to pay certain taxes.

It  is further submitted that the defendants did a large 
number of unusual and unnecessary things if  their reasons 
were valid. The follow ing are only a few of the examples 
in  the record:

(a) Delays in the processing of the charges in the 
courts;

(b) Refusing to submit the form 1800 to the C ity  
C lerk or the Liq u o r Control Commission which the 
Chief of Police was required to do by a standing rule 
of the C ity  Commission (E x . 68).



(c) The Chief of Police tried to get the Internal 
Revenue Agent and the C ity  Treasurer to act against 
the bar;

(d) The defendant Chief requested a new investiga­
tion by the Liquor Control Commission (128b);

(e) The evidence at the tria l showed that the police 
department and the liquor control investigator called 
in by defendant Johnson submitted false reports to 
the Liq u o r Control Commission (E x . 8 L ) ;
(f) The Chief of Police did not advise petitioner or 
the Safety Committee or the C ity  Commission about 
the letter he received from  the Liquor Control Com­
m ission dated A p ril 6, 1962, as shown by the C ity  
C le rk ’s minutes of the meeting of the Safety Com­
mittee on A p ril 17, 1962 (E x . 68);

(g) The Safety Committee was suddenly in a hurry 
to act on Ju ly  31, 1962;

(h) The Safety Committee required the C ity  A t­
torney to make complaints against petitioner to the 
Liquor Control Committee;

(i) _ The defendant Chief of Police and the liquor in ­
vestigator stayed in contact with each other although 
the investigations were supposed to be separate and 
independent of each other;
( j)  The revocation hearings were brought by the 
'Safety Committee, particu larly Commissioner Lam ­
berts when she could not get the Liquor Control 
Commission to act against petitioner;
(k) Commissioner Lam berts made complaints to the 
Attorney General and to the Governor’s Legal A d ­
viser ;
(l) The Commission claimed that the operation was 
“ poor”  where there was on evidence that petitioner 
was in control but when petitioner did take control 
of the bar during the hearings and pending the trans­
fer, they then contended that the operation was i l ­
legal (408b);



24

(m ) No explanation was ever given for the with­
holding of the Form  1800 sent to the Police Depart­
ment on October 13, 1961 and approved by the ser­
geant of the V ice Squad on November 1, 1961, who 
was directed by the defendant Chief of Police to 
change the approval to a disapproval after Ju ly  31, 
1962;

(n) Commissioner Jam o stated that when he voted 
fo r the denial resolution on Ju ly  31, 1962, there were 
no reasons stated (243b).

Petitioner submits that the reasons fo r denial were arbi­
trary, capricious, unsupported and unreasonable and there­
fore violates petitioner’s constitutional rights.

VI. The rights of petitioner, a Negro attorney, under the 
14th Amendment, were violated by defendants’ claim that 
no attorney should be a liquor licensee because the record 
shows that all Negro attorney applicants were disapproved 
and white attorney applicants were approved. The only two 
denials of non-Negro applicants have been one for making 
a critical statement about the police, and the other “for 
political reasons”.

E xh ib it 68 (390b) shows that Mr. Ralph Rodgers (a 
Negro law yer) was heard and Mr. Frederick W . Poel, an­
other lawyer, spoke “ on behalf of Mr. Rodgers and him­
se lf”  and one of the reasons stated “ (d) Chief of Police 
prejudice” . A t this hearing on December 19, 1961 “ Com­
m issioner Lam berts moved that the request be denied.”  A t 
page 311b defendant Johnson testified “ I  can’t see where 
any attorney could possibly accept these p lural responsi­
b ilities, I  think it is definitely incompatible, and I  couldn’t 
see where Mr. Lew is, or any other law yer could fu lfill the 
obligations of both roles.”  A t page 331b the follow ing 
question of Mr. Lew is was asked of defendant Johnson — 
“ It  is your contention no law yer can or should be a licensee 
under the Liq uo r Control regulations?”  Answ er: “ That 
is my contention, M r. Le w is.”



25

VII. The Court of Appeals erred in reversing the findings 
of the District Court on the facts developed in a six weeks 
trial and patently erred in its determination that peti­
tioner was not denied due process or equal protection of the 
law hy racial and invidious discrimination and arbitarary, 
capricious and unreasonable denial of the transfer of said 
liquor license.

A t the argument of the within case in February of 1965 
counsel fo r defendant city admitted that under the present 
status of the law and p articu larly under the federal cases 
applicable to the case at bar that the petitioner had not 
received a fa ir  hearing before the C ity  Commission on 
the transfer. A s stated by the Court of Appeals the city 
did not deny that the so-called second series of hearings re­
ferred to in  the record as revocation hearings denied pet- 
tioner equal protection of the law. (Em phasis supplied). 
A t that time counsel fo r defendants argued that the case 
should be returned to defendants for the purpose of hav­
ing a fu ll scale hearing (and denying said transfer in  due 
course) and indicated to the court that four of the com­
m issioners who were on the commission at the time of 
the hearings were no longer on the city  commission. It  is 
submitted that those parts of the record quoted by the 
Court of Appeals which show that petitioner was not de­
nied equal protection of the law are such statements or 
findings of fact that were not necessary or m aterial to the 
findings of the D istrict Court. Many of the interpretations 
made by the Court of Appeals and findings made by the 
D istrict Judge are solely matters of interpretations of the 
wordings and the import of the meaning of the words as 
used in the context of the tria l. The most notable example 
is shown on page (116c).

“ (4) ‘When commissioner Sevensma on cross-exam­
ination was inform ed of the facts in  the alleged gam bling 
cases he stated that if  he had known these facts his judg­
ment about the case would have been different’ (222 F . 
Supp. 373). Commissioner Sevensma did not so testify. 
Mr. Le w is’ questions contained Le w is’ hypothesis of facts 
which he contended would have failed to establish that 
there was gam bling in  B arnett’s B ar. Asked if  he knew



26

such to be facts, would his judgment have been different, 
Sevensma answered ‘I  would say yes, perhaps it  would 
have been different . . .  it  might have been different’ ” .

On (page 119c) of the Court of Appeals opinion the Court 
of Appeals held “ Lew is does not deny the factual high 
points of his management of B arnett’s B a r and his client’s 
a ffa irs”  and it  is submitted that there is no evidence in 
the record about petitioner’s management of the bar or 
his relations or responsibilities to the bar or to his client 
and indeed same were ruled out by the court. On page 113c 
of the Court of Appeals opinion the Court of Appeals 
extracts a police report which was submitted to the Liquor 
Control Commission entitled “ items confiscated from  58- 
60 Ion ia during the numbers raid  of 8-5-60” . The Court 
omits to say that none of this alleged evidence was ever 
submitted to any court and none of the cases arisin g out 
of said alleged arrests for conspiracy were ever prose­
cuted. It  is submitted that it  is a h ighly irregu lar pro­
cedure fo r a Court of Appeals to take as true conclusions 
and statements made by police officers which have never 
been submitted to a court and never used against a person 
arrested as a result thereof and tried to use them to preju­
dice the lawyer who successfully represented the defend­
ants accused in such charges.

W ithout belaboring or discussing the entire record it is 
submitted that a comparison of the findings of the D istrict 
Court and the findings of the Court of Appeals against the 
background of the record in  this case w ill show that the 
Court of Appeals has solely come to different conclusions 
based on the same facts which the tria l judge had ample 
opportunity to observe and evaluate. It  is further sub­
mitted that the Court of Appeals under Rule 52 of 
the Federal Rules of C iv il Procedure and United 
States vs. U. S. Gypsum, 333 L .S . 364, 365, 92 L . Ed . 
746 (1948 was not authorized to find that upon the whole 
record the finding of the tria l judge were “ thoroughly er­
roneous” . Petitioner therefore urges the court to look to 
the facade of defendants who claim  not to be racia lly  preju­
diced to determine the effect of their past actions and 
their actions against petitioner herein which clearly show 
that they were not only racia lly  prejudiced but invidiously



27

discrim inatory in  the matter at bar and exercised the 
so-called discretion vested in  them in an arb itrary, ca­
pricious and unreasonable manner.

Petitioner further urges that the Court of Appeals erred 
in  fa ilin g  to grant rehearing upon the follow ing petition 
filed by petitioner:

PETITION FOR REHEARING

TO  T H E  H O N O R A B LE  JU D G E S  O F T H E  U N IT E D  
S T A T E S  C O U R T  O F A P P E A L S  F O R  T H E  S IX T H  
C IR C U IT :

Alphonse Lew is, Jr ., the Plaintiff-Appellee, above named, 
presents his petition for rehearing in  the above matter 
and in support thereof, respectfully shows:

I.

The Court, in  its opinion of reversal, has clearly erred 
in  ru ling that p la in tiff was not entitled to due process in  
connection with his application for transfer; in  this re­
gard the Court unduly lim ited the application of such 
cases as Willner vs. Commissioners, 373 U .S. 96 10 L . Ed .
(d) 224 and Hornsby vs. Allen, et al., 326 Fd . 2d 605 
(1964), and failed to consider the grave im plications of 
such a ru ling in  regard to such applications.

I I .

The Court, in  its opinion of reversal, has clearly erred 
in ruling that the D istrict Court’s findings as to racial bias 
and discrim inatory motive on the part of the defendants 
were clearly erroneous, in  the follow ing respects:

(a) The Court failed to give due and sufficient con­
sideration to the traditional role of the T r ia l Judge, as 
trier of the facts, and his duty and right to observe the 
witnesses in their testimony and actions, and from his 
observations, to draw his conclusions as to the respective 
credib ility of each and every w itness;



28

(b) The Court failed to give due and sufficient consider­
ation to the reasonable inferences drawn by the T r ia l 
Judge, p articu larly in  a case such as this, where direct 
evidence of discrim ination is  not generally available;

(c) The Court could not, I  respectfully submit, in  a ll 
fairness upon this record, be left with “ the definite and 
firm  conviction that a mistake has been committed”  by 
the tria l judge, in  a case of this nature because the findings 
to be made by either the tria l court or the appellate court 
must necessarily be based in large part on inferences, ap­
pearances, cred ib ility and like considerations in their in ­
ter-relationship with the fa cts;

(d) The Court erred in its reliance on U. 8. vs. U. S. 
Gypsum, 333 U .S. 364 in  that said case involved an appeal 
from  an order granting defendant’s motion to dism iss at 
the close of the Government’s proof, and that substantially 
different considerations are involved in  regard to the suf­
ficiency of evidence at such a point in  the tria l.

I I I .

The Court, in  its opinion of reversal herein has erred 
in  basing its conclusions on facts erroneously stated in the 
follow ing respects:

(a) The Court relied on the fact that p laintiff had 
financial control of the licensee’s business or funds and 
specific responsibility to pay taxes, which was not based 
on credible evidence and the licensee testified contra (see 
pages 157-158b of appellee’s appendix);

(b) The Court states that the C ity  Commission was 
agreeable to a transfer to p la in tiff’s partner, D r. En glish , 
whereas in  fact, in  D r. E n g lish ’s own words about the 
meeting of Ju ly  24, 1962 “ There was quite a bit of d is­
cussion at that meeting, and it  seems to me that I  was 
being treated more as a crim inal rather than a citizen 
asking for the transfer of a license. The tacties of the 
Safety Commission d idn’t seen very cordial to me”  (see 
page 346b of appellee’s appendix):



29

Q U E S T IO N : “ W ere any reasons ever given in  your
presence for denial of the transfer in  one 
of the Safety Committee m eetings?”

A N S W E R : “ N o.”

(See page 347b of appellee’s appendix).

(c) In  footnote 5, page 20, of the Court’s advance opin­
ion, the court quotes testimony of Commissioner Jam o 
as a member of the “ Safety Committee”  when in  fact he 
was not a member of the “ Safety Committee”  during the 
hearings on the application for transfer (see Exh ib its 
68 and 69 ) ;

(d) The Court relied on defendant’s testimony that 
the so-called transfer hearings related to discussions of 
the application for transfer when the evidence shows 
that they were a discussion of “ the renewal of M ay 8th 
and the circumstances and details under which this renewal 
was consummated (see page 314b of appellee’s appendix 
and E xh ib it 9).

IV .
The Court in  its opinion of reversal herein, has clearly 

erred in that it  failed to give due consideration to the fo l­
lowing m aterial evidence before the tria l judge:

(a) The tape recording of the C ity  Commission meet­
ings, particu larly on Ju ly  31, 1962 (E xh ib it 52);

(b) The new and unique tests of competency applied 
to this particular p laintiff on his transfer application;

(c) That the Sergeant who was in charge of the raid  
on the building and bar and who testified before the Liquor 
Control Commission about said raid  and who was in charge 
of investigating transfer applications, approved of the 
transfer to p laintiff and D r. En g lish ;

(d) That the Chief of Police and certain commissioners 
promoted and engaged in studied delays of the m atter;

(e) That the defendants based their reasoning upon 
hearsay and false inform ation as well as improper crite ria ;



30

(f) That a ll the regulating agencies and officers there­
of approved of p laintiff as a transferee;

(g) That the M ichigan Adm inistrative Code required 
a fa ir hearing on p la in tiff’s application for transfer (see 
page 15 of appellee’s b rie f);

(h) Th at defendants had previously tried to close bars 
without any hearings (see page 71b of appellee’s appendix).

(i)  That p laintiff had to call defendant commissioners 
to testify over defense counsel’s objections;

( j)  That the defendant Chief of Police was prejudiced 
against lawyers and stated “ no lawyer can or should be 
licensee”  (see pages 311b and 331b of appellee’s appendix);

(k) That Safety Commission chairm an Barto stated at 
a revocation hearing that no reasons had ever been given 
to him or the Committee (see page 161b of appellee’s ap­
pendix).

W H E R E F O R E , upon the foregoing grounds, it  is re­
spectfully urged that this petition for rehearing be granted 
and that the judgment of the D istrict Court be, upon fu r­
ther consideration, affirmed.

Alphonse Lew is J r .
Attorney for Petitioner 

and Plaintiff-Appellee
(Denied A p ril 7, 1966).

CONCLUSION

W herefore, for the foregoing reasons, it  is respectfully 
submitted that the petition for W rit of Certionari should 
be granted.

Alphonse Lew is, Jr .,
Attorney for Petitioner.



A P P E N D I X  A

EXHIBIT 1 — Hearing before the Safety Committee of the 
City of Grand Rapids, November 7, 1962

(5)
A R T H U R  J .  A R E N S , called as a witness herein, being 
first duly sworn, was examined and testified as fo llow s:

D IR E C T  E X A M IN A T IO N  
B y  Mr. M iller:

# # #

399b
Exhibit 1 —  Safety Committee Rearing, Nov. 7, 1962

Testimony of Arthur J. Arens

(33)
M R. L E W IS : Le t me say this, Mr. De Boer w ill recall, 

and I  think I  have already introduced here a receipt in  
which the personal property taxes were paid fo r the year 
1958. A s I  have heretofore told you, I  did not have con­
trol of the money for the payment of these taxes. I  did 
on numerous occasions try  to get M rs. Ettress to take care

(34)

of these taxes. Mr. De Boer w ill tell you that on numerous 
occasions I  have been in contact with him personally. I  
have a letter signed by Mr. De Boer, dated March 22, 1962 
in which he gave me for my use the amount of taxes to be 
paid at the time we filed this agreement with the C ity  Com­
m ission and at the first hearing at which Mr. DeBoer at­
tended, I  think it  was in A p ril, Mr. DeBoer, I  think, in ­
formed or least I  informed the committee that, at that time 
we had made arrangements by a conference with Mr. De­
Boer to put the tax money in escrow. I  think I  stated 
that to this committee very fu lly, that the proper way to 
handle a transfer of a liquor license or any business under 
the B ulk Sales Law  is to put the money in escrow and Mr. 
DeBoer and I  had an understanding that the money would 
be put into escrow pending the transfer. Now, Mr. DeBoer 
wanted it  a little  different, as I  recall, he wanted the check



in  his hands, m aking him self an escrow agent for the pay­
ment of the personal property taxes where the usual situa­
tion is the escrow agent holds a ll funds and then the escrow 
agent pays out a ll funds. When Mr. Sevensma was on the 
committee, that was discussed and at that time Mr. Johnson 
did not think that an attorney could he an escrow agent and 
was advised by Mr. Sevensma that Mr. Dewey in  this 
situation, could both act as attorney for Mrs. Ettress and 
as escrow agent. # * *

(35)

M E. L E W IS : W ell, Mrs. Lam berts, you use the term 
“ tran sfer”  interchangeably as it suits yourself, however, 
so far as the taxes were concerned, the taxes are to be 
paid from the proceeds of a sale by the statute. In  other 
words, by both the Liq u o r control Statute, the B u lk  Sales 
Law  and the Sales T a x  Law , there is provisions for these 
escrow arrangements, they have to be made. In  fact, 
there is a ten day provision, as I  recall, in  one of them 
where the funds are not payable out of the escrow —

M E. V A N D E N  B E E G : I  want to ask you, Mr. Lew is, 
the question I  asked you before. You don’t mean to im ply 
that by just suggesting that there is going to be a sale, 
that you thereby can avoid paying taxes'?

M E. L E W IS : No, I  don’t.
M E. V A N D E N  B E E G : Because this seems to be the 

final result of this, if  you say there is going to be a sale and 
this is pending, we could have this pending until eternity.

M E. L E W IS : You are right, Mr. Vanden Berg, except 
this, under the laws that I  have referred to, and no busi­
ness man would pay taxes or pay money when he is in  the

(36)

position of purchasing the business until the statutory re­
quirements have been met. Now, one of those statutory 
requirements under the Sales T a x Law , for instance, is 
that the escrow agent hold sufficient funds to pay the sales 
tax until the sales tax clearance is  issued.

400b
Exhibit 1 —  Safety Committee Hearing, Nov. 7, 1962

Testimony of Arthur J. Arens



M E. Y A N D E N  B E R G : W ell, Mr. Chairm an, I  just
want to make an emphatic point. So fa r as the C ity  is 
concerned, it  can at any time go in  and collect those taxes.

M R. L E W IS : I  don’t think there is any question about 
that, Mr. Yanden Berg. I  am only talking about the mat­
ter from  a practical aspect.

T H E  C H A IR M A N : I  think we have had others, in  fact 
quite often there are transfers, that a request for a transfer 
is made where there are taxes due, hut before the final ap­
proval is made, those taxes are a ll taken care of, so that 
was the case here, hut as of now there is no transfer pend­
ing.

MR. L E W IS : Mr. Barto, may I  say to Mr. Yanden
Berg, secondly, in  this particular case when we, when I  
got the license from  Mrs. Ettress in  the beginning, we had 
to pay Mr. B aldw in ’s taxes, those taxes which Mr. DeBoer 
just mentioned, we had to pay those taxes. I  have the 
receipt in  my file for the payment of those taxes.

(37)
M RS. L A M B E R T S : W hat taxes T
MR. L E W IS : The personal property taxes.

# * #
(38)

T H E  C H A IR M A N : Jim , can I  interrupt you. You
said this first question was settled. I f  there is a profit 
being made now, why is n ’t some of that profit being used 
to pay part of the personal property taxes ?

M R. L E W IS : W ell, if  you want to see the books and 
records as to whether or not there is a profit, then that is 
one question, and if  you want the taxes paid, that is still 
another question, because taxes are paid whether or not 
there is a profit. There isn ’t any question that I  could pay 
the taxes by taking the money out of my pocket, but in 
getting this thing, I  am try in g  to get it and keep it on its 
feet and there has not been enough profit to pay the total 
amount of these taxes. A s I  recall it, my recollection is 
that there is  approxim ately Seven Hundred D ollars —

401b
Exhibit 1 —  Safety Committee Hearing, Nov. 7, 1962

Testimony of Arthur J. Arens



M E. M IL L E R : My understanding is that they amount 
to $775.44 plus penalties and interest.

M R. L E W IS : R ight.
M R. M IL L E R : Now, secondly, isn ’t it  your position in  

opposing this November 1 Order of the Referee in  Bank­
ruptcy that he is wrong in  determining that the trustee 
is the owner of this license, and don’t you m aintain that 
you, yourself, have this license?

M R. L E W IS : No, and I  stated that right here in the 
previous meeting. I  don’t contend that the license is in

(39)
my name. I  contend I  have an interest in this license. I  
contend I  have an interest in  this business, that the only 
way this business can operate is with the license. Now, I  
have got a lot of money involved in this which somebody 
seems to want to ignore and I  have pointed out to this com­
mittee before that due to the fact that the money was not 
being properly managed, certain official agencies required 
and consented to my taking over financial control.

M R. V A N D E N  B E R G : D id  you do this without a
tranfer of this license from  the C ity  of Grand Rapids or 
the Liquor Control Commission?

A . W ell, I  did this in  August, 1961.
M R. V A N D E N  B E R G : A t that time, had the license 

been transferred to you?
A . No, it w asn’t. Even at that time, the transfer was 

being held up by the Grand Rapids Police Department, 
because of a citation against Mrs. Ettress.

# # #
M R. V A N D E N  B E R G : Then, Mr. Chairm an, another 

question particu larly now to Mr. M iller, and Mr. Lew is 
can answer it  if  he wants to, is it  not true that what you

(40)

do as an individual with your money in  the wmy of lend­
ing, g iving  or m aking it  available is strictly  your business ?

M R. L E W IS  : No, not in  the case of a liquor establish­

402b
Exhibit 1 —  Safety Committee Hearing, Nov. 7, 1962

Testimony of Arthur J. Arens



ment. It  has to be passed upon and approved by the 
Liq uo r Control Commission.

M R. V A N D E N  B ER G -: And your investment in  this
license bas not been approved?

M R. L E W IS : It  has been approved.
# # #

403b
Exhibit 1 —  Safety Committee Hearing, Nov. 7, 1962

Testimony of Arthur J. Arens

C R O S S  E X A M IN A T IO N  
B y  Mr. Lew is:

# # *

(43)
Q. Now, is n ’t it true that prior to June 19, 1962 then, 

that a ll of the papers and a ll of the books and records had 
been examined which had been referred to you as requested 
after May, 1962?

A . In  regard to this transfer?
Q. Yes.
A . Yes. # # #

(44)

Q. Now, isn ’t it  true also that sittin g in  my office be­
fore you was a box in  which were contained records and 
papers relating to B arnett’s Bar?

(45)
A. You indicated there was a box of papers and records 

of the B arnett’s B ar, you indicated that.
Q. And you knew that from  the time you talked to me 

the first time, is n ’t that true?
A . You indicated there was a box there.
Q. Now, is n ’t it  also true that you told me that you 

wanted to talk to M rs. Ettress in  the C ity  of Grand Rapids 
before your doing anything further in this investigation?

A . In  every investigation, S ir, we talk to —  in this 
case, it  would be to applicants, you and D r. En g lish , I  
asked you a number of times where D r. En glish  could be 
contacted, one time you told me he was in Idlew ild, another



time he was unavailable; I  would have to talk to D r. En glish , 
Mr. Lew is and M rs. Ettress.

404b
Exhibit 1 —  Safety Committee Bearing, Nov. 7, 1962

Testimony of Arthur J. Arens

# #
Q. Is n ’t it  true then that you asked me to make some 

effort to have M rs. Ettress to come to the C ity  of Grand 
Rapids to talk to you?

A . That is right, sir.
(46)

Q. Is n ’t it true I  told you I  wrote her a letter to advise 
me when she could come here to talk to you?

A . You stated to me you had, yes, sir.
Q. Is n ’t it  also true that fo r one of the periods of time 

involved you told me you were going away yourself fo r a 
period of time and that you would contact me after you 
returned from  school or some other business trip  that you 
were making?

A . That is right, sir. * * *
# # #

A . I  asked if  you wanted it  held up and you stated you 
wanted this investigation held up. I  said, in  that regard, 
fine, would you give me a letter stating that you, as an 
applicant wished to have this investigation held up.

Q. (In d ica tin g ): Is  this a copy of the letter?
A. I  would have to check my personal file, but it ap­

pears that it may be, yes. # # #
(47)

Q. Now, is n ’t it true that the reason that the investiga­
tion, in  your opinion, could not be completed, was because 
you did not make arrangements to meet Mrs. Ettress?

A . S ir, as a ll investigations go, and this is no ex­
ception, we have to begin at the beginning of a ll investiga­
tions, and go through the points as outlined previously in 
this hearing right here today.



(50)

A . * * * I  w ill show yon the letter that the Liq u o r Con­
trol Commission did deny your request and I  w ill tell 
you approxim ately the time it was denied, December 13, 
1961, I  believe it was denied. No, August 7, 1961, denied 
by commission due to failure to receive favorable recom­
mendation from  the police department.

Q. Mr. Arens, I  am talking about the period, and I  
want to lim it it from  October 31, 1962 to Jan u ary 31 —  
Janu ary 30, 1962, did you talk with anyone at the police 
department during that period in  connection with this 
case ?

M RS. L A M B E R T S : There isn ’t anything wrong with 
his doing that, is there?  ̂ ^

(51)
Q. Mr. Arens, would you listen to my question, please, 

and try  to answer the question, if  you can, because we 
can get along better. Is n ’t it  true —

M R. V A N D E N  B E R G  (In te rp o sin g): W ell, Mr. Chair­
man, I  think we want to adhere to due process, but I  think 
Mr. Lew is, that we are going to have to sometime say that 
we are going to terminate the hearing on such and such 
a time and I  certainly think we have got to recess or 
adjourn at this time until a further date. We have gone 
a half hour beyond, it ’s almost eleven thirty-five.

M RS. L A M B E R T S  : Can we close the hearing and dis­
cuss it?

T H E  C H A IR M A N : Mr. Lew is said he would like 
to call some witnesses. In  view of this ten day stay, I  
would still like to meet wtih the committee today, but at 
the same time would it  s till be in order and agreeable with 
the rest of the committee we adjourn until next Tuesday?

M RS. L A M B E R T S : I  would like some indication that 
we are going to take some distinctive action on some 
definite date.

T H E  C H A IR M A N : Of course, at the same time, if
you agree to give the persons involved or interested, a

405b
Exhibit 1 —  Safety Committee Hearing, Nov. 7, 1962

Testimony of Arthur J. Arens



(52)

fa ir  hearing, yon m ight get sick of listening to it, bnt yon 
still have to listen to it.

M RS. L A M B E R T S : L e t ’s get an indication as to
whether it  is pertinent.

T H E  C H A IR M A N : I  don’t want somebody coming
back and saying later on they were deprived of a fa ir 
hearing.

M RS. L A M B E R T S : No, Mr. Chairm an, I  think we
should determine whether, whatever else is going to be 
brought before this committee is pertinent to the question 
that we have before us and not irrelevant matters that 
would fill a book.

T H E  C H AIR M A N : W ould it be agreeable with the
committee that we adjourn it for two weeks and at that 
time if  you have any witnesses, Mr. Lew is —

M RS. L A M B E R T S : W hy two weeks?
T H E  C H A IR M A N : W ould one week be enough in

view of this stay?
M R. M IL L E R : W ell, the stay would be effective until 

Tuesday, the 13th, would it not, because of the holiday on 
the 12th?

M RS. L A M B E R T S : Mr. Chairm an.
T H E  C H A IR M A N : M rs. Lam berts.
M RS. L A M B E R T S : Mr. Chairm an, the first session 

of this hearing we requested Mr. Nichols and Mr. Lew is, 
too, and Mr. M iller to get together and see if  they could

(53)
come to a voluntary agreement to place this license in 
escrow by a certain time. Mr. M iller, has that attempt 
been made?

M R. M IL L E R : Yes, M a’am.
M RS. L A M B E R T S : And it has been unsuccessful?
M R. M IL L E R : T h a t’s right.
M RS. L A M B E R T S : Mr. Lew is has not voluntarily

agreed to place this license in escrow?
M R. M IL L E R : None of the parties who claim  an interest 

in  this license have seen fit to get together to place this

406b
Exhibit 1 —  Safety Committee Hearing, Nov. 7, 1962



license in escrow and I  am speaking of Mrs. B e ll’s attorney 
before the bankruptcy petition was filed; I  am speaking 
of Mr. Lew is, who is here before us today, and I  am speak­
ing of Mr. DeGroot and Mr. N ichols; no one who has 
control of this license has placed it  in  escrow.

T H E  C H A IR M A N : It  gets down to the point Mr.
Nichols has been appointed trustee, right, so, actually as 
we are concerned, the license for a ll practical purposes 
until it  is finally settled, is in  his care!

M RS. L A M B E R T S : However, there is nothing to keep 
these parties from  voluntarily agreeing, which they have 
not done which we specifically asked them to do, and it 
is my position that this whole thing in  the courts and

(54)
everywhere would be speeded up considerably if  that door 
were closed and the license placed in escrow so that it was 
in the best interest of both Mr. Lew is and the Trustee to 
make a settlement so that the bar could be opened again, 
this is my point.

* # #

M R. M IL L E R : I  think there is no doubt that the Court 
has restrained or stayed the order determining the Trustee 
is the owner of the license.

#  *  *

407b
Exhibit 1 —  Safety Committee Hearing, Nov. 7, 1962

T H E  C H A IR M A N : On the 24th, as I  remember, of
(55)

October or the 16th of October. In  other words, Mr. 
Nichols is w aiting for a decision from  the Court, the 
Bankruptcy Court, and he w ill immediately apply to place 
it in escrow, is that right?

M R. D E  G R O O T: That is the Trustee’s position, yes, 
sir.

M RS. L A M B E R T S : But Mr. Nichols would at this
time, —

T H E  C H A IR M A N : He said he can’t.
# #  #



M RS. L A M B E R T S : Mr. Lew is, are you w illing at this 
time to voluntarily agree to place this license in  escrow 
until this legal question is solved?

M R. L E W IS : A ll right, M rs. Lam berts, I  am not going 
to answer that question. You have given me several u l­
timatums. You have threatened me with investigation, and 
I  want it  made as a matter of record that this whole hear­
ing, as fa r as you were concerned, you told me in Mr. 
M ille r’s presence, your objection to this bar operating or 
you had objection was my operating it.

(56)
M RS. L A M B E R T S : Because of the ille ga lity  of this 

operation.
M R. L E W IS : T h is operation is not illegal. It  is with 

the complete knowledge of the Liquor Control Commission. 
Mr. Arens knows it, you know it.

.̂ .

M R. M IL L E R : Mr. Chairm an, I  would like to have
it pointed out that it  is extremely difficult for us to obtain 
court reporters for hearings at times certain and I  would 
like to have the committee suggest that if  anyone wishes 
a court reporter, that they obtain the reporter for the 
adjourned date, but that we would not supply the reporter 
or guarantee a reporter for that date.

M R. L E W IS : How can you have a fa ir  hearing? Th is 
is the thing I  am worried about. On many occasions, 
statements were made, then they are later disputed and 
the reason I  have repeatedly and from  the beginning asked 
for a reporter so there is  no question about what was 
said.

(57)
M R. M IL L E R : The first request I  had was the letter

and you can bring your recorder or reporter next week.
T H E  C H A IR M A N ": Jim , I  think in  a ll fairness, since 

we are conducting the hearing, I  think we should provide 
a court reporter.

MR. V A N D E N  B ER G -: We won’t terminate the hear­
ing the week after.

408b
Exhibit 1 —  Safety Committee Hearing, Nov. 7, 1962



M R. L E W IS : Mr. Vanden Berg, that is the thing that 
bothers me. N aturally, in these hearings, everybody wants 
to save time if  they can and a lot of issues have been 
raised and as Mrs. Lam berts raised a moment ago the 
question of relevancy comes up in  every hearing and 
in  this particular hearing, Mrs. Lam berts has even ques­
tioned why I  don’t b ill clients monthly. I f  we are going 
a ll over the lot in  the, when the C ity ’s case is being pre­
sented, I  think I  should have the right to present testi­
mony in connection with anything that has been pre­
sented at this hearing.

M RS. L A M B E R T S : I  believe that was not my ques­
tion.

M R. L E W IS : W ell, your mind is made up, M rs. Lam ­
berts. # # #

(59)

M R. L E W IS : May I  have some action then by the
committee on issuance of subpoenas! M ay I  request the 
C ity  C lerk be authorized to give me the necessary sub­
poenas? Some witnesses I  have have to come from work.

T H E  C H A IR M A N : A s long as we told you to provide 
your witnesses at the next hearing, I  don’t see why we 
can’t provide him with subpoenas.

M RS. L A M B E R T S : Mr. Chairm an, is there some way 
we can determine whether this is relevant to the question 
of the purpose of the hearing?

* # #

409b
Exhibit 1 —  Safety Committee Rearing, Nov. 7, 1962

M R. L E W IS : Since Mr. Johnson has made his state­
ment, it  has come out in the newspaper, it has been on the 
radio, in  fact, it was even in one of the highschools. 
People have come to me and said, I  d idn’t know you were 
hot tempered. I  have had to meet it  and I  have been 
embarrassed by it. I  am going to demand the right to

(60)
meet those things. R igh t at the present time, I  don’t 
know what Mr. Johnson’s im pressions are. I  did re­



ceive from  Mr. M iller a part of wbat be said. So far, I  
don’t bave a fu ll statement of what was said at the first 
meeting.

M RS. L A M B E R T S : I  would like to ask the C ity  A t­
torney if  this is relevant to this question of revocation of 
this license? * # #

410b
Exhibit 2 —  Safety Committee Hearing, Nov. 13,1962

EXHIBIT 2 — Hearing before the Safety Committee of the 
City of Grand Rapids, November 13, 1962

# # #
(1)

M R. B A R T O : Mr. M iller, w ill you bring us up to date 
in  this matter?

M R. M IL L E R : Th is is the fourth meeting of the Safety 
Committee on the question of the revocation of the license 
for B arnett’s B a r held in  the name of P atric ia  Ettress. The 
previous meetings were held on October 16, 1962, October 
24, 1962 and November 7, 1962. Mr. Chairm an, it  is the 
contention of the C ity  of Grand Rapids this license is held 
in the name of P atric ia  Ettress and never has been trans­
ferred to any other person. P atric ia  Ettress has asserted 
no interest in  this license and has appeared at none of 
the hearings, although served notice. * * *

# * #
(2)

M RS. L A M B E R T S : I  think we better set the ground 
rules.

M R. D E  G R O O T : I  second that motion.
M RS. L A M B E R T S : I  would suggest we give Mr. De- 

Groot and Mr. Lew is a certain maximum amount of time 
and then declare the hearing adjourned —  that this hear­
ing continue for one hour?

(3)
M R. L E W IS : I  would say, Mr. Barto, that would be 

unfair and illegal. You cannot call a hearing, take a month



to present the C ity ’s case and a ll of a sudden decide the 
Respondent has one hour to present his case.

411b
Exhibit 2 —  Safety Committee Hearing, Nov. 13,1962

M R. M IL L E R : May I  ask Mr. Lew is whether he con­
tests the fact that we claim  and have shown he is not the 
licensee of the establishment!

M R. L E W IS : I  don’t contest the license is in  my name. 
That is not the issue. The issue is that someone wants 
to do something to get me out of this license and this is 
being attempted.

M R. M IL L E R : We only contend you don’t, have a
license.

M R. L E W IS : You are saying on Page 4 your memo­
randum the committee has the right to overrule what is 
done in court in  this matter —  the same as M rs. Lam berts 
has done by com plaining to C ircu it Court.

# * *
(4)

M R. M IL L E R : You don’t contend you can operate
without a transfer do you?

M R. L E W IS : I  have been operating since 1959 with 
the same power and authority I  have now and that is what 
someone here seems to ignore.

M R. L E W IS : I  am not responsible for a ll of the delays 
in the hearings before this committee. We anticipated it 
would take not more than sixty  days.

* * *
(6)

MR. B A R T O : A s far as anything else that has gone on, 
even though you have operated with court permission, or 
without, or P atric ia  E ttre ss’ permission —  that has noth­
ing to do with what we are doing now. The question is 
whether this license should be placed in escrow or revoked 
issued to P atric ia  Ettress.



M R. L E W IS : Th is has been tried —  to place this in 
escrow and it  could not be done legally that way, so now 
you have threatened revocation unless it is  done volun­
tarily. The whole purpose of this hearing is to get at me.

* * #
(7)

M R. L E W IS : I  would say th is : I  am going to insist 
allow ing everything to be taken up in  this hearing. You 
have brought up most of the things relevant to revocation 
and I  insist we have witnesses on each and every point. I  
cross-examine every city witness and I  am able to pre­
sent witnesses to every point presented. F o r instance, 
three weeks have elapsed since rem arks made by the Chief 
of Police about me have gone into the newspapers.

M RS. L A M B E R T S : Do you care to ask the Police Chief 
a question or two regarding the question of revocation of 
this license? We are not interested in  any other subject?

M R. L E W IS : You have been interested in a lot more 
subjects.

M RS. L A M B E R T S : The more you argue the less time 
you w ill have.

M R. V A N D E N  B E R G : W hat are your plans?
M R. L E W IS : F irs t, to restate some of the notes I

have here and then to continue cross-exam ination of Mr.

(8)
Arens. That was my original plan, and then go into some 
questions with the Chief of Police.

M R. B A R T O : A re they in regard to the transfer?
M R. L E W IS : Not necessarily. When I,  as a lawyer,

question a witness I  am not in  position always to say what 
I  am going to ask specifically.

M R. M IL L E R : I  suggest we ignore the testimony of 
Mr. Arens of last week and Mr. Lew is be given the oppor­
tunity to proceed.

M R. L E W IS : I  certainly do not agree to that procedure.
M RS. L A M B E R T S : I  move we follow the procedure 

suggested by the C ity  Attorney.

412b
Exhibit 2 —  Safety Committee Hearing, Nov. 13,1962



M R. L E W IS : You feel you are able to throw out of 
your mind a ll of Mr. A ren s’ testimony, the m ajority of 
which was in answer to questions from  you?

M RS. L A M B E R T S : M y motion is we proceed to dis­
regard the testimony of Mr. Arens and Mr. Lew is be al­
lowed to proceed to ask questions of the Police Chief and 
L t. Szum ski relative to this question of revocation.

M R. V A N D E N  B E R G : I  think I  w ill have to agree
with Mr. Lew is. We m ight be able to do this but this 
testimony has been imbedded in  our minds and w ill in ­
fluence us. I  wonder if  we could do something radical and

(9)
declare the whole hearing to be a m istria l, throw it  out and 
start from  scratch. We start from  scratch and we start 
at this moment and continue for forty-five minutes and we 
discuss nothing but the question of revocation. That we 
get real technical as to who is the licensee and who, in  fact, 
operates this and we w ill judge solely by that.

M RS. L A M B E R T S ; I  w ill second that,
M R. B A R T O : You said Mr. A ren s’ testimony has been 

imbedded in our minds. # # #
M R. V A N D E N  B E R G : I  think, then, we can be done 

by twelve o ’clock if  we start from  scratch at this moment.
# # #
(10)

I  think Mr. Lew is has a right to ask questions of the 
Police Chief and L t. Szum ski. Mr. Lew is, now if  you would 
like to ask questions of the Chief and L t . Szum ski you may 
do so.

M RS. L A M B E R T S : Relative to the revocation issue.
M R. L E W IS : I  wanted to ask Mr. Arens questions in 

reference to the revocation too.
# # #

413b
Exhibit 2 —  Safety Committee Hearing, Nov. 13,1962

M R. L E W IS : M ay I  preface it  by some things as a 
matter of record?



M RS. L A M B E R T S : Only if  it  pertains to the revoca­
tion issue.

M R. L E W IS : Some things are going to be in this 
record and if  you want to you can strike them from  the 
record. The first thing I  would like to say I  have said, 
in  part, before. In  this hearing it is very clear that Mrs.

(11)
Ettress and her attorneys have never made any complaint 
about my relationship to this license. The reasons which 
have heretofore been given, or part of those reasons, are 
not applicable to any activity as a licensee, as distinguished 
from  an attorney or another person. I  would like to state 
in the first of these hearings a question was asked by 
Chairm an Barto with reference to why no explanation 
was ever given for change on the form  1800 of the Liq uo r 
Control Commission.

These hearings, and particu larly the first of these hear­
ings, have always been held under the threat to me per­
sonally by Mrs. Lam berts. M rs. Lam berts has threatened 
me with an investigation by the Governor, which I  wel­
come. I  suggested a B a r Association censure if  I  had done 
anything wrong. She also threatened that and in several 
of these hearings I  have personally been given ultimatums. 
M rs. Lam berts brought up, in  the first hearing, the fact 
Judge Hoffius issued an injunction in this matter which 
was in direct connection with the issues in this case and the 
case was there before that court.

I  notice in Mr. M ille r’s statement on Page 4 of his so- 
called memorandum that he states, “ Ille g a l proceedings 
give rise to an illega l operation of this bar. ’ ’

Now at the meeting of October 16 Mrs. Lam berts stated
(12)

—  and I  don’t know whether the record w ill show it, but I  
took it  down —  the Chief of Police and L t. Szum ski had 
given reasons for the denial, although I  have heard other 
members say no reason had ever been given in this com­
mittee, and I  think it has been so reported in the newspapers 
p rio r to the November 7 hearing. I  pointed out to this

414b
Exhibit 2 —  Safety Committee Hearing, Nov. 13,1962



committee the Liq uo r Control Commission and its au­
thority under the statutes is completely aware of this opera­
tion. It  is the one which issues licenses, has investigators 
including Mr. Arens who knows about the situation.

Mr. Yanden B erg  has raised the question in regard to 
Mrs. Ettress and the money being made from  the bar. 
I  don’t know whether he has been informed, but I  have a 
copy of the transcript of the testimony of M rs. Ettress be­
fore Bankruptcy Court October 4, saying she had some­
one else picking up the money in  this bar and a ll the money 
was not accounted for to her.

Now in  the meeting of October 24 certain reasons were 
stated by the Chief of Police as grounds for refusal of the 
transfer. Two or three of those reasons did not apply at 
the time and could not have applied at the time because the 
conditions which he claim s did not exist then. The rea­
son for applying for the plural responsibility I  had in this

(13)

bar was a matter that was not w ithin the province of the 
Chief of Police. I t  wag a matter concurred in  by the 
Chief of Police in  M ay 1959 and directed and controlled 
and approved by the Liquor Control Commission. I  would 
like to point out to this committee that they do not have 
jurisd iction and it  is like pouring water on a duck’s back. 
Section 5 and 7 of the statute state only the Liq uo r Con­
trol Commission makes its own regulations and only the 
Liquor Control Commission can determine its regulations 
have been violated. The C ity  Safety Committee, in spite 
of the fact no citations and no hearing have been held be­
fore the Liq uo r Control Commission, are now saying the 
Liq uo r Control regulations have been violated. The C ity  
Commission has requested an investigation on the same 
rules now used from  the Liquor Control Commission and 
there has been no citation on the investigation.

One other thing, at the Ju ly  24 hearing Mr. M iller ruled 
there was no violation of the Liquor Control rules. Mr. 
Arens restated that rule and that there were no violations 
of the Liquor Control regulations. I  would like to point 
out that because of statements made, particu larly No. 4,

415b
Exhibit 2 —  Safety Committee Hearing, Nov. 13,1962



would be in the nature of you passing a new rule and then 
applying it to this case which is  unconstitutional and 
illegal.

The other reason stated by the Chief of Police was relat-

(14)
ing to my representing persons who were arrested. That 
is not worthy of the Chief of Police or any official because 
it  is my duty to represent people who come to me as clients 
and I  w ill be in  a position to have the Chief of Police 
control who are my clients. That is the extent of what 
I  want on the record.

M R. M IL L E R : Do you claim  you own this license or 
have some right to operate under this license? I  think we 
ought to c la rify  that.

M R. L E W IS : I  have repeatedly said, Mr. M iller has 
ruled, and Mr. Arens restated that under the resolution 
there is no violation of the liquor control law. I  have 
pointed out to the committee that under Section 7 and Sec­
tion 5 no one other than the Liq u o r Control Commission 
can determine Section 17 or Section 31 of the liquor regula­
tions have been violated. In  other words, what you do 
here is put me on the horns of a dilemma. The Liquor 
Control Commission says it is legal and because someone 
here doesn’t like it they are try in g  to say it  is illegal. A s 
was pointed out by the Attorney 'General in  this case you 
could not suspend this license and place it in  escrow with­
out cause and they said, of course, the C ity  Commission 
couldn’t do it, but even the Liquor Control Commission 
cannot do it under the statute without a hearing and with-

(15)
out proof the liquor control regulations were violated.

# * *
M RS. L A M B E R T S : I  think the record should be c la ri­

fied. A fte r the first session of this hearing the C ity  A t­
torney asked me to go to his office to talk to A1 Lew is. M y

416b
Exhibit 2 —  Safety Committee Hearing, Nov. 13,1962



mistake was in  com plying with that request. I  never 
should have gone, obviously.

# # #

417b
Exhibit 2 —  Safety Committee Bearing, Nov. 13,1962

M RS. L A M B E R T S : I  request, then, his remarks about 
me be stricken from  the record.

(16)
M R. L E W IS : I  have no objection to the remarks being 

stated on the record.
M RS. L A M B E R T S : There was a statement made by 

me regarding the legality  of this operation and perhaps 
the ethics involved and Mr. Lew is told me if  there was a 
question of his professional ethics I  should go to the B a r 
Association and I  sim ply told him I  had considered doing 
so. Someone else has done so. I  also stated I  had con­
sidered whether or not the Giovernor should be asked to 
make a complete investigation of this whole matter. I  said 
I  was considering it, that is a ll, and I  am still considering 
it.

M R. L E W IS : A t that same meeting M rs. Lam berts
stated very fla tly  she had no objection to the bar continuing 
to operate so long as I  had nothing to do with it. She said 
the bar could operate with anyone else except, “ I  don’t 
want A1 Lew is to have anything to do with it ” .

* # #
M R. B A R T O : I  think we have heard anough about what 

was discussed between you. Now, Mr. Lew is, would you 
like to ask some questions of the Chief and/or L t . Szum- 
ski?

(17)
M RS. L A M B E R T S : Relative to this question only.
M R. L E W IS : Relative to any question which has come 

up in  this hearing.



Chief of Police, W IL L IA M  JO H N SO N , having been previ­
ously sworn, assumed the stand.

# * #

418b
Exhibit 2 —  Safety Committee Hearing, Nov. 13,1962

Testimony of William Johnson

M R. L E W IS : Mr. Johnson, do you have a copy of Form  
1800 dated May 15, 1959?

(18)
M R, JO H N S O N : May 15, ’61?
Q. ’59.
A . Yes, this is the one.

# # #
Q. And a copy of that was filed with the C ity  C lerk and 

Liquor Control Commission?
A . I  am assum ing they were. That is the usual pro­

cedure.
* * #

M R. L E W IS : A t that time, Mr. Johnson, I  was in-

(19)
vestigated by the Grand Rapids Police Department as man­
ager of the B arnett’s bar?

A . Yes, sir.
Q. That was approved at that time?
A . Yes, sir. * # *

(21)
A. W hile L t. Szum ski is going through the records —  at 

the time of our hearing subsequent to the Liq u o r Control 
Commission hearing it was evident you were representing 
Mrs. Ettress and thereby you were attorney fo r the bar 
and also represented her.



(22)
Q. D id  you, or someone at your direction, write to the 

Liquor Control Commission and ask for a new investiga­
tion of this transfer?

A . That request was made, as I  recall, by L t . Szum ski.

(23)
Q. When was that request made?
A. I  would refer that question to the Lieutenant. It  

was in  the spring of 1962.
Q. I  am going to object to L t. Szum ski coming to the 

witness and g iving him inform ation.
# # *

M R. L E W IS : * * * Is  it true, Mr. Johnson, prior to
A p ril of 1962 you made a request to the Internal Revenue 
to close this bar?

A . Form al request I  did not make.
Q. A ny type of request?
A. I  discussed this with the Internal Revenue.

# #
(24)

A . My position was the same as today. I  fe lt because 
of delinquent city taxes and federal taxes certainly you, 
as a prospective licensee, would be undesirable. I  made 
that clear to Mr. Fo rell.

Q. So at that time your position was, because Mrs. 
Ettress owed taxes, I  was undesirable for this transfer, is 
that correct?

A. That is substantially correct.
Q. D id  Mr. Fo re ll claim  to you that I, Alphonse Lew is, 

Jr ., owed these federal taxes under discussion?
A . You, as a personality, did not enter the picture.
Q. W as it  your position the license should not be trans­

ferred?
A . That is correct —  transferred to you.

419b
Exhibit 2 —  Safety Committee Rearing, Nov. 13,1962

Testimony of William Johnson



Q. You knew if  the license was transferred the taxes 
would be paid, d idn’t you?

A . I  did not.
#  #  m

(25)

Q. D id you know the federal tax liens on this property 
had been released prior to this time, and some other tax 
liens had been released?

A . I  did —  some of them had.

420b
Exhibit 2 —  Safety Committee Hearing, Nov. 13,1962

Testimony of William Johnson

(26)

A . Yes, they said in the letter of A p ril 6, 1962, and this 
is addressed to the Police Departm ent:

“ The 1961 license has been returned to the location 
being operated under power of attorney issued by the 
licensee.”

Q. That letter was never brought to the attention of 
this committee until some time in Ju ly  when a copy was 
sent to Mr. K ilp a trick  for this committee?

A . I  believe the members of this committee were well 
aware of the existence of this letter, Mr. Lew is.

Q. I f  the members were aware of it, w ill you tell us 
why they passed a resolution asking under whose name 
the Class C license was now being operated and who the 
licensee was supervising the operation?

A . Again, I  am not under the position to second-guess 
the Safety Committee, but that was a confirmation of what 
they suspected and knew.

# # *
(27)

A . I  discussed it  with the members of the committee 
—  not the letter itself, perhaps —  but the substance in 
which they referred to the com plexity of this whole thing.

Q. On Ju ly  31, 1961 do you know whether or not B a r­
nett s B a r was open from  twelve to two on Mondav morn­
ing —  Ju ly  31, 1962.



A . I  do not know as a fact it was open from  twelve 
until two. I  understood you were considering it  and did 
later open during those two hours.

#  #  #

(28)
Q. Le t me ask you th is : Do you feel it  is  w ithin your 

authority as Chief of Police to assist a person in breaking 
written contract?

A . I  do not.
Q. Is n ’t it  true you told me in December of 1961 Mrs. 

Ettress did not want to sell to m e; therefore, that was the 
reason you were holding it  up?

A . I  did, and the reason fo r that was that Mrs. Ettress 
came to our Department and discussed this in  detail with 
L t. Szum ski. A t no time did I  ever try  to have M rs. Ettress 
break a contract.

Q. D id  L t. Szum ski take a statement from  M rs. Ettress?
A. Yes.
Q. May was have it please?
M RS. L A M B E R T S : Mr. Barto, I  thought we had dis­

cussed at the beginning of this we were going to allow until 
twelve o ’clock for M r. Lew is to present what he wanted 
to present. It  is  five minutes to twelve.

M R. M IL L E R : We have in previous hearings estab-

(29)
lished the license was in  M rs. E ttre ss’ name and she has 
since become bankrupt and asserts no control over the l i ­
cense but the bar is, in  fact, operated solely by Mr. Lew is 
for his benefit. We feel at this time there has been no 
refutation of this evidence and that there is sufficient evi­
dence for the C ity  Commission to act at this point and suffi­
cient evidence for them to form  a decision. We have re­
quested and do request this matter be brought to conclusion 
on what we claim  to be a technically unlawful and illegal 
operation. * * *

421b
Exhibit 2 —  Safety Committee Hearing, Nov. 13,1962

Testimony of William Johnson

#  #  #



(30)

M RS. L A M B E R T S : * * * Now, either we are going to 
allow him to control this or the committee to control it.

M R. B A R T O : I  think by listening to what he has to say 
— I  don’t think he is controlling the meeting. I  am getting 
tired of a lot of this but when you set a definite time you 
give the im pression your mind is made up and that is it. I  
know some of this is repetitious.

*  # #

422b
Exhibit 2 —  Safety Committee Hearing, Nov. 13, 1962

Testimony of William Johnson

M R. L E W IS : When a committee sets a hearing and 
raises certain issues, then the issues go a ll over the lot. It  
may take quite a few witnesses to undo some of the things 
which have been said here. There is no question the com­
mittee has made up its m ind; some of the members at 
least, but as was said before, I  am not responsible for the 
delays. I  tried in  the beginning to lim it the issues but

(31)
everything has gone into hearing, including why I  don’t 
b ill my clients monthly.

# # #

M R. M IL L E R : A re you opposing the bankrupt’s peti­
tion to have the license handed over to the Trustee in bank­
ruptcy ?

M R. L E W IS : No, but this committee has put us in a 
dilemma because it is so antagonistic and it is a threat

(32)
to the license.

# # #

M R. V A N D E N  B E R G : I  should like to move we officially 
close the hearing at twelve-fifteen. I  don’t believe we are 
going to get any testimony relevant to the determination of 
this committee’s decision on the revocation of this license.



(33)
M R. L E W IS : That motion I  object to and I  think it 

is completely out of order because a committee could not 
make motions prior to the conclusion of a hearing. * * *

423b
Exhibit 2 — Safety Committee Hearing, Nov. 13,1962

Testimony of William Johnson

M R. M IL L E R : Do you have an appointment as re­
ceiver, or any other court appointment, allowing you to 
operate this license, or from  the trustee in bankruptcy g iv­
ing you authority?

M R. L E W IS : I f  you would look at the agreement be­
fore the Liquor Control Commission May 15, 1959 you w ill 
see the authority for control of this license was put in 
C ircu it Court. A ll rights were transferred to C ircu it Court 
and that court has exercised its rights hy the issue of an 
injunction August 3, 1962. * # *

(36)
M R. L E W IS : Mr. Johnson, isn ’t it true that one time 

when I  was talking to you, you said maybe Mrs. Ettress

(37)
wanted more money fo r this license? Do you recall that?

#  #  *

Now, Mr. Johnson, isn ’t it  true under the Liquor Con­
trol Commission investigation financial arrangements for 
the sale and transfer of a license are investigated by the 
Liquor Control Commission prior to the time it is sub­
mitted to the Police Department for investigation?

A . That is correct.
Q. The financial arrangement is not in the province of 

the Police Department, is it?

(38)
A . We have an au xilia ry  interest in  that, Mr. Lew is.



Q, You have an au xilia ry  interest in  the financial ar­
rangement ?

A . That is right.
Q. A ll the licensee has to do is complain to you they 

are not getting enough money, or not enough net, and you 
feel you have responsibility in  that connection?

A . We are in  position to make it  known to the investi­
gators of the Liquor Control Commission.

M E. B A E T O : Mr. Lew is, we agreed we were going
to terminate this hearing at twelve-fifteen. A s of today 
the hearing is terminated.

M E. V A N D E N  B EEG r: I  move we ad|purn.
M E. L E W IS : Mr. Barto, you w ill recall we agreed

certain exhibits were to be introduced by Mr. M iller and 
m yself. There are quite a few I  would like to introduce. 
Apparently this committee has decided they do not wish 
to give me a fu ll and complete hearing.

M E. B A E T O : The committee w ill go into this and you 
w ill be notified by the clerk as to the outcome of this.

424b
Exhibit 2 —  Safety Committee Hearing, Nov. 13,1962

Testimony of William Johnson



lc
Appendix B  —  Opinion of the District Court 

A P P E N D I X  B

OPINION
(222 Fed. Supp. 349)

U N IT E D  S T A T E S  O F A M E R IC A  
IN  T H E  D IS T R IC T  C O U R T O F T H E  U N IT E D  S T A T E S  

F O R  T H E  W E S T E R N  D IS T R IC T  O F M IC H IG A N  
S O U T H E R N  D IV IS IO N

A lphonse Lewis, J b .,
Plaintiff,

vs. C iv il Action No. 4431
City o f  Grand Rapids, Michigan, et al.,

Defendants.

Th is action involves the denial of a transfer and u lti­
mate revocation by the Chief of Police and the C ity  Com­
m ission of Grand Rapids of the only negro-owned-operated 
Class C liquor license in a city of over 200,000' population.

P la in tiff Alphonse Lew is, J r ., a negro, claim s the refusal 
to transfer the license of B arnett’s B a r from  P atricia  
Ettress B ell, a negro, to him and D r. Cortez En glish , a 
negro, denied him his constitutionally protected rights of 
due process and equal protection of the law guaranteed by 
the Fourteenth Amendment of the Constitution of the 
United States.

P la in tiff further claims that W illiam  A . Johnson and 
certain C ity  Commissioners conspired to delay and deny 
the transfer of the Class C  license of B arnett’s B a r to him 
in violation of the Federal C iv il R ights A ct of 1883.

The case was introduced first into the Federal D istrict 
Court for the W estern D istrict of M ichigan, Southern 
D ivision, in  a voluntary bankruptcy proceeding by P atricia  
Ettress B ell, In  the Matter of P atricia  Ettress B ell, Bank­
rupt, In  Bankruptcy No. 21,695-B.



The Bankruptcy Court issued restraining orders against 
the C ity  of Grand Rapids and designated city  officials, re­
straining them from  taking any action which would ad­
versely affect the claimed ownership by the Trustee of the 
license at B arnett’s B ar.

P la in tiff Lew is commenced this action to secure his con­
stitutionally protected rights, and to restrain the C ity  of 
Grand Rapids and its designated officials from  interfering 
with these constitutional rights.

To better understand this case, the Court presents a 
chronology of events adduced by the evidence.

B arnett’s B a r and Lounge was owned and operated by 
Stanley Barnett until his death in 1946. The B a r was then 
operated by Stanley Barnett, Jr ., as adm inistrator, until 
his death in 1948.

Menso R . Bolt and Alphonse Lew is, J r ., operated the 
B a r thereafter as successor adm inistrators of the Stanley 
Barnett estate. In  1952 the ownership of the B a r was trans­
ferred to P atric ia  Ettress, the minor daughter of Stanley 
Barnett, J r .

D uring the m inorship of P a tric ia  Ettress, the B ar was 
operated by her mother, Louise Baldw in, and by her step­
father, Jesse Baldw in. Their agreement to purchase the 
bar from  P atric ia  Ettress was never executed.

The B a r was closed for a period in 1958 and 1959, and 
was reopened in May of 1959. It  is the judgment of this 
court that P atric ia  Ettress B e ll found it difficult to finance 
the B a r ’s reopening and operation in M ay of 1959. She 
had to look ultim ately to Mr. Lew is for the necessary 
finances.

In  preparation for reopening the B ar, P atric ia  Ettress 
secured a loan of $3,000 from  Alphonse Lew is, J r ., by 
executing a chattel mortgage to him covering “ a ll licenses, 
a ll furniture, furnishings and equipment”  in the Bar.

On May 15, 1959, the Grand Rapids Police filed their 
report with the M ichigan Liq uo r Control Commission (here­
inafter referred to as the “ L C C ” ), approving Alphonse 
Lew is, J r .  as manager of B arnett’s B a r and Lounge.

On May 20, 1959, P atric ia  Ettress and Alphonse Lew is, 
J r .  entered into a m anagerial agreement whereby Mr.

2c
Appendix B —  Opinion of the District Court



Lew is was to manage the B ar, exercise certain concomitant 
powers, and receive a specified remuneration for his serv­
ices. The m anagerial agreement was drawn up at the 
suggestion and with the approval of the L C C  and made a 
part of its public files.

No further incidents involving official action occurred 
until August 1960. A t that time, a negro police officer for 
Grand Rapids, in  the course of his duties, became sus­
picious of gam bling activities in the basement of the build­
ing in  which the B a r was located. He was convinced that 
Mr. Lew is, as manager, did not know of these activities 
and so informed Chief Johnson. Th is officer reported his 
suspicions to Superintendent of Police W illiam  Johnson. 
Chief Johnson then employed a Saginaw  police officer, 
Sylvester Stephens, to investigate.

Officer Stephens frequented the B a r for the fu ll first 
week of August. He turned over his inform ation to the 
Grand Rapids Police, and this body raided the building 
some time in the early part of August.

On August 11, 1960, a violation report was filed with 
the L C C  against P atric ia  Ettress, charging that gam bling 
had been discovered on the premises of Barnett’s B ar and 
Lounge.

About the same time, P atric ia  Ettress entered into an 
agreement to sell the license to one Prank Reynolds. The 
check tendered M rs. Ettress by Mr. Reynolds turned out 
to be no good and the transfer was later cancelled.

On September 26, 1960, the Grand Rapids Police called 
the L C C  and requested that any Commission hearings on 
the alleged gam bling violation be postponed until the 
Police Court action was completed in Grand Rapids. A  let­
ter dated September 27, 1960 followed, explaining that to 
divulge inform ation to the L C C 1 at that time would seri­
ously weaken the cases in  Police Court, and thus, a post­
ponement was desired.

Mr. Baldw in and Mr. Coogan attempted to purchase 
the B a r and license in  October 1960. Th is application for 
transfer was withdrawn.

On November 10, 1960, P atric ia  Ettress entered into 
an agreement to sell the B ar and license to D r. Cortez

3c
Appendix B —  Opinion of the District Court



En glish . The agreement was drafted by Alphonse Lew is 
in his office. Th is transfer was to be contingent upon the 
Reynolds transfer not going through. Papers were not 
filed on this application with the LO G  until March of 
1961, after Mr. Reynolds rescinded his agreement.

From  December 9, 1960 to March 8, 1961, there were a 
series of communications between the L C C  and the Grand 
R apids Police concerning the status of the Police Court 
action on the gam bling charges. The L C C  was informed of 
a number of adjournments.

On March 6, 1961, form al applications for transfer were 
filed with the L C C  by D r. En g lish  and Mr. Lew is, as trans­
ferees, and P atric ia  Ettress, as transferor. These are the 
applications under consideration by a ll parties through­
out this suit.

M ay 10, 1961, P atric ia  Ettress wrote a letter to Mr. 
Lew is term inating his position as manager of the Bar.

In  M ay 1961, a Police Court hearing was held on the 
gam bling charges. A t that time four of the six  parties 
charged were dismissed. ’Two of the parties were bound 
over to Superior Court.

On May 15, 1961, Mr. Lew is was added as a party to 
the November agreement to sell between P atric ia  Ettress 
and D r. En glish . The amendment provided that Mr. Lew is 
would be a co-purchaser and partner with D r. En glish . 
Th is apparently was verbally understood on March 6, 1961, 
when the parties filed their application for transfer.

On M ay 29, 1961, Mr. Lew is submitted to P atric ia  
Ettress an itemized statement for $16,596.15 for loans and 
services rendered.

The L C C  on June 2, 1961, asked both the Grand Rapids 
C ity  Commission and the Grand Rapids Police to make 
their investigations of the pending transfer to D r. En g lish  
and Mr. Lew is. The letter to the Grand Rapids Police 
specifically stated that if  the parties were not recommended 
for transfer, reasons should be given.

The same day, Inspector Andrew J .  Spyk, Jr ., of the 
A llegan enforcement staff for the L C C , filed his investiga­
tion report with the L C C . In  it he recommended the trans­

4c
Appendix B —  Opinion of the District Court



fer be made, subject to the receipt of a birth certificate 
for D r. En glish .

The investigation report shows that the established pur­
chase price was to be $18,000, plus the cost of inventory, 
$400. The applicants were to invest $18,400 in the pur­
chase in the follow ing manner, according to Mr. S p yk ’s 
report:

$16,596.15—  the amount which the licensee, Mrs. Ettress, 
owed to Mr. Lew is for back salary as manager, for money 
advanced, and for services rendered as her attorney: $1,- 
920 —  money advanced to the licensee by D r. En g lish  for 
sales tax payments, license renewal and payments on ac­
count with the Internal Revenue Department.

These two figures total $18,516.15, and Mr. S p yk ’s in ­
vestigation report comments: “ Th is is the amount which 
the licensee owes the applicants and w ill be paid in lieu 
of cash. Statements are attached” .

The report goes on to show that the books and records 
of the B a r were carefully scrutinized and the Investigator 
recognized that there were tax liens against the present 
licensee. From  the investigation, Mr. Spyk stated that 
he was of the opinion that the licensee, M rs. Ettress, was 
the true owner.

Besides commenting that there was a violation pending 
against this establishment, the report shows that there 
existed also at that time a Department of Revenue stop 
against this license.

The Grand Rapids Police filed their investigation form 
1800 with the L C C  on Ju ly  11, 1961. The transfer was 
not recommended according to this form  because of the 
pending gam bling violations. The reasons for not recom­
mending were set out on the back of the form. The reasons 
included a statement that Mr. Lew is was manager of the 
B ar at the time the raid  took place.

Consequently, on August 7, 1961, the L C C  denied the 
transfer due to failure to receive a favorable recommenda­
tion from  the Police Department.

On August 21, 1961, Mr. Lew is requested an L C C  hear­
ing on the denial of the transfer claim ing that the pend-

5c
Appendix B —  Opinion of the District Court



m g violation did not involve the licensee or him self. None 
of the parties charged in the Police Conrt action were 
parties to this transfer. In  his letter, Mr. Lew is also 
pointed out that the transfer application had not yet 
come before the C ity  Safety Committee.

August 23, 1961, agents of the M ichigan Department of 
Revenue, armed with a warrant, attempted to close B a r­
nett’s B a r due to delinquent sales taxes. However, an 
agreement was entered, into whereby the Department of 
Revenue would not close the B ar if  $500 were paid that day 
on the delinquent taxes and if  P atric ia  Ettress turned over 
a ll the management to Mr. Lew is. Th is was confirmed by 
a letter from  the M ichigan Department of Revenue to 
Mr. Lew is dated August 25, 1961.

The $500 was paid by Mr. Lew is, and M rs. Ettress agreed 
to let him manage the B ar. Prom  August 23, 1961 to Sep­
tember 21, 1961, Mr. Lew is operated the B ar as manager 
under this verbal agreement.

The Department became dissatisfied with the arrange­
ment fo r paying the delinquent taxes, and wrote a letter 
to Mr. Lew is on September 12, 1961, em phasizing the need 
for weekly payments. It  was pointed out that the B a r was 
open only at the grace of the Department of Revenue and 
that they were confident that Mr. Lew is would clear up 
the problem.

W hile negotiations were still going on concerning the 
'State’s sales taxes, the B a r was closed by the federal au­
thorities on September 26, 1961, for delinquent federal 
taxes.

In  October, the federal authorities held a public tax 
sale of the personal property at the B ar. The sale was 
.made to Jesse Baldw in, however, he could not come up with 
the money and a new sale was noticed.

D uring October an attempt was made hv Mr. Lew is and 
the federal agent, Mr. Fo rell, to have the Grand Rapids 
Police complete the investigation on the transfer and send 
the 18001 form to the L C C .

In  answer to a letter of October 6, 1961, from the L C C , 
Officer Charles P . Skuzinski of the Gand Rapids Police, on 
October 11, 1961, reported that defendants Daniel Bethea

6c
Appendix B —  Opinion of the District Court



and Wayne W offord pleaded gu ilty to the gam bling charges 
filed in  August of 1960 in  the Superior Court for the C ity  
of Grand Eapids, Case No. 20097.

Th is report was false, and the events in  regard to the 
gam bling charges were as follow s:

In  May of 1961, an examination was held in the Police 
Court fo r the C ity  of Grand Rapids. A t that time the case 
against four defendants, including W esley Calloway, was 
dismissed.

Two of the defendants, Daniel Bethea and W ayne W of­
ford, in  Case No. 20097, were bound over to the Superior 
Court for the C ity  of Grand Rapids.

A fter the police court hearing, a new w arrant was issued 
against W esley Calloway, owner of part of the building 
in  which B arnett’s B a r was located, charging him with 
possession of gam bling paraphernalia. On June 12, he was 
arraigned in the Superior Court for the C ity  of Grand 
Rapids and stood mute. On October 2, 1961, he entered a 
plea of guilty.

On October 11, 1961, Lo u is John Educato, deputy prose­
cuting attorney, petitioned the Superior Court for an 
order nolle prosequi against Daniel Bethea and Wayne 
W offord, and the order nolle prosequi was entered pursuant 
to the petition on October 11, 1961.

A ll cases concerning B arnett’s B ar, except the vio la­
tion hearing pending before the L C C  had been at this 
time closed, either by dism issal by the m agistrate, or a 
nolle prosequi order in the Superior Court. The case in 
which W esley Callow ay pleaded gu ilty did not involve a 
violation of the gam bling laws at B arnett’s B ar.

On October 13, 1961, after dism issal of the charges, the 
L C C  prom ptly sent the 1800 investigation forms to the 
Grand Rapids Police Department fo r its investigation in 
the transfer matter.

Mr. Lew is directed a letter to the L C C  on October 16, 
1961, requesting a speedy hearing on the gam bling vio la­
tion filed with the L C C . The letter contains a statement 
to the effect that the transfer is desired soon so that the 
sales taxes can he paid in  fu ll.

On October 18, 1961, a new management agreement was 
entered into between P atric ia  Ettress and Alphonse Lew is,

7c
Appendix B  —  Opinion of the District Court



Jr ., g iving Mm broad powers in regard to the operation of 
the Bar.

October 21, 1961, Mrs. Ettress wrote to the L C C  raisin g 
a question with regard to the proposed sale price of the 
license to D r. En g lish  and Mr. Lew is. She wanted the 
purchase to pay a ll her debts.

The alleged gam bling violation was heard by Kenneth 
J .  Daniels, Commissioner of the L C C , on October 31, 1961. 
A t this hearing, M rs. Ettress was represented by Alphonse 
Lew is, J r .  A t the close of the hearing that day, Commis­
sioner Daniels stated:

“ W ell, in  regards to the second count, Counselor, 
unlaw fully permit on the licensed premises, gam ing 
or gambling, to-w it; accepting of and/or placing of mu­
tual bet slips on August 5th, there is no testimony of­
fered that any bet was made on that date, whatsoever. 
There was an attempt which was denied. I  shall dism iss 
that. There is no evidence of gam bling devices or para­
phernalia, mutual bet slips, on the date of August 
5th. I ’m going to dism iss that, but I  want to say this, 
Mrs. Ettress —  there is  no doubt in  my mind there 
has been some gam bling activities in  your bar with 
the knowledge of your bartender, and the bartender ’s 
name slips me now, I  believe Dan —  he certainly had 
knowledge of what was going on. Th is is not perm is­
sible. I ’m glad you’re going out of the business and 
I  understand you’re going on?

M B. L E W IS : Yes.
C O M M ISS IO N E R  D A N IE L S : I ’m sure you’ll  he 

able to curtail the activities. I f  you ’re going to use 
the basement, I  would suggest you partition a part 
of it off to use. I ’ll  dism iss the charges against you 
here today, sir. That w ill be a ll.”

A n  order was entered that day dism issing the charges.
Accordingly, on October 31, 1961, a ll matters concern­

ing the alleged gam bling violation had been disposed of, 
including the violation hearing before the L C C . From  this

8c
Appendix B —  Opinion of the District Court



date forward, there were no gambling' charges against 
B arnett’s B ar.

According to the police investigation form  1800, the 
police investigation was made November 1, 1961. The 
form shows that recommendation for transfer was changed 
from  “ yes”  to “ no.”  It  also says, “ subject to final in ­
spection,”  and points out that the parties intend to re­
decorate. No reasons were ever listed for the negative 
recommendation. None could be listed at that time, since 
the 1800 form  had an affirmative recommendation until 
some time after Ju ly  31, 1962. The report was signed by 
Officer Skuzinski.

On November 1,1961, Mr. Arens, L C C  enforcement officer 
for Section 3, A llegan office, wrote the L C C  stating that 
Officer Edw ard Szum ski of the Grand Rapids Police re­
quested a transcript of the hearing before Commissioner 
Daniels.

Some time in  November, Mr. Lew is learned that a copy 
of the police investigation form  1800 had not yet been 
filed with the C ity  Clerk. He and the federal agent again 
visited the police department to ascertain the status of 
the investigation. A t that time they were told that the 
police were aw aiting the transcript from  the L C C  on the 
hearing.

On November 13, 1961, Mr. Lew is as chattel mortgagee, 
purchased the personal property of the bar at the second 
federal tax sale.

On June 20, 1961, Andrew J .  Spyk, Jr ., investigator for 
the L C C , filed his report, in  which he referred to the finan­
cial arrangement between the parties and stated that the 
investigation fo r the license transfer was complete. He 
called the gam bling violations to the attention of the L C C .

On November 13, 1961, M rs. Ettress sent the license to 
the L C C  and asked that it be held in escrow. She stated that 
she considered the application of D r. En g lish  and Mr. Lew is 
void.

December 5, 1961, M rs. Ettress again wrote the L C C  
asking if  the business could be run on a trustee or receiver­
ship basis. The transfer to Mr. Lew is and D r. En glish  
would be agreeable if  the price covered a ll her debts. She

9c
Appendix B —  Opinion of the District Court



requested that the license be removed from  escrow and that 
Mr. Lew is be appointed Trustee to operate the B a r accord­
ing to the terms declared by the Commission. She then 
requested reinstatement of the applications for transfer to 
D r. En g lish  and Mr. Lew is.

On December 5, 1961, the Grand Rapids Police Depart­
ment received the transcript of the hearing before the L C C .

December 14, 1961, M rs. Ettress appeared in  the police 
department offices and talked with Officer Szum ski. She 
was accompanied by W esley Calloway. A t that time 
Officer Szum ski took her statement to the effect that she 
did not want to transfer the license and receive in return 
a cancellation of her debt to Mr. Lew is. But she said she 
would favor a transfer if  provision was made to pay a ll 
her debts.

December 15, 1961, a general power of attorney in  favor 
of Mr. Lew is for Mrs. Ettress was filed with the L C C .

Mr. Lew is again approached the police department con­
cerning their investigation. He talked to Officer Szum ski 
in  his office about completion of the 1800 form. Officer 
Szum ski advised Mr. Lew is that the Chief of Police had 
said to “ sit on”  that form. Officer Szum ski pointed to a 
drawer in  his desk and sa id : “ I t ’s right in  there and that’s 
where it  is going to stay” .

Confusion was added at this time when Mr. Lew is learned 
that the L C C  supposedly had called off the investigation. 
A fte r Mr. Lew is found that the investigation was to con­
tinue, he was told by Chief Johnson that Mrs. Ettress did 
not want to transfer and, therefore, nothing had to be done.

December 19, 1961, five days after her statement to the 
police, Mrs. Ettress informed L C C  enforcement supervisor, 
Mr. Arens, that she was not interested in transferring to 
Mr. Lew is and D r. En glish , but that she would transfer 
to a Mr. Eaddy. The same day P a tric ia  Ettress wrote 
the L C C  asking to cancel the transfer to Mr. Lew is and D r. 
En glish , and predicting the transfer to Mr. Eaddy.

The transferees, Mr. Lew is and D r. En g lish , then filed 
a suit in  the C ircu it Court of Kent County for specific 
performance, asking that M rs. Ettress be ordered to per­
form the transfer agreement entered into November 20,

10c
Appendix B —  Opinion of the District Court



1960, and amended M ay 15, 1961. Included in  this action 
was a request by the p laintiffs that Mr. Lew is he appointed 
receiver to run and operate the B ar. A t a show cause hear­
ing, C ircu it Judge Fred  N. Searl refused to appoint Mr. 
Lew is as receiver. M rs. Ettress was represented at this 
time by Mr. Roger Boer.

There is  a law in M ichigan which holds that an action 
for appointment of a receiver is necessarily ancillary to 
some other court action, and that an interested party can­
not he appointed receiver. See, e.g., M & M N at’l. Bank 
of Detroit v. Kent C ircu it Judge, 43 Mich. 363, 5 N.W . 627.

A fter this hearing, Mr. Boer withdrew from  the case 
and Mr. Charles Dewey continued to represent M rs. Ettress.

On Jan u ary 3, 1962, Mr. Lew is sent to the law office of 
Newton D illey, who employed Mr. Dewey, personal prop­
erty tax returns for M rs. Ettress.

Janu ary 11, 1962, Mr. Lew is directed a letter to the C ity  
Clerk requesting a hearing before the Safety Committee 
on this transfer.

On Janu ary 16, 1962, a meeting was held by the Safety 
Committee, at which the B arnett’s B a r license transfer 
was discussed for the first time. A t that time, one of the 
members of the Safety Committee was a local attorney, 
Mr. Berton Sevensma. When he learned that there was a 
Kent County C ircu it Court case pending in  this matter, it 
was moved that the hearing be adjourned in  order that 
Mr. Sevensma m ight investigate the status of the court 
case and report hack to the Committee.

On Janu ary 24,1962, the L C C  wrote Mrs. Ettress, approv­
ing her request fo r escrow of the license, and stated that 
the license would be so held until A p ril 30, 1962, pending 
transfer.

On March 20, 1962, while the hearings before the Safety 
Committee were pending, the C ircu it Court case between 
Mr. Lew is and M rs. Ettress, filed December 21, 1961, was 
settled. According to the settlement agreement, Mrs. 
Ettress agreed to transfer the license to Mr. Lew is and 
D r. En glish . It  was agreed that Mr. Lew is would act as 
receiver fo r the operation of the B a r during pendency 
of the proceedings fo r transfer. He has acted in  this 
position to date.

11c
Appendix B — - Opinion of the District Court



In  addition to the cancellation of the $16,596.15 owed 
by P atricia  Ettress to Alphonse Lew is, Mr. Lew is by this 
agreement was to assume and pay debts not to exceed 
$7,100 claimed to be due D r. En glish , Taylo r O ’H a rris, 
Decker, D avis & Jean, Mackey Insurance Agency, A rthu r 
Kram er or Dorothy Kram er, doing business as Kent Book­
keeping Service; personal property taxes to the C ity  of 
Grand Rapids, personal property taxes to the County of 
Kent, M ichigan Department of Revenue taxes, including, 
but not lim ited to, sales and business activities taxes; In ­
ternal Revenue Department for taxes, including, but not 
lim ited to, 1959, 1960 and 1961 withholding, personal in ­
come taxes and 1959 excise taxes; $1,700 for attorney fees 
to the law firm  of Rom & Newton D ille y ; and to save 
P atric ia  Ettress harmless on a ll claim s and obligations of 
Fred  W. Poel, Rosalind Bolt Larson, the heirs and as­
signees of the estate of Menso R . Bolt, and from  any claim  
of Arnold Levandoski, his estate, or his heirs or assigns.

Th is settlement agreement is p la in tiff’s E xh ib it 50, 
and it is attached to this opinion as Appendix 1.

The same day a request was filed by M rs. Ettress in the 
C ircu it Court asking that the L C C , Grand Rapids Police 
Department, and Grand Rapids C ity  Commission process 
and approve the transfer to D r. En g lish  and Mr. Lew is 
and served notice that Mrs. Ettress withdrew her previous 
objections to the transfer.

March 21, 1962, Mr. Lew is delivered a copy of this re­
quest to Chief Johnson and to the C ity  Clerk, the un­
official secretary fo r the Safety Committee, and to the 
L C C . Chief Johnson asked Mr. Lew is if  there would not 
be another investigation, and Mr. Lew is replied that none 
was needed; one had already been made.

March 22, 1962, C ity  Treasurer, Mr. Sim on DeBoer, 
sent a list headed, “ To Whom It  M ay Concern” , listin g  the 
personal property taxes due on B arnett’s B a r and Lounge 
for the years 1959-1961, as $713.78.

On March 27, the Safety Committee held another hear­
ing at which this transfer was discussed. The settlement 1

12c
Appendix B —  Opinion of the District Court

(1) This list was requested by some person or persons whose names were not dis­
closed at the trial.



was given to the Committee. Commissioner Sevensma 
stated that he had examined the C ircu it Court file and that 
the case had not yet been form ally dismissed. Mr. Lew is 
replied that the case would not be dism issed according to 
the terms of the agreement until transfer had been com­
pleted. Commissioner Lam berts testified that the request 
for approval of the transfer by M rs. Ettress and her attor­
ney, Mr. Dewey, was before the Committee at this time. The 
hearing was adjourned without further action.

B y  the settlement Lew is agreed to pay a ll the taxes owed 
to the C ity  of Grand Rapids, Kent County, the State of 
M ichigan and the United States due from P atric ia  Ettress 
[resulting] from  operation of B arnett’s B ar.

On March 27, the transfer proceedings were in that con­
dition from  which the license could be transferred to Mr. 
Lew is and D r. En glish , subject to payment of taxes by Mr. 
Lew is in  accordance with this agreement. The differences 
between Mr. Lew is and P atric ia  Ettress were resolved 
under C ircu it Court Action No. 65570, in  which P atricia  
Ettress was represented by independent, competent, and 
reputable counsel.

The Safety Committee, Commissioner Lam berts, Sevens­
ma and Barto, were fu lly  advised by this settlement agree­
ment of the fact that P atric ia  Ettress was the licensee and 
that Mr. Lew is was operating the B a r as receiver pending 
approval and transfer of the license to him and D r. English.

March 29, Mrs. Ettress executed an assignment of a ll 
right, title, and interest in  her C lass C license to Mr. Lew is, 
subject to the approval of the LO C . Th is apparently is a 
standard procedure pending the transfer of any license, 
since the assignment is made upon a form  provided by the 
L C C .

The same day M rs. Ettress appointed Mr. Lew is as her 
attorney to operate, run, and supervise the license at 
B arnett’s B ar. Th is power of attorney was to be revoked 
upon the transfer of the license with the approval of the 
L C C .

The follow ing day, M rs. Ettress and Mr. Lew is executed 
an agreement to the effect that the power of attorney did 
not affect the settlement agreement entered into on March 
20, 1962.

13c
Appendix B —  Opinion of the District Court



A ll these instruments were filed with the LO G .
A fte r receiving these settlement documents, the LC O  

through Mr. Edw ard F . Maloney, D irector of the License 
D ivision, prom ptly sent a letter dated A p ril 6, 1962, “ A tt: 
Chief of Police, Grand Rapids Police Department, Grand 
Rapids, M ichigan”  —  advising the Chief of Police that, 
“ We understand the violations and tax difficulties have a ll 
been resolved” . And, “ The 1961 license has been returned 
to the location where it is being operated under a power 
of attorney issued by the licensee” .

Thus, the L C C  prom ptly advised the C h ief of Police 
that the B a r was reopened. The letter continued:

“ It  is respectfully requested we be furnished the 
1800 forms with whatever recommendation the Police 
Department intends, in  order that we may clear up 
this matter as soon as possible.
_ “ We have a copy of notice No. 65570, in  which the 

licensee, P atric ia  Ettress, requests the local author­
ities in  Grand Rapids to perm it the transfer of the 
license.”

The letter also stated that the case had been complex 
and reminded Chief Johnson that the 1800 form s were sent 
to him on October 13, 1961. (See Appendix I I . )

Im m ediately after receipt of the A p ril 6 letter from  the 
L C C , Chief Johnson tried again to close B arnett’s B ar. 
W ith this purpose in mind, he called C ity  Treasurer DeBoer 
and asked him if  he had authority to close the B a r for 
delinquent city taxes. Mr. DeBoer informed Chief Johnson 
that he did not have this authority.

F a ilin g  in his efforts with Mr. DeBoer, Chief Johnson 
turned to Mr. Gordon Fo rell, local internal revenue serv­
ice officer. Chief Johnson and Officer Szum ski solicited 
the letter of A p ril 12, 1962, p la in tiff’s E xh ib it 7 (A ) (A p ­
pendix I I I ) .  Th is in  spite of the fact that Chief Johnson 
and the Safety Committee members were informed that 
by the settlement of March 20,1962, Alphonse Lew is agreed 
to pay a ll unpaid city  taxes, as well as the federal taxes 
referred to in the A p ril 12, 1962 letter from  Mr. Forell.

14c
Appendix B —  Opinion of the District Court



Chief Johnson was determined to keep the only negro- 
owned Class C liquor establishment closed. Both Chief 
Johnson and Commissioner Lam berts testified to many 
meetings in which they discussed the case of Alphonse 
Lew is and B arnett’s B ar. Commissioner Lam berts joined 
Chief Johnson in his efforts to close again B arnett’s B ar.

The next Safety Committee meeting wns held on A p ril 
17, 1962. The Committee discussed the transfer. Present 
were Commissioners Barto, Lam berts, and Sevensm a; 
Police Chief Johnson; Mr. Le w is; the C ity  Clerk, Mr. 
Stanton K ilp a trick , and his secretary.

The letter to the Grand Bapids Police from  Mr. Fo re ll 
was presented, whereby the police were asked to cooperate 
in a stop order. Th is letter took Mr. Lew is by surprise, 
since he and Mr. Fo re ll had worked together on getting the 
transfer culminated and had made v isits together to the 
police.

When the Committee discussed the efforts of the C ity  
Manager, George Bean, to assist in  this transfer, Mr. Lew is 
claimed that Mr. Bean had been told by the police that 
the investigation would be completed in a day or two. Chief 
Johnson claimed that was not what Mr. Bean had been told.

Mr. Lew is, who had asked Mr. Bean to investigate the 
delay by the Police Department in completing the 1800 
form, said that Chief Johnson was ly in g  in regard to Mr. 
Bean’s action —• and may have called Chief Johnson a 
liar. The Committee then insisted that Mr. Bean be called 
to clear up this conflict.

The testimony is in  conflict as to whether Mr. Bean’s 
statement before the Committee supported Mr. Lew is or 
Chief Johnson. Commissioner Lam berts testified, how­
ever, that Mr. Bean was never told just what Mr. Le w is’s 
position was. She finally went to Mr. Bean after the meet­
ing and discussed this matter in  detail.

The C ity  C le rk ’s minutes of this hearing show that 
Chief Johnson read two letters to the Safety Committee. 
The first was a letter dated A p ril 10, 1962 from the L C C  
to D r. En glish , asking whether the license was to be trans­
ferred to D r. E n g lish  alone, or to D r. En g lish  and to Mr. 
Lew is as partners. The L C C  was confused by the re­
quest for transfer filed March 20, 1962 by M rs. Ettress

15c
Appendix B —  Opinion of the District Court



which said she withdrew her objections to transferring the 
license to Alphonse Lew is “ o r”  D r. En glish .

The second letter read to the Safety Committee was the 
Fo re ll federal stop-order letter of A p ril 12 which Chief 
Johnson had solicited. The minutes do not show that the 
A p ril 6 letter from  the L C C  to Chief Johnson was intro­
duced, which on its face would have overcome Chief John­
son’s objections to the transfer.

Arm ed with the Fo re ll letter and the A p ril 10 letter, 
Chief Johnson sought to delay the transfer of this license.

B y  this time, it  seems that at least Commissioner Barto 
was aware that the stop-order letter of A p ril 12, 1962 had 
been requested by an officer in  the Police Department. He 
was also aware that Chief Johnson had called C ity  Treas­
urer DeBoer to see if  he could close the B ar. Commissioner 
Barto testified that in  a discussion with Chief Johnson 
outside the meeting, Chief Johnson told Barto that the 
reason he did not act on the transfer was the federal stop- 
order letter.

According to Commissioner Lam berts, it  was the action 
of Mr. Lew is at this meeting that created her dislike for 
him. It  is her claim  that when Mr. Lew is called Chief 
Johnson a “ lia r ”  or said he was “ ly in g ,”  an evident hatred 
of Mr. Lew is appeared.

On A p ril 19, Mr. Lew is directed a letter to the L C C  in 
answer to their letter of A p ril 10, stating that the trans­
fer was to be made to D r. En g lish  and him self as partners. 
A  copy was furnished to the Safety Committee. It  was 
clear at this time that the transfer was to be made to the 
partnership.

On A p ril 30, 1962, the application for renewal of the 
license at B arnett’s B a r was filed with the L C C , signed 
by Mr. Lew is as attorney in  fact. Beceipt of the $500 fee 
was noted. The renewal was granted.

Some time between A p ril 17 and A p ril 22, Chief John­
son, through Officer Szum ski, contacted d istrict supervisor 
A rthu r Arens and requested a new investigation by the 
L C C . Th is was a studied attempt by Chief Johnson to 
sh ift the tactic of delay to the L C C .

A s a result of this conversation, on A p ril 27, 1962, a 
memorandum was sent by Mr. Arens to Mr. W alter M.

16c
Appendix B — -  Opinion of the District Court



Noack, in  which reference was made to the L C C  letter 
of A p ril 6; to the Fo re ll letter of A p ril 12; to the claim  
that the Grand Rapids Police Department had no notice 
of the power of attorney; and to the fact that P atric ia  
Ettress was rem arried and now liv in g  in  F lin t as P atric ia  
Ettress Bell.

The answers to a ll these questions were contained in 
the March 20, 1962 settlement agreement, the letter of 
A p ril 6, the power of attorney on file with the LO G , and, in 
addition, in  the application for renewal of the 1962-1963 
license.
In response to the request of the Grand Rapids Police 

Department, on May 1, and in  answer to a letter of Mr. 
Arens, area enforcement supervisor, the L C C  authorized a 
reinvestigation of this transfer. The follow ing day, the 
LO O  sent a communication to Mr. Arens asking him  to 
accompany the investigator on this transfer. The LO C  
sent the previous investigation completed by Mr. Spyk 
and new investigation form s to Mr. Arens.

The same day, May 2, the L C C  sent its form letter to 
the Grand Rapids C ity  Commission asking that they take 
the usual action on this transfer and either recommend it for 
approval or disapproval. The Commission also sent its 
form letter to the Grand Rapids Police Department re­
questing that they investigate and stated: “ I f  you do not 
feel that the applicant or applicants are qualified fo r licens­
ing w ill you kin d ly give your reasons in detail, using the 
back of the 1800 form  . . . ”  (Em phasis added.)

On M ay 11, Mr. Arens sent a communication to the L C C  
stating that the delay in  the L C C  investigation was caused 
when Mr. Lew is told him that a ll the B a r ’s books were 
not available and would inform  Mr. Arens when they were 
available.

Mr. Arens testified at the November 7 revocation hear­
ing, however, that the first time he went to Mr. Le w is’s 
office he was told that a ll the books needed were in  a box 
which Mr. Lew is showed to Mr. Arens. W ithout looking 
at them, Mr. Arens claim s that they were not a ll there, 
but admitted that Mr. Lew is pointed them out. Mr. Arens 
did not examine these books at that time.

17c
Appendix B — ■ Opinion of the District Court



Mr. Lew is claim s that Mr. Arens would not look at the 
books at that time because Mr. Arens first wanted to talk 
with Mrs. Ettress. Mr. A ren s’s testimony on November 7 
supports this. Mr. Lew is agreed to attempt to reach M rs. 
Ettress at her new home in  F lin t and to have her come to 
Grand Eapids for an interview. A n y delay in the L O C ’s 
second investigation at this time was caused by Mr. A rena’s 
demand that Mrs. Ettress come to Grand Eap ids and his 
refusal to look at the B a r ’s books until M rs. Ettress was 
interviewed.

On May 28, Mr. Lew is wrote a letter to Mrs. Ettress 
asking when she could come to Grand Eap ids to see Mr. 
Arens. No answer to this letter was ever introduced at 
the trial.

June 1, 1962, the M ichigan Department of Eevenue wrote 
Mr. Lew is stating that they had reinstated the license, 
but still held a stop on the transfer. They wrote that 
they expected Mr. Lew is to clear up the tax problem.

Although the Safety Committee had fu ll knowledge of 
the named licensee, the receiver-attorney-in-fact Lew is 
operation, and the obligation of Mr. Lew is to pay a ll 
taxes —  facts contained in  the March 20 settlement agree­
ment and the A p ril 6 Maloney letter from the L C C , Com­
m issioner Lam berts at the Safety Committee hearing on 
June 5, blandly stated that she did not understand the 
situation and asked that another communication be directed 
to the L C C  for clarification.

Obedient to this instruction, the C ity  C lerk wrote a 
letter on June 7 addressed to the L C C , it contained two 
questions:

“ 1. Under whose name is the Class C establishment 
located at 58-60 Io n ia Avenue, S.W ., Grand 
Eapids, now being operated and is the present 
licensee personally supervising the operation?

2. W hat is  the status of the above application?”

Chief Johnson, Commissioner Lam berts, and any of the 
C ity  officials could have determined the answer to the first 
part of question number one by sim ply going to B arnett’s

18c
Appendix B  —  Opinion of the District Court



B a r and looking at the license which, because of the law, 
would be hung in  a conspicuous place in  the Bar.

A s stated above, they had the answer to the second part 
of question number one, as well as to question number 
two.

Th is letter was a tool in  the tactics of delay and denial.
On June 8, Supervisor Arens wrote the L C C  that he was 

holding the prelim inary investigation in  the d istrict office; 
that Mr. Lew is was to notify him when the books were 
ready; that he attempted to see Mr. Lew is on the 6th, but 
that Mr. Lew is was not available. Tet, he failed to ex­
amine the books in Mr. Le w is’s office.

Mr. Arens and Mr. Lew is met on the 12th of June in 
Mr. Le w is’s office. Mr. Arens asked M r. Lew is to write a 
letter to the L C C  stating that the postponement in  the in­
vestigation was due to the unavailability of Mrs. Ettress. 
The letter was dictated by Mr. Arens, and taken back to 
the A llegan office. The actual letter was not received by 
the L C C  until August 6, 1962.

On June 18, Mr. Arens wrote the L C C  that Mr. Lew is 
had requested more time in order to secure additional in ­
formation concerning the transfer. Th is letter was fo l­
lowed on June 22 by Mr. Arens with a communication stat­
ing that the delay was due to the letter of June 12 asking 
to have the investigation postponed.

On June 29, Mr. Arens again wrote the L C C  saying that 
he was going to meet with Mr. Lew is on Ju ly  3; it  appeared 
however, that Mr. Lew is was unable to secure the neces­
sary papers to complete the transfer.

Another letter was sent by Mr. Arens to the L C C  on 
Ju ly  9, in  which he stated that the L C C  should order Mr. 
Lew is to allow the investigation to be completed. These 
successive letters are inconsistent with the letter dictated 
by Mr. Arens on June 12, whereby the absence of Mrs. 
Ettress was given as the reason for the delay. She was as 
available to Mr. Arens as she was to Mr. Lew is. In  
normal procedures, field investigators from the L C C  assist 
each other throughout the state on interviews.

Mr. Arens knew, understood, and participated in Chief 
Johnson’s and Commissioner Lam berts’ program of de­
lay and denial.

19c
Appendix B —  Opinion of the District Court



A s an example of his confused testimony, when asked 
why he thought a reinvestigation was needed, Mr. Arens 
replied that there was bankruptcy involved. No bank­
ruptcy issue arose until September 10, five months after 
the L C C  issued orders for the reinvestigation.

Mr. Arens also listed the dates when he tried to contact 
Mr. Le w is; parallel to these dates were dates on which he 
did talk to the police. Mr. Arens admitted that he worked 
closely with the Grand Rapids Police, so it is not su rp ris­
ing to find his manner evasive when certain questions con­
cerning the police were asked.

A t the regular Safety Committee meeting of Ju ly  24, 
the transfer transaction took on heightened importance. 
Present were Commissioners Barto, Lam berts and Yanden 
Berg (who had replaced Commissioner Sevensma on the 
Safety Committee as of M ay 1, 1962). Various representa­
tives of the news media were present with cameras and tape 
recorders. The transfer and its ram ifications already 
had received considerable coverage by newspapers and 
radio and T V  broadcasts. Mr. Lew is/ D r. En glish , Mrs. 
Ettress, her attorney Mr. Dewey, Chief Johnson and the 
C ity  Attorney were also present.

Seeking further reasons to delay this transfer, Chief 
Johnson stated that Mrs. Ettress, the licensee, lived , in 
Saginaw, although she actually lived in  F lin t. Chief John­
son claimed this was not desirable. Th is inform ation had 
been communicated to Mr. Arens and it was contained in 
his interoffice communicaton of A p ril 27, 1963.

The C ity  Attorney, however, pointed out that it was not 
a violation in its lf for a licensee to live in  another city. He 
cited Mr. Schuler, of Schuler’s Restaurant, as an example, 
and said other licensees did the same.

Federal Agent F o re ll’s letter of A p ril 12 to Chief John­
son about delinquent federal taxes was discussed. Mr. 
Lew is claimed Chief Johnson solicited this letter; but the 
transfer of the license could be approved subject to pay­
ment of a ll delinquent taxes through an escrow agreement.

Then, various city and federal tax problems were dis­
cussed. Commissioner Barto asked just why the trans­
fer could not be approved subject to the payment of taxes.

20c
Appendix B —  Opinion of the District Court



Mr. Lew is agreed that this was the simple and usual way 
to remove the impediment of unpaid taxes.

When Commissioner Vanden Berg asked Chief Johnson 
if  a ll the tax problems had been resolved and what his 
recommendations were, Chief Johnson held up the Fo re ll 
letter, and said that he recommended disapproval because 
of this alleged federal stop order. Th is is the only reason 
Chief Johnson ever gave for denial of the transfer at any 
public Safety Committee or C ity  Commission hearing when 
Mr. Lew is was present prior to the October 24 meeting.

When the discussion turned to payment of taxes through 
an escrow agreement, C ity  Treasurer DeBoer objected to 
anyone being made escrow agent except him self. In  fact, 
Mr. DeBoer testified that an arrangement had been made 
for money to be placed in escrow to pay the outstanding 
taxes. Therefore, on Ju ly  24, when Chief Johnson held 
up the Fo re ll letter as a reason for denial, Ms objection was 
without any substance.

Commissioner Lam berts pointed out that the Safety 
Committee had not received an answer to the Committee’s 
letter to the L C C  of June 7. When Mr. Lew is reminded the 
Committee that the letter of A p ril 6 from  the L C C  to the 
Grand Bapids Police answered their questions, Commis­
sioner Lam berts said she refused to accept this letter as 
an answer to the Committee’s letter —  an obviously dilatory 
tactic.

Commissioner Barto agreed that the A p ril 6 letter an­
swered in substance the Com m ission’s questions posed in 
the June 7 letter.

According to Commissioner Barto and the minutes of 
the Ju ly  24, 1962 hearing, Commissioner Lam berts said 
there would be no decision on this transfer until the letter 
of June 7 was answered. A ll persons present seemed to 
agree that the meeting was adjourned so that another 
letter could be directed to the L C C  and a definite answer 
could be obtained to the questions posed by the Committee. 
Clearly, the hearing was adjourned for three weeks.

Before adjourning, the Committee asked Mrs. Ettress 
to make a statement in regard to this transfer. She stated 
that the transfer was satisfactory to her as long as a ll her 
debts were paid. H er attorney was asked for his position,

21c
Appendix B  — -  Opinion of the District Court



and Mr. Dewey stated that the settlement filed on March 
20 was proper and that a transfer to Mr. Lew is and D r. 
En g lish  was in  the best interests of his client.

D r. En glish  made an im portant statement at this hearing. 
When given an opportunity to speak, he said he was dis­
turbed because no reason had ever been given him for the 
the Committee’s apparent disapproval of this transfer. 
Someone on the Committee said that this had nothing to 
do with D r. English.

D r. E n g lish ’s im pressions of the nature of the hearing 
were that he was treated more as a crim inal than as a 
citizen looking for a license. He believed that Commis­
sioner Lam berts’ attitude was very hostile, but that Com­
m issioner Barto was at the same time most courteous.

The Commissioners knew D r. En g lish  did not want to 
operate the B ar alone. He was only interested in the opera­
tion if  Mr. Lew is would run the B ar.

No one except Commissioner Lam berts and Chief John­
son cauld recall that reasons for apparent disapproval of 
this transfer were given at this open meeting, or at any 
previous meeting at which D r. En g lish  or Mr. Lew is was 
present.

Chief Johnson specifically testified at the November 30, 
1962 show cause hearing that the first time he gave reasons 
at a meeting at which the transferees were present was 
October 24, 1962, a hearing on revocation. He attempted to 
qualify this in his testimony at the tria l, but was obviously 
attempting to patch up the absence of reasons given be­
fore disapproval of the transfer on Ju ly  31." In  this 
respect, his testimony is self-contradictory.

Commissioner Lam berts claims a ll matters discussed at 
the hearings were reasons for disapproval of the transfer.

Th is court finds as a matter of fact that no reasons, other 
than Chief Johnson’s reference to the Fo re ll letter, were 
ever given.

Commissioner Lam berts claimed that a specific reason 
for the delay of any decision on the transfer was because 
the new investigation authorized on M ay 2, 1962, had not 
yet been completed by the L C C . Yet, this did not seem to 
hamper the Safety Committee on Ju ly  31 when it finally 
adopted a resolution disapproving the transfer, because the

22c
Appendix B  —  Opinion of the District Court



L C C ’s reinvestigation was at the instigation of Chief John­
son, and it was used as an excuse for delay.

A fter the Ju ly  24 hearing was adjourned for three weeks, 
someone on the Committee decided that the Committee 
should talk to Mrs. Ettress alone to find out what her real 
attitude was toward this transfer. Commissioner Vanden 
Berg said that he felt M rs. Ettress was afraid  to speak out 
at the public hearing.

The Safety Committee took M rs. Ettress into the C ity  
A ttorney’s office and questioned her without her attorney, 
Mr. Dewey, being present. It  is noteworthy that although 
given the opportunity, none of the Committee members 
testified that Mrs. Ettress said anything at this private 
meeting different from  what she had in the public hear­
ing.

A t this time Mrs. Ettress wanted the license transferred 
to Mr. Lew is and D r. En glish . Th is was in  her best inter­
est. I f  the Safety Committee and the C ity  Commission had 
acted favorably at that time, there would have been no 
subsequent bankruptcy.

There was a definite conflict in  the testimony as to whether 
the hearings on this transfer concluded on Ju ly  24, leav­
ing only the decision to be made, or whether the hearings 
themselves were adjourned for three weeks. Many present 
at the Ju ly  24, 1962, hearing were left with the impression 
that the hearings were adjourned to await the answer from 
the L C C  to questions which the Safety Committee thought 
v ita l to the issues; the minutes reflect that this was done. 
It  hardly seems possible that the decision only was ad­
journed.

On Ju ly  25 another letter was written by the C ity  Clerk 
to the L C C  seeking to find out whose name was on the 
license and if  the licensee was personally supervising the 
operation of the B ar. However, the minutes of the Ju ly  
24 hearing clearly show the Safety Committee was informed 
Mrs. Ettress was the licensee and Mr. Lewfis operated the 
B ar under a power of attorney.

That same day, Commissioner Lam berts called the L C C  
and received orally the L C C  answers to the questions 
raised by the Safety Committee’s letter. She was informed 
at that time that the license was issued to Mrs. Ettress and

23c
Appendix B —  Opinion of the District Court



that it  was being operated by Mr. Lew is under the power 
of attorney dated March 29, 1962.

August 3, the L C C  form ally answered the letters of the 
Safety Committee and pointed out that the inform ation 
had been given to Commissioner Lam berts by telephone 
on Ju ly  25. The letter said that the inform ation passed on 
by telephone was, in  substance, that Mrs. Ettress was 
still the licensee and that the B a r was being operated by 
Mr. Lew is under a power of attorney.

The court finds that Commissioner Lam berts knew and 
understood these facts from  A p ril 17, 1963, and through­
out a ll the rem aining proceedings.

Although either the hearings or the decision was ad­
journed for three weeks on Ju ly  24, the Safety Committee 
at a regular meeting for Ju ly  31, passed a resolution recom­
mending that the C ity  Commission disapprove the transfer 
to D r. En glish  and Mr. Lew is. The transfer matter was 
not on the agenda for the Ju ly  31 meeting, but Commis­
sioner Yanden Berg testified that a ll matters which had 
been tabled wTere autom atically on the agenda.

Commissioner Lam berts testified that the decision to 
disapprove probably could have been made on Ju ly  24, 
except that the meeting was short. She stated that the 
decision was made on Ju ly  31, instead of three weeks after 
Ju ly  24, because it was discovered that two of the three 
members of the Safety Committee had planned vacations 
which coincided with a meeting date three weeks after 
Ju ly  24.

No one testified whether Commissioner Lam berts re­
layed her telephone-call inform ation to the Safety Com­
mittee at that time. The Committee, however, did not wait 
for a form al answer to their letter of June 7, nor did they 
wait for the second investigation by the L C C  initiated at 
the request of the Grand Rapids Police Department.

They passed at the end of the meeting two resolutions 
bearing on this transfer:

“ 12801. Com. Lam berts moved that the request 
from  D r. Cortez A . En g lish  and Alphonse Lew is, J r . 
for transfer of ownership of C lass C license, located at

24c
Appendix B  — ■ Opinion of the District Court



58-60 Ionia Ave., S.W ., from P atric ia  Ettress, be recom­
mended for disapproval.

Carried.
Ye as: Corns Barto, Jam o, Lam berts, Sevensma, 

Sypniew ski, Yanden Berg —  6. Nays —  0 .”

“ 12802. Com. Lam berts moved that the C ity  Com­
m ission request the M ichigan Liquor Control Commis­
sion to suspend and place in escrow the Class C 
License, located at 58-60 Ionia Ave., S.W ., issued to 
P atric ia  Ettress (B e ll), until said license is trans­
ferred.

Carried.
Ye as: Corns. Barto, Jam o, Lam berts, Sevensma, 

Sypniew ski, Vanden Berg —  6. Nays —  0.”

The only written record taken at this meeting was the 
notes of the secretary to the C ity  Clerk. According to 
these m inutes: “ Motion made by Com. Lam berts and sec­
onded by Com. Yanden B erg that this request be denied 
on the basis of the Police Department recommendation 
and that a resolution be presented for action at the C ity  
Commission meeting. Motion carried.”

Before Janu ary 16, 1962, and throughout the entire pro­
ceedings, Mr. Lew is sought reasons for both the police 
department’s and the Safety Committee’s delay in proc­
essing the L C C  1800 form  and in  acting on the application 
for transfer.

No reasons (other than the Fo re ll letter) were ever 
given at any public meeting in the presence of Mr. Lew is 
or D r. English .

Mr. Lew is requested a public hearing with the rights 
guaranteed by due process, examination, confrontation, and 
cross-examination of witnesses. Th is the Safety Committee 
and the C ity  Commission steadfastly refused to do.

The court ruled any reasons not given in the presence of 
Mr. Lew is were inadmissable. Over the objection of the 
plaintiff, however, the court permitted the defendants to

25c
Appendix B —  Opinion of the District Court



introduce into evidence as part of a segregated record,® 
reasons which they claimed were the basis for their d is­
approval of the transfer.

It  is claimed the Safety Committee communicated to 
the Committee of the Whole and the C ity  Commission, its 
reasons for denial of the transfer. The court finds that 
the reasons, if  any, were post factum to the Ju ly  31 meeting 
of the Safety Committee, the Committee of the Whole, and 
the C ity  Commission.

These w ill be more fu lly  discussed hereafter in  this 
opinion.

Because of the action by the Safety committee and the 
C ity  Commission which disapproved transfer, and on the 
advice of her husband, Mr. Bell, P atric ia  Ettress B ell, on 
August 2, sent a letter of revocation of the power of attor­
ney she had given to Mr. Lew is to the L C C .

On August 6,1962, the L C C  on an interoffice memorandum 
summarized the history of this transfer and noted that the 
C ity  Commission did not recommend transfer, but requested 
that the license be placed in escrow. A  note was also made 
that Mrs. Ettress had filed a revocation of the power of 
attorney.

On August 6, the L C C  filed an order denying the transfer 
to Mr. Lew is and D r. En g lish  “ after considering the un­
favorable recommendation of the C ity  Com m ission.”  The 
escrow question was referred to the legal counsel for the 
Commission.

Mr. Lew is wrote the L C C  August 9, requesting a hearing 
on the Grand Rapids C ity  Commission action because no 
reasons were ever given him in support of the disap­
proval.

Mr. Lew is wrote a sim ilar letter to the C ity  Commission 
on August 13 asking for a rehearing.

August 16, the L C C  answered Mr. Le w is’s letter and 
said “ inasmuch as an appeal hearing before the L C C  would 
not accomplish the result you desire, your request for a

26c
Appendix B —  Opinion of the District Court

(2) Since this case was tried without a jury, a segregated record as such was not 
made. All evidence, however, which relates to post factum reasons given by the 
Commissioners in their testimony is, for the purpose of this case, considered as a 
segregated record.



hearing must be denied. We suggest you communicate with 
the Grand Rapids C ity  Commission . . . ”

In  relation to the escrow problem, the letter notes: “ It  
is the opinion of the L C C  legal counsel that in  the absence 
of any citation, due process, and hearing before the hear­
ing commissioner, it  is precluded from taking such action.”  

Another note in the L C C  file at this time says: “ Escrow  
is a voluntary arrangement by licensee; cannot be forced 
upon him without violation hearing.”

On August 21, Judge Stuart H offius of the C ircu it Court 
issued a tem porary injunction restraining Mrs. Ettress 
from interfering in any way with the transfer of the license. 
Th is in effect invalidated her attempted revocation of the 
power of attorney until a ll transfer issues were resolved. 
Th is injunction was later set aside by the C ircu it Court.

On August 29, the Grand Rapids C ity  Commission denied 
Mr. Le w is’s request for a rehearing on the transfer.

The C ity  Attorney, Jam es M iller, at the request of the 
Safety Committee, wrote the L C C  on September 4 claim ­
ing violation of Rule 17 and Rule 31 of the regulations by 
Barnett’s B ar, and requested the L C C  to suspend the l i ­
cense. The letter stated the Committee’s position that if  
the L C C  could not take this action, then the Grand Rapids 
C ity Commission must consider revocation of the license.

Mrs. Ettress filed a voluntary petition in bankruptcy 
on September 10. She was represented in the bankruptcy 
proceeding by Mr. Frederick Poel.

September 12, Mr. H ealy, attorney for the L C C , di­
rected a letter to the C ity  Attorney. Noting the C ity  A t­
torney’s letter of September 4, the Assistant Attorney 
General set out the steps necessary in finding a violation, 
if  any, of Rule 17 and Rule 31 by Barnett’s B ar. He 
stated an investigation would have to be made and certain 
hearings would follow before a violation of any Rule could 
be found.

On October 2, after citing certain facts about the l i ­
cense at B arnett’s B ar, the Grand Rapids C ity  Commis­
sion (or Safety Committee) ordered all interested parties 
to show cause why the license should not be revoked. The 
following day, the C ity  C lerk sent letters to a ll interested

27c
Appendix B —  Opinion of the District Court



parties stating that the first show cause hearing would be 
held October 16.

On October 10, in  preparation for the pending revoca­
tion hearings, Mr. Lew is distributed to a ll C ity  Commis­
sioners a statement of his position. In  this statement, he 
challenged a ll the purported reasons for action taken 
against this license; he made further accusations in re­
gard to the use of these reasons; and he demanded a fa ir  
public hearing, with the right to subpoena witnesses, cross- 
examine them, and have the hearings completely reported 
by a proper stenographer.

Commissioner Lam berts does not recall if  this state­
ment was introduced at a hearing when a reporter was 
present. The only transcripts available show conclusively 
that it was not. The challenges made by Mr. Lew is in  this 
statement were never publicly answered, accepted, or denied 
by either the Commissioners or by Chief Johnson.

October 11, the C ity  Attorney sent a carefully detailed 
letter to the C ity  Commission setting out certain ground 
rules fo r the conduct of a revocation hearing. He spe­
cifically advised that due regard for proper procedure 
be had.

Commissioner Lam berts’ comment on this letter was to 
the effect that the C ity  Attorney only makes 11 sugges­
tions”  to the Commission, and that the Commission sets 
its own rules. She clearly intended to continue to disre­
gard the constitutional, as well as the statutory mandates 
of due process.

The first revocation hearing was held October 16. No 
record of any nature was kept for this hearing. Accord­
ing to the testimony of certain parties, at least the follow­
ing occurred: When ground number five ®  in  the original 
resolution relating to crim inal activity was challenged by 
Lew is, the  ̂ C ity  Attorney recommended that this' pro­
vision be dismissed.

There was some confusion at this hearing as to whether 
the topic was revocation or transfer. It  appears that Mr. 3

(3) u '  ,UnlaAful activities have been allowed or suffered to take place in such bar
though wtth proper management and control by the licensee and owner, the same
should have been prevented, and . .

28c
Appendix B —  Opinion of the District Court



Lew is insisted at some of these hearings that what they 
were actually doing was rehearing the transfer issue.

A t the time of this first hearing, at least Commissioner 
Lam berts was aware of the court injunction against Mrs. 
Ettress, and she stated that she did not object to this re­
straint. However, she did contact Judge Hoffius and dis­
cuss the matter with him.

Present at the second hearing on October 24 were the 
Trustee in  Bankruptcy for M rs. Ettress, Mr. Nichols, his 
attorney, M urray DeGroot, and Mr. Lew is. Commissioner 
Lam berts again demanded that the license be placed in es­
crow. A t one point, Mr. DeGroot asked that Mr. Lew is 
be excused from  the meeting so that a proposal could be 
made. Th is was done. When Mr. Lew is returned, the C ity  
Attorney, Jam es M iller, asked Chief Johnson to give some 
“ good”  reasons why he objected to the transfer to Mr. 
Lewis.

Chief Johnson then gave as his reasons that Mr. Lew is 
did not have the proper temperament for a licensee; that 
as a lawyer he represented certain people in that loca­
tion; that he was a borderline operator; that he needed 
an entertainment perm it; and that he was open on Monday 
mornings from twelve o’clock to two o’clock —  legal, but 
the other bars do not do this.(4)

29c
Appendix B —  Opinion of the District Court

(4) 10/24/62 Safety Committee Hearing

Miller: Give us some good definite reasons.

Johnson: We did not recommend against Dr. English. We recommended against the 
transfer to the partnership. Our objections are he is a borderline operator. He 
has occupied a plural roll (sic). He has held the power of attorney. He has 
likewise represented people in Superior Court, people whom we have arrested 
down there. In two instances your operation has been a borderline operation. You 
are operating from 12 to 2 o’clock Sunday night. I admit it is legal, but if all 
bars elected to stay open those hours —

Barto: If it is legal —

Johnson: What about your quasi entertainment? You are right on the borderline. 
We maintain you should have an entertainment license.

Lewis: It has never been required.

Johnson: Since 1959 you have had a plural association and arrangement at that
location. You were Mrs. Ettress’ legal counsel; you were her manager, you 
operated with a power of attorney, you represented people in court who were 
arrested at that location. Because of these overlapping responsibilities I cannot 
indorse your plurality of associations.



Commissioner Barto testified that so far as he recalls 
this was the first time any specific reasons were given 
for disapproval of Mr. Lew is as a licensee at a public hear­
ing at which Mr. Lew is was present. Commissioner Jam o 
agreed that this was the first time any reasons were stated 
at a hearing, and this court so finds.

A t the close of the October 24 hearing, Commissioner 
Lam berts moved that Mr. Nichols be requested to take 
the necessary steps to have the transfer completed to him 
and then to have the license placed in  escrow.

A  memoradum in the L C C  file shows that on or about 
October 25, Commissioner Lam berts made a telephone 
call to someone in the Commission offices. The memo­
randum states that in  summary she said the follow ing:

(1) The L C C  was sh irking its responsibility with re­
gard to this license;

(2) The County Prosecutor may ask for a grand ju ry  
investigation of the L C C  in connection with com­
plaints concerning Mr. Lew is and this bar; in  re­
ply, the L C C  told Commissioner Lam berts that 
the Commission records were public and that they 
would be happy to make them available to a grand 
ju ry ;

(3) She stated she was in sympathy with the Police 
department’s unwillingness to approve Alphonse 
Lew is as a licensee because he makes his liv in g  de­
fending crim inal cases and his attitude toward 
the police in  court is reprehensible; that the same 
kind of people whom he represents frequent the 
bar and she agrees with the police that this is not 
proper.

R ichard Loughrin, who was Kent County’s Prosecuting 
Attorney in 1962, testified he had not considered calling 
a grand ju ry  investigation as claimed by Commissioner 
Lam berts.

Commissioner Lam berts and Chief Johnson would deny 
a license to Mr. Lew is because he practices as a defense

30 c
Appendix B —  Opinion of the District Court



counsel in  crim inal cases. Such a denial would penalize 
an attorney for perform ing Ms professional duty as a 
lawyer.

Such a denial is invidious discrim ination, because as 
is pointed out later in  this opinion, other attorneys actively 
engaged in the practice of law have owned, and do own, 
liquor licenses or interests in  a liquor license.

It  would indeed be a sorry day in the history of Grand 
Rapids and this country if  a lawyer should be penalized 
because he performs his professional duty as a lawyer.

On November 1, the Bankruptcy Court, after hearings, 
entered an order declaring the Trustee the owner of the 
license. The order was contested by Mr. Lew is, who claimed 
title in the license, and on November 7 a stay was filed, 
along with a petition for review of the order declaring the 
Trustee owner.

The third revocation hearing was held November 7. A  
court reporter was present and a transcript was made. 
The transcript shows in effect that certain witnesses were 
present and called to testify for the C ity. It  shows that 
cross-examination of these witnesses was lim ited by the 
Safety Committee for those who had the burden of show­
ing cause why the license should not be revoked. Particu­
la rly  interesting, but confusing and contradictory, is the 
testimony of Mr. Arens.

A t the close of the November 7 hearing, Mr. Lew is was 
in the process of cross-exam ining Mr. Arens. The Com­
mittee agreed that Mr. Arens would be considered under 
subpoena for the next meeting. A t the next meeting on 
November 13, Mr. Arens did not appear for further cross- 
examination.

Th is failure, plus the actual testimony of Mr. Arens on 
November 7, affects the weight, sufficiency and credibility 
of Mr. Jam o ’s testimony in this case and his conclusion 
that Mr. Lew is failed to cooperate with Mr. Arens.

A  reporter was present at the final hearing and a 
transcript of the proceedings was made. Certain witnesses 
were present for Mr. Lew is and the Trustee but the Com­
mission did not allow these witnesses to be called. Chief

31c
Appendix B  — ■ Opinion of the District Court



Johnson was not cross-examined thoroughly, because the 
Committee said it had set a time lim it on the hearings.

A t the close of the hearing, the Safety Committee recom­
mended, after setting forth five reasons, that the license be 
revoked unless placed in escrow by November 20.

The effect of this resolution can only be seen when cer­
tain legal facts, known to the Safety Committee, are con­
sidered. F irs t, the Bankruptcy Court had declared the 
Trustee to be the owner of the license, and, therefore, the 
only person who had a title interest in  the license, and 
the only person who, according to the letter of the L C C , 
could place the license in escrow.

Th is order, however, was stayed, and was made sub­
ject to review by the D istrict Court. Th is meant that the 
Trustee could not exercise his claim  of ownership and 
place the license in escrow, or do anything else, such as 
take possession of it. Mr. Lew is by his petition for re­
view had at least an inchoate interest in  the license and 
became, along with the Trustee, a proper person to act in  
regard to the license.

Since escrow is a voluntary arrangement, and since both 
the Trustee and Mr. Lew is had reasons for not placing the 
license in  escrow, the resolution was then, in  effect, an 
ultimatum.

On November 14, the Bankruptcy Court extended its 
stay order. The same day the Trustee petitioned fo r and 
got a restraining order issued by the referee restraining 
the C ity  Commission from  acting further in regard to 
the license.

Also, on November 14, Commissioner Lam berts sent a 
telegram to Attorney General K e lle y  setting forth the 
Safety Committee findings in  detail, and reporting that 
unless the license wTere placed in escrow by November 20, 
it would be revoked.

On November 19,1962, Mr. Lew is commenced the present 
case in this court.

On November 20, the Safety Committee reported to the 
C ity  Commission that because of their prior hearings 
and because of the fact that the license was not in escrow, 
the Committee asked the C ity  Commission to pass a resolu­

32c
Appendix B —  Opinion of the District Court



tion requesting the L C C  to revoke the license at Barnett’s 
B ar. The report also noted that personal property taxes 
in  the amount of $775.41 were due.

The resolution for revocation was adopted by the C ity 
Commission with only Mayor-Commissioner D avis d is­
senting.

November 21, the LC C ' wrote Commissioner Lam berts 
noting that her telegram to Attorney General K e lley had 
been referred to them. They recognized the bankruptcy 
jurisdiction concerning the license. The letter then point­
ed out:

“ * * # the M ichigan Liquor Control Commission 
would be pleased to enter the Bankruptcy Court and 
request permission to comply with its statutory obli­
gation to revoke this license upon being furnished 
with evidence showing that a proper hearing was held 
by the C ity  Commission of Grand Rapids, after due 
notice, and that the C ity  Commission acted to request 
revocation of the license.

‘ ‘ Th is evidence should consist of a copy of the 
notice and proof of service, a certified transcript of 
the proceedings showing the dates of the hearings, 
and who were present and absent from  the C ity 
Com m ission.”

On this same day, the Bankruptcy Court continued its 
restraining order against the C ity  Commission, subject 
to any determination in  the Federal D istrict Court on the 
case commenced by Mr. Lew is on November 19.

On November 21, this court issued a temporary re­
straining order and an order to show cause why a pre­
lim inary injunction should not be issued pending the final 
hearing of the claims in  the suit filed. Th is order re­
strained the C ity  Commission, its agents and employees, 
from sending the revocation resolution to the L C C  and 
from taking any other action until the show cause hearing.

A t the close of the hearing, the court continued the in­
junctive provision of the restraining order. The resolu­
tion was not sent to the L C C .

33c
Appendix B —  Opinion of the District Court



In  late January or early February, during the pendency 
of this case, Commissioners Lam berts and Jam o drove to 
Lansing to discuss transfer, revocation, and this present 
litigation  with the legal adviser to Governor Romney, Mr. 
Richard VanDusen.

They took with them specific exhibits and inform ation 
about this case. They sought assistance from  Mr. V an­
Dusen to persuade the L C C  to take action which by reason 
of the restraining order of this court they could not di­
rectly ask the L C C  to do. They sought to have the L C C  
cooperate fu lly  with the Grand Rapids C ity  Commission. 
Commissioner Jam o testified he had read the restraining 
order and knew its contents.

Th is is clear and compelling evidence of the continua­
tion of the conspiracy on the part of at least Chief John­
son and Commissioners Lam berts and Jam o to deny the 
constitutionally protected right of Mr. Lew is.

'There are certain general facts found by the court that 
do not fit into the exact chronological pattern, but which 
are extremely important if  one is to understand the whole 
fact picture. The testimony of certain witnesses also de­
serves comment.

Mr. Loughrin, former prosecuting attorney for Kent 
County, stated that no complaint was at any time filed 
with the prosecuting attorney’s office concerning the ac­
tion of Mr. Lew is, and that during his tenure into 1960 no 
request was ever made fo r a grand ju ry  investigation con­
cerning his matter. A s far as he knew, the prosecutor’s 
office never told Commissioner Lam berts that grand ju ry  
action was contemplated. Mr. Loughrin  said he knew 
that there was anim osity between Mr. Lew is and Chief 
Johnson, but that he could never pin down the source of it.

Prosecuting attorneys must work closely with the police 
department; this explains the fact that Mr. Loughrin  had 
a very difficult time explaining Chief Johnson’s attitude 
toward Mr. Lew is. A lso, Chief Johnson was present in 
the court room at a ll times when Mr. Loughrin testified.

The C ity  Clerk, Mr. Stanton K ilp a trick , said that he 
knew Mr. Lew is had made attempts to have the police in ­
vestigation form  1800 filed with the C ity  C le rk ’s office.

34c
Appendix B —  Opinion of the District Court



Th is form  was never made available to the Safety Com­
mittee through the C ity  C lerk before the disapproval of 
Ju ly  31. Safety Committee hearings on a transfer are 
not usually begun until a ll forms are on file, including the 
report of the police investigation, form 1800. Mr. K i l ­
patrick stated that it  was unusual for the 1800 form to 
require eight to ten months to be transm itted from the 
police department to the Safety Committee.

In  his nine years of investigation work for the L C C , Mr. 
Spyk said he had never seen a case where the police went 
into the affairs inquired of in  this case. He could recall 
no other time when the police had questioned the financial 
arrangement behind the transfer ; when the police had se­
cured a statement from the transferor that she did not 
want to transfer ; or that different taxes were owed by 
anyone connected with the license.

Negro Police Officer Dred Scott Madison stated that 
on his own investigation he gathered inform ation con­
cerning gam bling in the basement of the building in  which 
Barnett’s B a r was located. He reported this to Chief 
Johnson, and also told the Chief that on the basis of his 
talks with Mr. Lew is, Officer Madison was certain that 
Mr. Lew is was unaware of the gambling. Officer Madison 
also testified that he could recall no raid  on any other 
licensed business place in  his sixteen years on the police 
force.

Dred Scott Madison claimed that Chief Johnson prac­
ticed discrim ination, and cited his own demotion as evi­
dence of this discrim ination.

Mr. Charles Dewey, Mrs: E ttre ss’ attorney after Jan u ­
ary of 1962, stated that the settlement arrangements made 
in March of 1962 were aimed at avoiding bankruptcy. He 
also testified that at the Ju ly  24 hearing he remembered 
hearing no reason given as to why D r. En glish  and Mr. 
Lew is were undesirable transferees.

Mrs. Ettress related that she had worked the day shift 
on the bar since 1959 unless some substitute was obtained.

Mr. Lew is claimed that P atricia  Ettress B e ll took some 
$30,000 out of the business.

35c
Appendix B -—  Opinion of the District Court



Mayor 'Stanley D avis is by virtue of his position as 
M ayor also a C ity  Commissioner. He was absent from 
the meeting of the Committee of the Whole on Ju ly  24, 
when it is claimed that reasons were given by the Safety 
Committee for the disapproval of the transfer. How­
ever, Mayor D avis testified that he was aware of a ll the 
meetings and discussion of this transfer; and his best 
recollection is that the only reason for the disapproval of 
the transfer was the hatred of some C ity  Commissioners 
and Chief Johnson for Alphonse Lew is.

When the hearings fo r revocation culminated, Mayor 
D avis stated that he had not heard anything to warrant 
revocation and, therefore, voted against it. A gain  at 
that time, he was impressed with the obvious dislike of 
Mr. Lew is by some members of the C ity  Commission and 
Chief Johnson.

Commissioner Barto, Chairm an of the Safety Committee, 
recalled asking at one of the revocation hearings why the 
“ yes”  for recommendation on the 1800 form  had been 
changed to “ no” , when no reasons were given. He never 
received an answer.

Mr. Barto also testified that Mrs. P atricia  Ettress B ell 
and her attorney never made any claim  against Mr. Lew is 
at any of the hearings. Mr. Barto was also present when 
the Safety Committee members talked to M rs. B e ll alone, 
out of the presence of her attorney, Mr. Dewey.

A s far as the arrangement for taxes was concerned, Com­
m issioner Barto stated that an escrow plan had been set 
up whereby the due taxes would be paid upon transfer. 
In  fact, at one point Chairm an Barto told the Safety 
Committee that a ll it had to do was to approve the trans­
fer, subject to the payment of the taxes. He understood, 
at least, that if  the transfer was approved, the taxes 
would be paid.

When asked if  there was a fraction of the C ity  Com­
m ission controlled by Commissioner Lam berts, Mr. Barto 
replied, “ Sometimes I  think so.”

Commissioner Sypniew ski testified that no reasons for 
disapproval were ever given to Mr. Lew is in a public 
hearing. A ll the alleged reasons were given at the meet­

36c
Appendix B -—• Opinion  ̂ of the District Court



ing of the Committee of the Whole, or in  inform al discus­
sions among the various Commissioners. Great reliance 
was placed on what the Safety Committee reported con­
cerning this matter, for they had been working on this 
matter for some ime. He commented that although Mr. 
Lew is had repeatedly asked for reasons, none were given 
to Mr. Lew is. He also recalled that Chief Johnson did 
not give any reasons until the October revocation meeting.

When Commissioner Sypniew ski was asked if  he had 
seen gam bling on other licensed premises, he answered, 
“ as a citizen, yes.”

Mr. Yanden B erg was a member of the 'Safety Commit­
tee from  M ay 1, 1962 through the revocation hearings. He 
replaced Mr. Sevensma. When he came on the Committee, 
he said he was aware from all the other members how this 
particular transfer was going. He said he felt a need fo r 
quick resolution to the proceedings; that certain inform a­
tion, as requested by Commissioner Lam berts, was needed 
from the LO C  to bring an end to this lengthy hearing.

Commissioner Vanden Berg, who only attended two 
meetings of the Safety Committee at which the Barnett’s 
B ar license transfer was discussed, testified that reasons 
were given to Mr. Lew is at the Ju ly  24 and other Safety 
Committee hearings for their disapproval. The court, how­
ever, finds contrariwise.

Then, he added that it  was not normal for the Safety 
Committee to give the reasons because of possible embar­
rassment to the applicant. Mr. Yanden Berg testified that 
if  Mr. Lew is had asked for the reasons before the disap­
proval, Mr. Yanden B erg  would have asked him if  he really 
wanted them, and then would have given them. Th is is 
clearly contradictory.

When Mr. Vanden B erg gave his own reasons for d is­
approval, he listed: (1) Mr. Le w is’ plural relationship; 
(2) the conflict of interest; (3) a violation of the fiduciary 
position held by Mr. Lew is1; (4) an infraction of the law 
had occurred at the B a r ; and (5) taxes had not been paid.

These are set out only to show that his reasons conform 
conspicuously to Commissioner Sevensm a’s notes pre­
pared specially for this tria l, which were im properly used

37c
Appendix B  —  Opinion of the District Court



by Commissioner ‘Sevensma to refresh his recollection while 
he testified on these issues in court.

Mr. Vanden Berg stated, however, that he never inquired 
into the exact relationship Mr. Lew is had with M rs. B e ll 
as attorney; he did not know when Mr. Lew is had so served 
her, or how. Commissioner Vanden B erg never inquired 
whether the money owed to Mr. Lew is by M rs. B e ll was 
reasonable for his services performed. He stated that he 
had learned of the infraction through the newspapers — 
that someone had pleaded gu ilty in  gam bling charges at 
the B ar. He also testified that he did not know that Mrs. 
B e ll had worked the day shift at the B ar and had access 
to the money taken in. He never inquired why Mrs. B e ll 
did not pay the taxes.

Commissioner Vanden Berg also stated that at one time 
he heard Commissioner Lam berts say that Mr. Lew is would 
never have anything to do with this B ar. Commissioner 
Vanden B erg received his inform ation from  the news­
papers, Commissioner Lam berts, and Chief Johnson.

Commissioner Sevensma was a member of the Safety 
Committee from  1960 to May of 1962. Being the only at­
torney on the Safety Committee, he was given the task of 
investigating the Kent County C ircu it Court file when 
the first hearing was held on Jan u ary 16, 1962.

Commissioner Sevensma refreshed his recollection on 
direct examination from  notes which he especially pre­
pared for use at the tria l. When the court saw Mr. Sevens­
ma m aking reference to yellow legal pad note papers, the 
court asked the witness to submit these notes to the court 
for examination.

The witness admitted that these notes had not been pre­
pared at the time of the occurrence of the particular events 
in this case. The court then made the notes an exhibit in 
the case.

D irect use of such notes almost exclusively for the pur­
pose of refreshing recollection is dangerous and improper. 
It  subjects the w itness’ testimony to careful scrutiny. It  
casts a cloud of incredib ility and insufficiency over Com­
m issioner Sevensm a’s entire testimony. Parsons & De-

38c
Appendix B -—• Opinion of the District Court



Costa v. W ilkinson, et al., 113 U .S. 656, 28 L . Ed . 1037, and 
the cases growing out of Parsons.

In so far as other Com m issioners’ testimony conforms to 
the Sevensma testimony, it likewise casts a cloud over such 
other Commissioner witnesses’ testimony.

The danger involved from  such practice was particu larly 
emphasized to the court when Commissioner Sevensma tes­
tified as to his examination of the b ill of complaint in  the 
Kent County C ircu it Court action.

T h is testimony, his notes, and the reference to the b ill 
of complaint in  the C ircu it Court action, convince this 
court that the w itness’ testimony reflected post-factum 
judgment and conclusions to any of the events about which 
he testified.

In  regard to the money owed by P atric ia  Ettress B ell 
being equal to the debt claimed by Mr. Lew is, Commis­
sioner Sevensma said that he never sought to find out if  
the L C C  had investigated the financial arrangement for 
the transfer. He did know that this was within their 
usual jurisdiction. Commissioner Sevensma was aware 
that provisions had been made for the payment of the 
due taxes through an escrow agent.

Mr. Sevensma felt strongly about the nature of a liquor 
license; in  his opinion, whenever there was any sign of 
gam bling at a bar, the license should be revoked. H is 
own knowledge of gam bling in  this case was from hear­
say. He never read the pleadings or the record in the 
gam bling cases; he did not know that there was a pre­
lim inary exam ination; he did not know the facts surround­
ing the arrest and subsequent plea of gu ilty by W esley 
Calloway.

Although Commissioner Sevensma is an attorney and 
a form er deputy and assistant prosecuting attorney, yet 
he was content to rely on rumor, hearsay, speculation, and 
the vindictive attitude of a fellow commissioner, as well 
as of the Chief of Police. B y  this reliance, Commissioner 
Sevensma would deprive P atric ia  Ettress B e ll of the bene­
fits she would receive as a transferor, and he would also 
deny Mr. Lew is and D r. En g lish  a valuable Class C liquor 
license.

39c
Appendix B —- Opinion, of the District Court



In  effect, without knowledge of the facts, Commissioner 
Sevensma condemns Mr. Lew is for alleged condonation of 
unproven gam bling offenses on the licensed premises.

Upon such sh ifting sands of flim sy evidence Commis­
sioner Sevensma would impose the ultimate penalty of 
revocation of the Class C liquor license at B arnett’s B ar.

When Commissioner Sevensma on cross-examination 
was informed of the facts in  the alleged gam bling cases, he 
stated that if  he had known these facts, his judgment about 
the case would have been different.

Commissioner Jam o was elected in May of 1962. He was 
not a member of the Safety Committee, but attempted to 
keep in touch with the details of the Barnett’s B ar license 
transfer. He first stated that the evidence of gam bling 
in the B ar made the operation a very poor risk. H is  source 
of inform ation on the gam bling charge was Commissioner 
Lam berts, who told him that W esley Callow ay had been ar­
rested for possession of gam bling paraphernalia in  the 
B ar. He did not know that a ll cases concerning violations 
in B arnett’s B ar were dismissed.

Commissioner Jam o was not aware that the L C C ’s au­
thorized May investigation was actually a reinvestigation 
instigated at the request of Chief Johnson. He had dis­
cussed this matter with Chief Johnson, but did not see 
the 1800 form  before Ju ly  31. Commissioner Jam o ac­
knowledged that the form  1800 in evidence is inconsistent.

Mr. Jam o said that the unpaid taxes were a big hurdle 
fo r him. He explained he never was advised that the taxes 
could be paid out of the purchase price, fo r example, or 
that money could be placed in escrow to pay the taxes 
contingent on the approval of the transfer.

Commissioner Jam o stressed that this city needs Mr. 
Lew is in  his role as a negro attorney and not as operator 
of a bar, and that he should practice law and not run a 
bar. The court observes that if  Mr. Lew is has the good 
character and integrity necessary to practice law, he cer­
tainly ought to possess the character and integrity to 
operate a licensed liquor establishment.

Chief Johnson testified at the November 30, 1962 show 
cause hearing and at the tria l on the m erits. There were

40c
Appendix B —  Opinion of the District Court



two outstanding features about bis testimony at the No­
vember 30, 1962 hearing in Federal Court. F irs t, he clear­
ly  answered that the only time reasons fo r disapproval 
were ever given by him at a public hearing at which Mr. 
Lew is was present, was at the October 24, 1962 revoca­
tion hearing.

A t the tria l of this case, Chief Johnson attempted to 
c la rify  his testimony which he gave in  the Federal Court 
hearing on November 30, but this attempt only convinced 
the court that he was tryin g to escape the clear im plica­
tions of his first testimony. H is testimony during this 
tria l is conspicuously contradictory and incredible in  many 
respects.

Secondly, Chief Johnson’s appearance on the stand at 
the first November 30, 1962 hearing convinced the court 
that he hated Mr. Lew is. He testified with great diffi­
culty; he was quickly exasperated, and clipped off his 
answers. When extensive questions were asked by Mr. 
Lew is, the Chief grew redfaced and tightlipped; the blood 
vessels in  his head bulged out.

B y  his exposure on the witness stand, Chief Johnson dis­
played explosive anim osity and great hatred for Mr. Lew is. 
H is  testimony, plus that of the Trustee, Mr. N ichols/5) 
convinced the court that there were probable violations 
of constitutionally protected rights and compelled the court 
to retain this action for a fu ll hearing on the merits.

41c
Appendix B —  Opinion of the District Court

(5) “Mr. Nichols: * * *

“Now, as to whether or not I would actually go in there and operate this bar 
under these present complicated situations and the personal animosities as I 
have seen them demonstrated in the City Council offices and the Safety Com­
mittee, I wouldn’t want to operate this bar under any given set of circum­
stances.

“Q. (By the Court) What do you mean by the personal animosities of the City 
Safety Commission ?

“A. Well, your Honor, I feel very definitely that there are very personal feelings in 
this case. I feel that there are people on the City Commission who are ap­
proaching this problem with an entirely closed mind; that they do not propose 
to listen or hear.

We have off the record approached members about this. I explained to them
that my job as a trustee was to sell this property immediately. My counsel and
I had a package worked out whereby this bar was sold for money, and we had



W hile Chief Johnson was on the stand, his testimony, 
demeanor and attitude impressed upon the court the con­
clusion that the C h ie f’s actions in this case were motivated 
by malice.

Chief Johnson ordered the 1800 form  changed from an 
affirmative recommendation fo r transfer to negative after 
the Ju ly  31 action of the Safety Committee. Thus, at the 
time of the resolution of disapproval, the police investiga­
tion form  recommended transfer. The investigation had 
been completed by Officer Szum ski; Chief Johnson dis­
agreed with the results.

Th is is  p articu larly important, since the minutes of 
the Safety Committee meeting of Ju ly  31 show that its 
disapproval was based on the recommendations of the 
police.

We must remember that the 1800 form  was never made 
available to the Safety Committee before Ju ly  31. There­
fore, we reasonably in fer that the Safety Committee placed 
substantial reliance upon the personal recommendation of 
Chief Johnson — a recommendation rooted in hatred and 
motivated by malice.

When the Chief ordered the 1800! form  changed after Ju ly  
31 to coincide with his own recommendation, he neglected 
to see that the report was consistent. The report in  its 
changed form  states:

42c
Appendix B —  Opinion, of the District Court

(5) Continued—

an agreement of all parties, and I was assured that only over certain dead bodies 
would the transfer ever be permitted, and I think that that precludes any 
possibility of my operating this bar.

*  * *  *

RE-EXAMINATION BY MR. LEWIS:

“Q. Who was this animosity directed to that you testified to, Mr. Nichols?

“A. Well, Mr. Lewis, very obviously, in my mind, it is you.

“Q. Now, isn’t it true that if it could be worked out and you have been advised if 
it could be worked out so long as I have nothing to do with it, the bar could 
continue operating?

“A. I have heard that said publicly.”

(Tr. November 30 hearing, pages 95-96.)



“ From  your observations or conversation with the 
above person are you of the opinion that he (she) is 
properly qualified to conduct such a business!
Yes [x] No [ ]

“ Do you recommend granting this license — 
no . . I f  not, state reasons . . . ”

Therefore, contrary to the directive of the LO G  letter 
and the obvious demand of the 1800 form  itself, no reasons 
were stated on the form  why the transfer was not recom­
mended.

The court noted the speed with which the police dis­
posed of the Lew is investigation in 1961 —  they received 
notice to investigate on June 2 and sent their reply back 
on Ju ly  11. That time, however, they had stated a reason 
for not recommending transfer: there was a gambling- 
charge pending.

The second investigation by the Grand Rapids Police 
Department never did reach the Safety Committee. Form  
1800 recommending approval of the transfer was com­
pleted by Officer Szum ski on November 1, 1961. It  was 
changed by order of the Chief some nine or ten months 
later. It  was never sent to the L C C , although the L C C  
had requested its return with reasons.

Chief Johnson stated in his testimony that- the regula­
tions governing liquor licenses required cooperation with 
the police, and he fe lt that no attorney could fu lfill this 
obligation. Such a regulation was never intended to force 
licensees to become subservient to any unreasonable and 
unconstitutional demands of the police.

It  was pointed out that other attorneys were liecnsees in 
the C ity  of Grand Rapids, and the Chief said he knew this. 
But no- objection was ever made, nor could one reasoably 
be made, that these other attorneys because of their pro­
fession are unqualified to be licensees.

In  fact, this position by the Chief supports the court’s 
im pression that part of the personal vendetta by him 
against Mr. Lew is resulted from Mr. Le w is’ practice of 
his profession in tria l w ork: in  defending persons charged

4 3c
Appendix B  —  Opinion of,; the District Court



with crim es; in  particular, in  Mr. Le w is’ successful de­
fense of the persons charged with violations of the gam­
bling laws at B arnett’s B a r; and in the successful defense 
of Mrs. Ettress before the Liquor Commission. Chief 
Johnson wanted to close B arnett’s B ar, the lone negro- 
owned Class C liquor license in  Grand Rapids.

It  is common knowledge that any attorney who defends 
persons in crim inal cases has many occasions to disagree 
with police officers. There is testimony that Mr. Lew is 
on occasion was exceedingly aggressive in  his approach to 
such cases. Perhaps this is what the Chief meant by lack 
of ‘ ‘cooperation.”  Chief Johnson stated that he had dis­
cussed Mr. Le w is’ tria l techniques with Commissioner 
Lam berts many times.

From  these many discussions and the evident close co­
operation between Chief Johnson and Commissioner Lam ­
berts, the court concludes that Chief Johnson and Commis­
sioner Lam berts conspired as a team to revoke this license 
and to deny to Mr. Lew is his constitutionally protected 
rights.

Commissioner Lam berts testified longer than any other 
person at this tria l, with the exception, perhaps, of Mr. 
Lew is. Generally, her testimony was evasive, insufficient, 
inconsistent, contradictory, and incredible. H er disregard 
for jud icia l process and constitutionally protected rights 
of others is incredulous and ruthless. The line of demarca­
tion between fact and fiction in  her testimony is very thin.

H er whole attitude toward this matter and toward ju d i­
cial authority in  general was clearly displayed during the 
examination by the attorney for the Trustee in  Bankruptcy, 
Mr. HeGroot. In  answer to a question concerning the posi­
tion of the C ity  Attorney on procedure for the revocation 
hearings, Mrs. Lam berts replied that the C ity  Attorney 
only makes “ suggestions”  and that the Commission sets 
its own rules.

To emphasize the sassy tone of her voice, she punctuated 
her answer by sticking out her tongue at the attorney. H er 
facial grimaces had occurred before this, when she was on 
and off the stand. B y  “ Oh’s ”  and A h ’s ” , she expressed 
visible approval or disapproval of the testimony of other

44c
Appendix B —  Opinion of the District Court



witnesses. The court had permitted Commissioner Lam ­
berts to demonstrate graphically her attitude without re­
prim and until this time, since this was a tria l without jury.

The court is also aware of one time in  the course of this 
tria l when Commissioner Lam berts chose to demonstrate 
her omniscient attitude by expostulating that a certain 
question “ was not worthy of answer.”  W ith this in  mind, 
the court w ill delineate some of her testimony.

D uring the course of this transfer, Commissioner Lam ­
berts said she talked with Chief Johnson often, as well as 
with other members of the Grand Rapids police. She 
recognized that anim osity existed between Chief Johnson 
and Mr. Lew is. She heard that Mr. Le w is’ attitude toward 
the police was most disrespectful.

She claimed that her own dislike of Mr. Lew is arose at 
the A p ril 17 Safety Committee meeting when Mr. Lew is 
allegedly called Chief Johnson a lia r, or said Chief John­
son was lying. The only reasonable inference from  Com­
m issioner Lam bert’s testimony and attitude is that this 
was not the sole cause of her hatred for Mr. Lew is, but 
that something more was involved.

H er hatred for Mr. Lew is ante-dated A p ril 17, 1962. 
She claim s, however, part of her judgment against Mr. 
Lew is was based on what Chief Johnson told her.

It  is apparent that Commissioner Lam berts and Chief 
Johnson pursued this matter together after A p ril 17, 1962, 
and that the interests and prejudices of one became the 
interests and prejudices of the other.

Commissioner Lam berts admitted that the police investi­
gation form  1800 was never presented to the Safety Com­
mittee before its decision on Ju ly  31. She also acknowl­
edged that the answers on the 1800 form as it now stands 
are inconsistent.

Th is witness talked to other Commissioners outside the 
regular hearings about Mr. Lew is, and conveyed her dislike 
to them. Commissioners Lam berts and Vanden B erg re­
called, as did Chief Johnson, that the Chief gave reasons 
for disapproval in  public hearings before Ju ly  31. Com­
m issioner Lam berts did attempt to qualify her recollection 
by saying that everything that was discussed at the hear­

45c
Appendix B —  Opinion of the District Court



ings was a reason for disapproval. Th is is hardly an 
answer to the question: “ W hy was the transfer disapproved 
at that tim e?”

Commissioner Lam berts refused to accept the inform a­
tion conveyed by the L C C  to the Grand Rapids police on 
A p ril 6 as an answer to the Safety Committee’s questions, 
although Commissioner Barto, as Chairm an, said that the 
letter did in substance answer their questions.

When the A p ril 12 letter from  M r Fo re ll concerning the 
federal stop order was introduced, Commissioner Lam ­
berts phoned Mr. Fo re ll to check the tax position, because 
it appeared to be inconsistent with the A p ril 6 letter which 
stated that the tax problem had been resolved. She said 
she wanted to find out if  Mr. Lew is had lied to the L C C  
about the taxes.

Commissioner Lam berts admitted that the Committee dis­
cussed an escrow agreement arrangement for the payment 
of taxes at the time of the transfer.

Commissioner Lam berts stated that the Safety Committee 
requested the C ity  Attorney to write the L C C  concerning 
the violation of Rule 17 and Rule 31. She testified that 
“ we wanted to close the b ar.”

In  regard to the gam bling charges against the B ar, Com­
m issioner Lam berts said that Chief Johnson told her that 
a numbers operation was carried on at B arnett’s Bar. 
She said she knew the court dismissed four of the six 
charged in the gam bling, and that the prosecutor had peti­
tioned for an order nolle prosequi for the other two. She 
maintained, however, that does not mean that gam bling 
does not occur there. She stated that she chose to be­
lieve what Chief Johnson told her about the gambling.

Commissioner Lam berts agreed that neither P atricia  
Ettress B e ll nor any attorney representing her had ever 
made a claim  that Mr. Lew is had acted im properly in  
regard to the proposed transfer. Commissioner Lam berts 
herself never accused Mr. Lew is of faulty action at any 
Safety Committee or C ity  Commission meeting at which 
Mr. Lew is was present.

The attorney fo r the Trustee pointed out that in  the 
resolution calling for a show cause hearing on revocation,

46  c
Appendix B — • Opinion, of the District Court



the Safety Committee stated that the Trustee was exert­
ing no control over the license; that such lack of control 
on the part of the Trustee was a reason for the revocation. 
Commissioner Lam berts explained that by “ no control”  
she believed the Trustee was not cooperating with the 
Safety Committee to the extent he should have done so.

A t this time Commissioner Lam berts knew that the 
Trustee had tried to take possession of the license but 
that the order of the Referee had stayed any exertion of 
title until the petition for review had been heard. She 
insisted, however, that Mr. Lew is and the Trustee volun­
ta rily  place the license in  escrow or have it  revoked.

On A p ril 29, 1963, the court granted p la in tiff’s peti­
tion for renewal of the license in the name of P atricia  
Ettress under the M arch 20, 1962 agreement and the power 
of attorney to Mr. Lew is. Pursuant to this court’s order, 
the L C C  renewed the license pending the outcome of this 
case.

On M ay 22, 1963, upon stipulation of the parties, an 
order was filed dism issing the United States as a party 
defendant.

A  jurisd ictional question must first be resolved: Does 
this court have jurisd iction to review the action of the 
Chief of Police, the Safety Committee, and the C ity  Com­
m ission of Grand Rapids on the question of transfer and 
revocation of the license at B arnett’s Bar?

The M ichigan Constitution provides in A rticle  X V I, 
§11 :

“ The Legislature may by law establish a liquor con­
tro l commission, who, subject to statutory lim ita­
tions, shall exercise complete control of the alcoholic 
beverage traffic w ithin this state, including the retail 
sales thereof: . . . ”

In  accordance with this power, the legislature passed 
the M ichigan Liquor Control Act, Public A ct 8, 1933 (E x . 
Sess.), M SA  18.791 to 18.1029, and subsequent amendments. 
The state agency given the power to regulate and control

4 7c
Appendix B —  Opinion of the District Court



the liquor business was the Liquor Control Commission. 
M'S A  18.972(6).

M ichigan also has an Adm inistrative Code, M SA  3.560 
(7)-3.560(18), and an Adm inistrative Procedure A ct M SA  
3.560(21.1)-3.560(21.10). The latter describes the rights of 
the public in  relation to procedure before state adm inis­
trative agencies. The Adm inistrative Procedure A ct re­
quires each agency to adopt rules governing form al and 
inform al procedures relating to contested cases. Op. A tty. 
Gen., Feb. 27, 1953, No. 1595.

The M ichigan Liquor Control A ct delegates certain func­
tions concerning the regulation of liquor to local units 
of government. The provision under which the Safety 
Committee of the C ity  Commission of Grand Rapids neces­
sarily  acted in  this case is M SA  18.988, which provides in 
p a rt:

“ . . . Licenses may be transferred with the con­
sent of the commission (Liquor Control Commission)
. . . A ll applications for licenses to sell beer and wine 
or sp irits for consumption on the premises, except 
in counties of 1,000,000 population or over, shall be 
approved by the local legislative body in which said 
applicant’s place of business is located before being 
granted a license by the commission . . . ”

48c
Appendix B —  Opinion of the District Court

The local legislative body, the C ity  Commission, is an 
arm of the state’s adm inistrative agency whenever it func­
tions under this provision. Since an application for trans­
fer is w ithin the language of the above statute, it must be 
approved by the local body before the Liq uo r Control Com­
m ission can grant the license. The language is m andatory; 
a license cannot be granted without local approval.

D isapproval is equivalent to denial of a transfer be­
cause the local agency’s approval is a condition precedent 
to a grant of transfer by the L C C .

The Legislature formulated rules for review of actions 
of the Liquor Commission. See M SA  18.991. Th is is in



keeping with the direction of the Adm inistrative P ro ­
cedures Act, which states :

“ A n y person aggrieved by a final decision in a con­
tested case, whether such decision is affirmative or 
negative in form, is entitled to jud icia l review there­
of under this act; but nothing in this section shall be 
deemed to prevent resort to other means of review, 
redress, relief or tria l de novo, provided by law . . .”  
M SA  3.560(21.8).

A  contested case is defined as follow s:
“  ‘ Contested case’ means a proceeding before an 

agency in  which the legal rights, duties or privileges 
of a specific party or specific parties are required by 
law or constitutional right to be determined after an 
opportunity for an agency hearing.”  M SA  3.560(21.1) 
(3).

The parent adm inistrative agency is by these laws re­
quired to proceed in  a particular way, out of recognition 
for basic concepts of procedural fa ir p lay and due process. 
It  is only reasonable to conclude that an agency subordi­
nate to the parent agency, whose action controls in  a de­
nial, must be guided by sim ilar concepts of fa ir play and 
due process.

E igh ts of persons appearing before a local governing 
body must be properly safeguarded and the traditional 
check is jud icia l review. Constitutionally protected per­
sonal rights must be secured to persons appearing before 
local adm inistrative agencies.

The statute declares the local adm inistrative agency 
“ shall approve”  before the Commission can grant a license. 
“ A p pro val”  connotes discretion. Thus, the local agency 
may approve or disapprove according to the facts of the 
situation. T h is discretionary action may be challenged by 
jud icia l review as arb itrary, unreasonable, or unconsti­
tutional.

4 9e
Appendix B —- Opinion of the District Court



The proposition is stated in 2 Am . Ju r. 2d, Sec. 650, as 
fo llow s:

“ A R B IT R A R Y , C A P R IC IO U S , O R U N R E A S O N ­
A B L E  A C T IO N : A B U S E  O P D IS C R E T IO N .
Since such action is not in  accordance with law, is in  
excess of authority, and presents a jud icia l question 
or a question of law for the court, a court on review of 
action of an adm inistrative agency, under express 
provisions of some statutes but even in the absence 
of statutes providing fo r jud icia l review or relief and 
in the face of statutes purporting to preclude judicial 
review, this being a matter of constitutional right in 
some instances, w ill pass on, and in a proper case 
grant relief from  or set aside, agency action, findings, 
and conclusions which are arb itrary, capricious, or 
both or either, unreasonable, or arb itrary or unrea­
sonable, or an abuse of power of discretion . . .

“ 'Sometimes the courts use other terms to ex­
press the type of illega l action which is subject to re­
view or reversal, namely, action which is  unjust, dis­
crim inatory, or oppressive.”  2 Am. Ju r. 2d, §650.

The M ichigan Supreme Court recognized this funda­
mental principle early in  a well written opinion by Justice 
Cam pbell:

“ It  is undoubtedly true that no court can review 
the law ful discretion of any body that is not a court 
. . . But it is equally true that private rights cannot be 
subject by legislative, executive, or any other au­
thority, to the unregulated discretion of any one. Le ­
gal rights can only be divested by such measures as 
are classed under the law of the land as due process 
of law . . . But in a constitutional government, the 
action of all persons, official or private, which is in 
violation of constitutional rights, is simply null and 
void, and usually needs no reversal.” Dullam  v. W ill- 
son, 19 Mich. 112, 120 (1884). (Em phasis supplied.)

50c
Appendix B —  Opinion of the District Court



Th is is the essence of written lim itations of constitu­
tional government.

Justice Campbell declared the same proposition in Peo­
ple ex rel Robison v. Miner, 37 Mich. 21 (1888).

In  Sherlock v. Stuart, 55 N.W . 845 (1893), p laintiff 
sought mandamus against defendant M ayor of Grand Rap­
ids. A  city ordinance had given discretion to the C ity  
Common Council and the Mayor in determining the proper 
locations for licensed liquor establishments. The court 
found the ordinance clearly authorized under existing law 
and stated:

“ When the mayor and council have in good faith 
exercised the discretion conferred upon them by the 
law, courts cannot review it. There is nothing in  this 
case showing any abuse of discretion, or the arb itrary 
exercise of power.”  A t page 847.

G licker v. M ichigan Liquor Control Commission, 160 P . 
2d 96 (C C A  6) is the leading and controlling case in this 
C ircu it. In  that case the d istrict court dismissed plain­
t iff’s complaint on defendant’s motion. The C ircu it Court 
of Appeals reversed.

P la in tiff in  G licker was the owner of a Class C license. 
The license was revoked for what p laintiff claimed were 
arb itrary and discrim inatory reasons. P la in tiff asked for 
an order directing the defendant L C C  to renew her license.

The C ircu it Court of Appeals first agreed with the 
d istrict court that the p laintiff had no cause of action un­
der that portion of the Fourteenth Amendment which pro­
hibits a state from  enforcing any law which abridges the 
privileges or immunities of citizens of the United States. 
Judge M iller, speaking for the court, said:

“ The right to a license to sell intoxicating liquor 
is not a natural or fundamental right, nor a privilege 
incident to national citizenship. The regulation of 
the liquor traffic in  any state is exclusively under the 
police power of that particular state. (Om itting cases 
cited.) . . Accordingly, appellant’s right to a license to 
sell liquor in M ichigan is not protected by the p riv i­

51c
Appendix B —  Opinion of the District Court



leges and immunities clause of the Fourteenth Amend­
ment.”  A t page 98.

Judge M iller, however, clearly declared that the appel­
lant had a proper complaint under the equal protection 
clause of the Fourteenth Amendment. He said:

“ The equal protection clause of the Fourteenth 
Amendment is a right in itself, separate and inde­
pendent from the rights protected by the privileges and 
immunities clause of the Fourteenth Amendment . . .

“ In  H artford  Steam B oiler Inspection and In su r­
ance Company v. H arrison, 301 H .S . 459, 57 S.Ct. 
838, 839, 81 L . Ed . 1223, the Court pointed out that 
while the Fourteenth Amendment allows reasonable 
classification of persons, yet it  forbids unreasonable 
or arbitrary classification or treatment, and wrote . . . 
‘ it may be said generally that the equal protection 
clause means that the rights of a ll persons must rest 
upon the same rule under sim ilar circumstances . . . 
and that it  applies to the exercise of a ll the powers 
of the state which can affect the individual or his 
property, including the power of taxation. ’ In  Sunday 
Lake Iro n  Company v. Township of W akefield, 247 
U .S. 350, 38 S. Ct. 495, 62 L . Ed . 1154, the Court said 
. . . ‘The purpose of the equal protection clause of the 
Fourteenth Amendment is to secure every person with­
in the State’s jurisdiction against intentional and ar­
bitrary discrimination (U .S. 'Supreme Court’s em­
phasis), whether occasioned by express terms of a 
statute or by its improper execution through duly con­
stituted agents.’ . . . Numerous other cases fu lly  sus­
tain the rule that the constitutional rights provided 
by the equal protection clause of the Fourteenth 
Amendment to a person within the state are violated 
by intentional discriminatory action against him on 
the part of the State, acting either through its legis­
lative body or by the administrative action of its of­
ficials, and that remedial action is  provided therefor

52c
Appendix B •—  Opinion of the District Court



by Section 1979, Revised Statutes.”  Om itting cases 
cited. A t page 99-100. (Em phasis supplied.)

The court then went on to recognize what the duties of 
the court were in  regard to the action of the state agency.

“ W hile the Federal Government does not have 
the right to regulate such matters, which are exclusive­
ly  under the control and regulation of the state, yet it 
does have the right, by virtue of the Fourteenth 
Amendment, to prevent such regulation from  being 
arb itrary or discrim inatory . . . The rule is equally as 
applicable where the business or occupation being 
regulated is not a franchise or property right, but is 
merely a privilege granted or withheld by the state at 
its pleasure.” (Em phasis supplied.) A t page 100.

Recognizing that the pleadings in the case admitted 
arb itrary and discrim inatory action, the C ircu it Court 
held that the complaint was sufficient and the district 
court should not have granted the motion to dismiss.

P la in tiff Lew is in  this case has alleged in his complaint 
that the C ity  Commission and the Superintendent of Police 
of Grand Rapids intentionally discrim inated against plain­
tiff in  disapproving the transfer of the license to plaintiff.

The first issue which the court must decide on review is 
whether the Safety Committee of the C ity  Commission 
and Superintendent Johnson acted in an arbitrary, dis­
crim inatory or unreasonable manner in disapproving this 
transfer.

From  the facts and evidence produced at the tria l of 
this case, the court is compelled to find that the Safety 
Committee and Chief Johnson intentionally discrim inated 
against p la in iff Lew is.

Chief Johnson and Grand Rapids Police officers under 
his direction deliberately delayed processing the required 
L C C  form  1800 and refused to state reasons for their inten­
tions to recommend denial of the transfer. They acted 
with deliberate delay instead of due diligence. Th is delay 
is discrim ination in  disguise.

53c
Appendix B —  Opinion of the District Court



5 4c
Appendix B —  Opinion of the District Court

In  review of his testimony tinder the facts of this case, 
this court has found the controlling motives of Chief 
Johnson’s and Commissioner Lam berts’ actions were hate 
and malice.

It  is clear that local adm inistrative agencies under the 
M ichigan Liquor Control A ct heavily rely upon the recom­
mendations of staff police officers. In  the present instance, 
the Safety Committee and the C ity  Commission relied to 
a controlling degree upon the alleged facts received from 
Chief Johnson and Commissioner Lam berts, as well as up­
on their recommendations.

In  the A p ril 17 Safety Committee meeting, Commis­
sioner Lam berts was joined by Commissioner Sevensma 
in the intentional delay advocated by Chief Johnson. The 
intentions of Commissioners Lamberts, Sevensma, Jamo, 
and Chief J ohnson came into clear evidential focus from 
April of 1 9 6 2  through and including the actual tria l of this 
case.

In  A p ril the application for transfer was in a posture 
for completion. The Lew is-Patricia  Ettress B e ll difficulties 
were resolved. I t  is im portant to note that Mr. Lew is 
became a prospective transferee purchaser only after at­
tempts to sell the license to others failed. Unpaid taxes 
could be resolved through escrow, and gam bling charges 
had been dismissed . The L C C  investigation was com­
pleted, and approval was indicated.

But for the unconstitutional and capricious conduct of 
certain city commissioners and Chief Johnson, this B a r­
nett’s B a r license would have been transferred within a 
reasonable time after A p ril 17, 1962.

Thereafter, Chief Johnson instigated a new L C C  investi­
gation solely for the purpose of delay. Th is and a ll of 
the preceding activities were discrim inatory. They were 
intended to deny the transfer of the license to Mr. Lew is 
and D r. En g lish  without declaring legitim ate reasons, or 
any reasons at all. Th is would be to the detriment of not 
only Mr. Lew is and D r. En glish , but also to the detriment 
of P atricia  Ettress Bell.

Commissioner Lam berts claimed Mr. Lew is was dis­
respectful toward police officers in  court. The testimony



of the prosecutor, M r. R ichard Loughrin, is to the contrary. 
Commissioner Lam berts never saw Mr. Lew is try  a case 
until this transfer issue came before the 'Safety Commit­
tee. Then she attended court tria ls just to watch Mr. Lew is 
in  action as an attorney.

She disliked his insistence upon due process, open hear­
ings, confrontation of witnesses, constitutional rights, dec­
larations of reasons for delay by Chief Johnson and the 
Police Department, and reasons for denial of the transfer 
by the Safety Committee and the C ity  Commission. H er 
dislike for Mr. Lew is caused her to pursue every channel 
of authority conceivable to her to defeat transfer and to 
close B arnett’s B ar. When she phoned the LC O  she m is­
represented certain im portant facts when she told them 
there was going to be a grand ju ry  investigation of this 
transaction.

She went so far as to seek an investigation by a school 
official of Mr. Le w is’ wife, a school teacher, when Mrs. 
Lam berts heard that Mrs. Lew is had claimed in  the presence 
of her students that this transfer had been disapproved 
for discrim inatory reasons.

There are only three liquor establishments in the C ity  
of Grand Rapids owned by negroes: the Lam ar hotel license, 
a club license; the Crispus Attueks Post of the Am erican 
Legion, available fo r service to members only; and B a r­
nett’s B ar.

A ll three of these liquor establishments are located in 
Commissioner Lam berts ’ ward. She wanted Barnett’s B ar 
closed. She intended to eliminate the only Class C liquor 
license owned by a negro in the C ity  of Grand Rapids, a city 
of over 200,000 population.

She sent a telegram to Attorney General Fran k K e lley 
when it  appeared that the Referee in Bankruptcy intended 
to enjoin city officials from  communicating to the L C C  their 
attempted revocation action. She used this channel as a 
means to get the inform ation to the L C C , just as she used 
the channel of the legal adviser to Governor to force in­
directly the L C C  to do the bidding of the C ity  Commission 
of Grand Rapids, which was under her dominating control 
insofar as this transfer was concerned.

55c
Appendix B —  Opinion of the District Court



Commissioner Lam berts had obtained a position of power 
and substantial influence in  the C ity  Commission. H er 
rise to Chairm an of the Safety Committee and President of 
the C ity  Commission, and the evident voting bloc which 
she had acquired in  the C ity  Commission, gave her sub­
stantial power, which she wielded arb itrarily , capriciously, 
and unreasonably in  this instant case.

The recommendations of Chief Johnson and Commis­
sioner Lam berts to the Safety Committee and to the C ity  
Commission withheld facts and presented distorted facts 
which were corrupted by malice and hatred. The facts 
presented in this manner thus permeated the entire action 
of the Safety Committee and the C ity  Commission in each 
of its votes on the questions presented by the problems of 
the application for transfer involved in  this case.

Commissioner Barto neglected to pursue his previously 
expressed dissatisfaction with the Safety Committee’s and 
the Com m issioners’ denial of due process, as well as with 
their disapproval of the transfer subject to escrowing the 
taxes. He also neglected to pursue his previously expressed 
dissatisfaction with the change made in  the Form  1800 from 
“ Y e s ”  to “ N o,”  and with the failure of the Police Depart­
ment to state reasons for this charge.

Commissioner Sypniew ski went along indifferently with 
the other Commissioners who were follow ing the leadership 
of Commissioner Lam berts and of Chief Johnson. The 
tide of resentment engendered against B arnett’s B ar and 
Alphonse Lew is by Chief Johnson and Commissioners Lam ­
berts, Jam o, Sevensma and Vanden Berg was of sufficient 
momentum to sweep Commissioners Barto and Sypniew ski 
behind the leadership of Commissioner Lam berts and Chief 
Johnson.

From  the begining to the end of the proceedings before 
the Safety Committee and the C ity  Commission, a ll of 
the Commissioners, except the Mayor, participated in  a 
conspiracy of silence.

Commissioner Vanden B erg testified that this silence was 
to insure Mr. Lew is freedom from  embarrassment. Such 
testimony can be accorded little  weight in light of p lain­
tiff Le w is’ insistence not on secrecy but on open hearings;

5 6c
Appendix B —  Opinion of the District Court



not on silence but on testimony of live witnesses; not on 
hiding facts involved in this case but in revealing facts. 
He was w illin g to submit him self to cross-examination, but 
he also wished to cross-examine those who were uttering 
whispered innuendoes and calumny behind his back.

He called for due process and constitutional rights. Chief 
Johnson and Commissioners Lam berts, Jam o, Sevensma, 
and Yanden B erg denied due process and constitutional 
rights.

H isto rica lly, secrecy frequently has been used to intim i­
date individuals and to destroy careers and reputations in 
c iv il society. In  the present case secrecy and silence as 
to the real reasons fo r denying the transfer of the license 
created distorted images in  the public means of mass 
communication. Mr. Lew is, Barnett’s B ar, and a ll who 
were associated with it, were made to appear to represent 
a ll that was undesirable in  taverns and licensed liquor es­
tablishments, and especially, with varying inflections of 
overtone, a negro bar.

Th is is not secrecy of freedom but secrecy of tyranny. 
It  is a secrecy which destroys rather than protects human 
rights.

Th is court finds as a matter of fact that the Safety Com­
mittee, the C ity  Commission, and the Chief of Police 
studiously avoided stating reasons in public session in  the 
presence of Mr. Lew is, D r. En glish , or P atric ia  Ettress 
B e ll for the unreasonable and unwarranted delay in  the 
processing of form  1800 and for failure to approve trans­
fer of the license.

Th is failure casts a shadow of doubt over the legitim acy 
and the veracity of their later declarad reasons, and creates 
a presumption against the integrity of the state post factum 
reasons.

To further this secrecy, they sought out the advise of 
the C ity  Attorney, thus conspiring together ‘ Linder the 
color of law ”  to deny both to p laintiff Lew is and to P atricia  
Ettress B e ll due process and equal protection of the law. 
In  this regard they violated the Federal C iv il E igh ts Act, 
T itle  42 U S C  §§ 1981, 1982 and 1983.

57c
Appendix B — • Opinion of the District Court



It  is interesting to note that the Commissioners picked 
and chose the advice of the C ity  Attorney. They followed 
him on his advice in regard to secrecy, but they disregarded 
his advice on the question of the legality of a non-resident 
owner of a tavern license, and on the question of the 
legality of the bar being open from twelve o’clock to two 
o ’clock on Monday mornings.

It  is important to bear in mind that insofar as the negro 
population of the C ity  of Grand Eap ids is concerned, it 
comprises about 7% of the population. In  Commissioners 
Lam berts’ and Jam o ’s political calculation this was a 
negligible force which could be disregarded. Their ac­
tivities in  the case here at issue were before Birm ingham .

The Court’s discussion of the gam bling charges need not 
be repeated here. The action of the city police in this re­
gard, however, constituted a discrim inatory enforcement 
of the gam bling laws against a licensed liquor establish­
ment.

Commissioner Sypniew ski testified that he, as a citizen, 
had observed violations of the gam bling laws in other l i ­
censed premises in the C ity  of Grand Rapids. Yet, the only 
instance in which an attempted revocation or denial of a 
transfer of a license v ia  alleged gam bling-law violations in 
at least sixteen years is Barnett’s B ar. Chief Johnson 
could testify to no other raid  on a licensed establishment in 
his years of experience on the police force.

The net effect is that the action of Chief Johnson, of 
the Safety Committee, and of the C ity  Commission in  re­
lation to this transaction has been arbitrary, capricious, 
unreasonable, and unconstitutional. I t  was discrim ina­
tory both racia lly  and personally. There existed in fact a 
conspiracy on the part of Chief Johnson and Commissioners 
Lam berts, Sevensma, and Jam o to defeat and deny the 
transfer, and ultim ately to revoke the only negro-owned 
Class C liquor license in  a city of over 200,000 population.

The instant case is  one of invidious discrim ination. See 
Skinner v. Oklahoma, 316 U .S. 535-547, 86 L .ld . 1655, at 
page 1660 ; Braunfeld v. Brown, 366 U .S. 599, 6 L .E d . 2d 
563, 81 S.Ct. 1144; Baker v. Carr, 369 U .S. 186, 7 L .E d . 
2d 663, 8 S.Ct. 691; Sanders v. Gray, 203 F.Supp. 158,

58c
Appendix B — • Opinion of the District Court



reversed ......... U .S ............ , 9 L .E d . 2d 821 (1963); and
Sherbert v. Yener, .........  IJ .S ............, 10 L .E d . 2d 965.

Since the only reason given at a public hearing in the 
presence of Mr. Lew is, D r. En glish , or P atric ia  Ettress 
B e ll at any time np to and including the date of denial 
of the transfer by the C ity  Commission on Ju ly  31, was 
failure to pay taxes as evidenced by Chief Johnson’s refer­
ence to the Po re ll letter and recommendations of the police 
department, the court ruled as inadm issible in the principal 
case the post factum reasons given by the Commissioners in 
their testimony.

Since, however, these reasons were made a part of a 
segregated record and since they may be considered only 
insofar as they relate to the segregated record, the court 
has commented upon these facts merely to disclose the 
transparency of these reasons and to add substance to 
the finding of the court that Chief Johnson, the Safety 
Committee, and the C ity  Commission acted arb itrarily. 
These reasons, even if  admitted as evidence, are a facade for 
the real reasons behind the action of the Safety Committee 
and the personal and racia l discrim ination of Chief John­
son.

It  is worthy of note that Barnett’s B ar and the transfer 
of the license to Alphonse Lew is became a cause celebre 
in the C ity  of Grand Rapids. Mass means of communica­
tion —  radio, T V  and newspapers —  covered the sessions 
of the Safety Committee. Stories appeared frequently in  
the news media so extensively —  and it  was the purpose of 
Chief Johnson and Commissioner Lam berts to cause this 
result —  that Barnett’s B ar became synonymous with a ll 
that is  undesirable in liquor establishments, and especially 
in  a negro-owned-operated liquor establishment. Barnett’s 
B a r and Alphonse Lew is as a consequence are unpopular in  
this community.

It  is not unreasonable to conclude that the im pressions 
thus created in the C ity  of Grand Rapids and its environs 
of B arnett’s B ar, of Alphonse Lew is, and of P atricia  
Ettress B ell, are such that if  a popular vote were held on 
the question, “ Sh all Barnett’s B ar license be revoked?” 
the vote would be overwhelmingly in the affirmative.

59c
Appendix B — Opinion of the District Court



Unbridled discretion in public authorities lends itse lf 
to selective enforcement against unpopular causes.

The court cannot close its eyes to the fact that m ilitant 
demands of the negroes have engendered unpopularity and 
resistance by certain officials. Alphonse Lew is was m ilitant 
in  his insistence upon constitutional rights. The m ilitancy 
was vigorously resented. In  such circumstances, d iscrim i­
natory action may easily become the fashion of operation.

Unbridled adm inistrative acts may well freeze out the 
existence of a ll activities on behalf of the social and c iv il
rights of negroes. N A A C P  v. Button, .........  U .S ............ ,
9 L .E d . 2d 405.

The C ity  Commission claims that its action on the applica­
tions for transfer of the liquor license is a privileged exer­
cise of police power. It  is their contention that they may 
deny such applications without stating reasons for such 
denial.

The police power of the state or any of its agencies is 
not a sanctuary from  which constitutionally protected rights 
of citizens may be violated with im punity.

The police power of the state is not a license to ignore 
the constitutionally protected rights of equal protection 
of the law, of equal enforcement of the law, and of due 
process of law.

W hat Judge M iller said (at page 100) in  the G licker case 
m ay be paraphrased: It  is well settled that under the de­
cisions of the United States Supreme Court a state police 
regulation is, like any other law, subject to the equal pro­
tection clause of the Fourteenth Amendment.

The C ity  may not under the guise of protection of the 
health and welfare of the city, ignore these fundamental, 
constitutionally protected rights.

W hile it  would be sufficient for this court to rest its 
opinion on the finding of denial of equal protection of the 
law, and thus, a violation of a constitutionally protected 
right of the Fourteenth Amendment, the court is compelled 
to further hold that the method of disapproval of the trans­
fer was a denial of due process.

The logic of equal protection of the law in  the instant 
case compels the requirement of fa ir procedural practice.

60c
Appendix B —  Opinion of the District Court



The very logic of the constitutional doctrine of equal 
protection under the law in  cases of this kind compels 
conclusions that the aggrieved party in  a contested case 
must be guaranteed procedural due process of law. Th is 
is an ancient doctrine, older than the w ritings of H enry 
Bracton, Lo rd  Mansfield, or Blackstone.

It  is first difficult to find the denial of one right here 
without the denial of the other because of the circumstances. 
In  Trau x v. Corrigan, 257 U .S. 312, 66 L .E d . 254 (1921), 
p laintiff claimed that a certain statute denied him equal 
protection of the laws and violated due process. Chief 
Justice T a ft discussed the equal protection clause and 
said:

“ The clause is associated in  the Amendment with 
the due process clause, and it  is customary to con­
sider them together. It  may be that they overlap, that 
a violation of one m ay involve at times the violation 
of the other, but the spheres of the protection they offer 
are not conterminous.”  A t pages 331, 332.

The course of decisional law and the constitutional h is­
tory of the Fourteenth Amendment demonstrate the verity 
of this proposition.

We recognize that the M ichigan Supreme Court and the 
courts of the other states have held consistently that the 
due process clause of the United States Constitution does 
not apply to matters concerning liquor licenses.

Various reasons for this position have been given. 
Licensees are said to have no vested interest in  their 
license. People v. Schafran, 134 N.W . 29 (1912); Case v. 
Liquor Control Commission, 314 Mich. 632, 23 N.W . 2d 
109; F itzp atric  v. Liquor Control Commission, 316 Mich. 
83, 25 N.W . 2d 118, or the court holds that a license is 
merely a ‘ ‘ privilege ’ ’ and not property. Johnson v. Liquor 
Control Commission, 266 Mich. 682, 254 N.W . 557. And 
the M ichigan courts have flatly stated that the exercise of 
the state’s power in regard to liquor licenses is not af­
fected by the Fourteenth Amendment. People v. Wheeler,

61c
Appendix B —  Opinion of the District Court



185 Mich. 164, 151 N.W . 710; Gamble v. Liquor Control 
Commission, 323 Mich. 576, 36 N.W . 2d 297.

The recent trend in the area of due process convinces 
this court that technical classification of rights realting to 
licenses is not an answer to the broad protection intended 
by the drafters of the Constitution. Some courts have 
squarely met this problem by saying:

“  ‘ State law ,’ the court explained (referring to 
Morgan v. Commissioner, 309 U .S. 78, 84 L .E d . 585)
‘ creates legal interests and rights. The federal revenue 
acts designate what interests or rights, so created, 
shall be taxed. Our duty is to ascertain the meaning 
of the words used to specify the thing taxed. I f  it  is  
found in a given case that an interest or right created 
by local law as the object intended to be taxed, the 
federal law must prevail no matter what name is 
given to the interest or right by state law ’.”  F id e lity  
and Deposit Company of M aryland v. New Yo rk  C ity  
Housing Authority, 241 F . 2d 142 (C C A  2, 1957).

See also In  re H alprin , 280 F . 2d 407 (C C A  3, 1960).
The Federal Constitution, as interpreted by the United 

States Supreme Court, designates the rights which shall 
be protected. It  is the duty of this court to determine 
whether the right here involved was intended to be pro­
tected.

'The United States Supreme Court has had a recent op­
portunity to commit on this issue. Sherbert v. Vener, supra. 
P la in tiff in  that case filed a claim  for unemployment bene­
fits since she could not find employment due to her re­
fusal to work on Saturdays according to her religious 
convictions. The unemployment statute provided that the 
claimant must be available fo r work and must accept work 
offered except fo r good cause. The employment commis­
sion found that p la in tiff’s restriction upon her availab ility 
for Saturday work brought her w ithin the disqualifying 
provision for fa ilin g  to accept, without good cause, avail­
able work.

62c
Appendix B —  Opinion of the District Court



63c
Appendix B — Opinion of the District Court

P la in tiff claimed that this disqualifying provision worked 
to deny her freedom to exercise her religion secured by 
the F irs t  and Fourteenth Amendments. In  regard to the 
defense of this claim, Justice Brennan, w riting for the ma­
jo rity, stated:

“ N or may the South Carolina court’s construction 
of the statute be saved from constitutional infirm ity 
on the ground that unemployment compensation bene­
fits are not appellant’s ‘ rig h t’ but merely a ‘p rivilege’. 
It is too late in the day to doubt that the liberties of 
religion and expression may be infringed by the de­
nial of (sic) or placing of conditions upon a benefit 
or privilege.
*  #  #

“ Fo r example, in  Flem m ing v. Nestor, 363 U .S. 
603, 611, 4 L . Ed . 2d 1435, 1444, 80 S. Ct. 1367, the 
Court recognized with respect to Federal Social Se­
curity benefits that ‘ (t)he interest of a covered em­
ployee under the Act is of sufficient substance to fall 
within the protection from arbitrary governmental ac­
tion afforded by the Due Process Clause.” (Em phasis 
supplied.) (A t page 971.)

Th is case involves a transfer proceeding, concerning 
the license held by the transferor —  worth at least $18,000 
— and a transferee desirous of pursuing this law ful oc­
cupation, and w illin g to pay for the license. Certain ly we 
are speaking in  matters of substantial substance. On the 
one hand we are speaking about a license, called a privilege 
only; but it  has an acknowledged dollar value of $18,000. 
On the other hand we are speaking about the liberty and 
freedom of a citizen to pursue a law ful, though regulated, 
occupation.

The sale by one party of the use of this license can un­
der certain circumstances be imminent. In  this case the 
transferor was in financial difficulty. The settlement ob­
tained in the Kent County C ircu it Court case had in mind 
avoidance of bankruptcy by the transferor.



The purchase by the other party also carried grave 
im plications. P art of the purchase price involved money 
owed by the transferor to the transferee —  and the only 
asset of any value of the transferor was the liquor license. 
To destroy that license was in effect to destroy the debt.

To deny the transfer without due process, on the ground 
that a privilege only, and not property is in  issue, is to 
close the eyes of justice to realities. Other courts have 
overcome this court-made hurdle.

The D istrict Court in  Midwest Beverage Co., Inc., v. 
Gates, 61 F . Supp. 688 (N.W . In d .) (1945), went so far as 
to call a liquor license property. Even when faced with 
a state statute to the effect that a license was not a property 
right, the court stated:

“While a permit or license as such may not he 
property the use and enjoyment of it may give to its 
possessor something that is valuable and which has 
all the qualities of property. * * * On the other hand 
the use of the permit, once granted, has the elements 
of property irrespective of what the Legislature may 
declare about the permit itself, and except for the om­
nipresent and unlim ited power of the state to re­
voke or m odify the terms of the permit in  the interest 
of the public welfare, the use of such permit, if  not 
the permit itself, is property within the meaning of 
the due process clause of the Federal Constitution.” 
A t page 691. (Em phasis supplied.)

The New Jersey Supreme Court in  a very recent case, 
The Boss Co., Inc. v. A tlantic C ity  Board of Commission­
ers, 32 LW  2052, ...... A . 2d ___ , decided Ju ly  1, 1963,
held that fo r federal tax liens, a liquor license was “ prop­
erty” . The court is quoted as saying:

“ Th is license has value —  not m erely the personal 
value of the licensee that inheres in the right to en­
gage in  the business of selling intoxicating liquors, 
but also the monetary value that arises from the power 
possessed by the licensee to substitute, with the mu­
nicipal consent, some other person in his place as li­

64c
Appendix B — Opinion of the District Court



censee. * * *Thus, the liquor license is a legal inter­
est in the nature of an economic asset, created and 
protected by statute, and because it  has monetary 
value and is transferable, either by consent of the l i ­
censee or by operation of law, * * * it possesses the 
qualities of property.” 32 LW  2052 (Em phasis sup­
plied. )

So long as it is legal to engage in licensed liquor traffic, 
and, so long as such licenses have a substantial monetary 
value, their transfer cannot be denied without due process 
of law.

It  must be remembered also that the due process clause 
demands that no state shall deprive any person of his 
“ lib erty”  without due process. The United States Su­
preme Court, as quoted by the M ichigan Supreme Court, 
said long ago th at:

“  ‘Lib erty  is something more than mere freedom 
from  physical restraint. It means a freedom to go 
where one may choose, and to act in such manner, 
not inconsistent with the equal rights of others, as 
his judgment may dictate for the promotion of his 
happiness; that is, to pursue such callings and avoca­
tions as may be most suitable to develop his capaci­
ties, and to give them their highest enjoyment’ 
People ex rel Kuhn  v. Common Council, 70 Mich. 534, 
38 N.W . 470 (1880), quoting from  Justices Fie ld  and 
Strong in Munn v. Illin o is, 94 U .S. 113, 142, 24 L . Ed . 
77. (Em phasis supplied.)

Lib erty  includes the right to pursue a law ful occupation. 
To prevent this without due process is to violate the Four­
teenth Amendment to the United States Constitution.

The right to liberty inheres in  the very nature of m an; 
it is superior to the right to property, which is a derivative 
right.

A s recently as M ay 13, 1963, the Supreme Court has 
ruled on this im portant due process issue. In  W illner v. 
Committee on Character and F itn e ss ,.......U .S ....... , 10 L .

65c
Appendix B —  Opinion of the District Court



Ed . 2d 224, p laintiff was denied admission to the New 
Y o rk  B ar. A fte r a complex procedural process, and a 
ruling by the highest New Y o rk  court, the Supreme Court 
granted certiorari to determine whether or not appellant 
had been denied due process of law.

The Court of Appeals of New Y o rk  had ruled that ap­
pellant was not denied due process.

The Supreme Court stated in its opinion through Justice 
D ouglas:

“ The issue presented is justiciable. ‘A  claim  of 
present right to admission to the bar of a state and 
a denial of that right is a controversy.’ Re Summers, 
325 U .S. 561, 568. * * * Moreover, the requirements 
of procedural due process must be met before a state 
can exclude a person from  practicing law. ‘A  state 
cannot exclude a person from  the practice of law or 
from any other occupation in a manner or for rea­
sons that contravene the Due Process or Equal pro­
tection Clauses of the Fourteenth Amendment.’ Sch- 
ware v. Board of B ar Exam iners, 353 U .S. 232, 238- 
239. * * * A s the Court said in  E x  parte Garland, 4 
W all. 333, 379, * * * the right is not ‘ a matter of grace 
and favo r’.

“ We are not here concerned with grounds which ju s­
tify  denial of a license to practice law, but only with 
what procedural due process requires if  the license is 
to be withheld. Th is is the problem which Chief Ju s ­
tice T a ft adverted to in Goldsmith v. Board of T a x 
Appeals, 270 U.'S. 117, * * * involving an application 
of a certified public accountant to practice before the 
Board of T a x Appeals. Chief Justice T a ft w riting for 
the Court said:

‘We think that the petitioner having shown by 
his application that, being a citizen of the United 
States and a certified public accountant under 
the laws of a State, he was w ithin the class of 
those entitled to be admitted to practice under 
the B o ard ’s rules, he should not have been re­

66c
Appendix B  —  Opinion of the District Court



jected upon charges of his unfitness without g iv ­
ing him an opportunity by notice for hearing and 
answer. The rules adopted by the Board provide 
that “ the Board may in its discretion deny ad­
m ission, suspend or disbar any person.”  But this 
must be construed to mean the exercise of a d is­
cretion to be exercised after fa ir  investigation, 
with such a notice, hearing and opportunity to 
answer for the applicant as would constitute due 
process.’ ”  Id  at p. 123, at page 229. (Em phasis 
supplied.)

It  was claimed by the defendant that the petitioner was 
rejected by the Board on the basis of his own statements 
to the Committee. The Supreme Court remarked:

“ It  does not appear from  the record that either the 
Committee or the Appellate D ivision, at any stage of 
these proceedings, ever apprised petitioner of its 
reasons for fa ilin g  to be convinced of his good char­
acter. Petitioner was clearly entitled to notice of and 
a hearing on the grounds for his rejection either be­
fore the Committee or before the Appellate D ivision. 
* * * There seems no question but that petitioner was 
apprised of the matters the Committee was consider­
ing.

‘B ut a “ fu ll hearing”  —  a fa ir and open hear­
ing —  requires more than that * * * Those who 
are brought into contest with * * * Government 
in a quasi-judicial proceeding aimed at the con­
trol of their activities are entitled to be fa irly  
advised of what the Government proposes and 
to be heard upon its proposals before it issues 
its final command. ’ Morgan v. United States, 304 
U .S. 1, 18-19. * * *”  A t page 230.

Most C ity  Commissioners in this case based their ac­
tion on hearsay complaints against Mr. Lew is. Due process 
required that Mr. Le w is’ right of confrontation be pro­
tected. Denial of the right of confrontation violated due

67c
Appendix B —  Opinion of the District Court



process as set forth in the Fourteenth Amendment. W ill­
ner, supra, page 230-231.

The Court concluded by hold ing:

“ * * * that petitioner was denied procedural due 
process when he was denied admission to the B ar by 
the Appellate D ivision  without a hearing on the 
charges filed against him before either the Committee 
or the Appellate D ivisio n .”  A t page 231.

Although Mr. Lew is insisted upon due process, con­
frontation and a declaration of reasons, Mr. Lew is was 
never informed of the specific reasons for the disapproval 
and denial of the transfer of the liquor license to him self 
and D r. English . They were never given an opportunity 
to form ally challenge the ex post factum purported rea­
sons. Fo r these reasons alone, Mr. Lew is was denied pro­
cedural due process.

Justice Goldberg, concurring in the W illner case, supra, 
stated at page 233:

“Moreover, at no point are we or the petitioner spe­
cifically' advised by any finding of the committee or of 
the state courts as to the precise basis of denial to 
him of either his original or renewed applications for 
admission or his requests for reconsideration there­
of.” (Em phasis supplied.)

Whenever an aggrieved person demands a hearing on 
the denial of an application for a transfer, he must be ac­
corded procedural due process. Dation v. Ford  Motor Co., 
314 Mich. 152, 22 N.W . 2d 252; Napuche v. Liquor Con­
trol Commission, 336 Mich. 398, 58 N.W . 118; Morgan v 
U .S., 298 U .S. 468, 80 L . Ed . 1288; W illner v. Committee 
on Character and Fitness, supra.

The action of the Safety Committee and the C ity  Com­
mission on Ju ly  31, 1962 denying the transfer of the l i ­
cense from P atricia  Ettress B e ll to Alphonse Lew is and 
D r. En g lish  is void.

The license continued to exist subject to the pending 
application for transfer to Mr. Lew is and D r. En glish . B y

68c
Appendix B —  Opinion of the District Court



reason of the unconstitutional action of the C ity  Commis­
sion and the Safety Committee, Mr. Lew is continues to 
operate the B a r to date under the M arch 20, 1962 agree­
ment and the power of attorney.

On September 10, 1962, P atricia  Ettress B ell, the l i ­
censee, filed a voluntary petition in bankruptcy.

On October 15, 1962, Mr. Lew is and D r. En g lish  were 
ordered to show cause why the Trustee in Bankruptcy, 
Mr. Nichols, should not be declared the owner of the li­
cense. A  hearing was held and on November 1, 1962, the 
Referee entered an order containing findings of fact and 
conclusions of law to the effect that the Trustee was the 
owner of the liquor license.

Mr. Lew is filed on November 7, 1962, a petition for re­
view of this order. The petition is presently before the 
court by agreement of the Trustee and Mr. Lew is, entered 
into at a conference with the Court on August 5, 1963.

The findings of the Referee necessarily included a find­
ing that the proposed transfer of the license to Mr. Lew is 
and D r. En g lish  had been denied by the disapproval of 
the local legislative body. The present finding by this court 
that the action of the body was void does not change the 
status of the license ownership.

A t a ll times before disapproval of the transfer and bank­
ruptcy, P atric ia  Ettress B e ll was the named licensee. True, 
Mr. Lew is had a substantial financial interest in  the B ar, 
and therefore, in  the license. Monies were expended by him 
in  procuring the license for M rs. B e ll; but at no time was 
Mr. Lew is the licensee, as is  evidenced by his attempt to 
secure a transfer of the license to him self and D r. English . 
No party can become a licensee without the consent of the 
L C C . The unconstitutional action of the C ity  Commission 
prevented the transfer from  being presented to the L C C  
for its consent. The sole owner was P atric ia  Ettress Bell, 
succeeded by the Trustee.

The findings of fact and conclusions of law of the Referee 
are affirmed with the exception of those findings relat­
ing to the action of the local adm inistrative agency.

However, since the action of the local adm inistrative 
agency was void, the license became the Trustee’s, still

69c
Appendix B  —  Opinion of the District Court



subject to the law fully pending transfer to Mr. Lew is and 
D r. English.

The M ichigan Liquor Control A ct states that approval 
by the local body must precede the grant by the L C C . It  
also states that “ transfers may be made with the consent 
of the L C C .”  M SA  18.988.

B y  virtue of this opinion, the transfer must now be 
treated as approved by both the local legislative body and 
by the Grand Rapids police. Before the application for 
transfer can be effective, the L C C , in  the exercise of its 
discretion, must first consent to the transfer.

Th is brings the court to the final matter of considera­
tion in this drawn-out transfer proceeding. A fter four 
hearings before the Safety Committee, the Committee on 
November 14, 1962, moved that the license be placed in 
escrow by November 20,1962 by the Trustee and Mr. Lew is 
or be revoked. The true legal interests of the parties at 
that time were as set out in this opinion —  the Trustee is 
the owner of the license subject to the transfer pending to 
Mr. Lew is and D r. En g lish  and the March 20, 1962 agree­
ment.

Both Mr. Lew is in  his complaint, and the Trustee in his 
position as cross-plaintiff, have alleged that the revocation 
hearings denied them due process of law. The M ichigan 
statute in regard to revocation provides:

“ * * * Upon request of the local legislative body in 
any county of less than 1,000,000 population, after due 
notice and proper hearing by the body, the commission 
shall revoke the license of any licensee granted a li­
cense to sell beer and wine or sp irits for consump­
tion on the prem ises.”  M SA  18.988, as amended by 
Public Acts 1957, No. 275, effective Sept. 27; and Pub­
lic  Acts of 1960, No. 151, effective M ay 23. (Em phasis 
supplied.)

Again, it can be seen that the action of the legislative 
body is a mandate to the Commission —  “ The commission 
shall revoke.”  “ Due notice and proper hearing”  is the 
statutory requirement of due process.

70c
Appendix B —  Opinion of the District Court



W ithout setting out again a ll the cases declaring what a 
“ proper hearing”  is w ithin the demands of due process, 
see the W illner case, supra. I t  is enough to state the fo l­
lowing proven facts concerning the revocation hearings.

The first revocation hearing was held October 16. There 
was no reporter present, and no record made, so the court 
is not informed whether or not procedural due process was 
accorded at this hearing. The absence of a record is a de­
n ial of due process.

U .S. v. Morgan, supra, 298 U .S. 480-481, in  discussing 
the meaning of the statutory provision “ fu ll hearing” 
points out:

“The requirement of a ‘full hearing’ has obvious 
reference to the tradition of judicial proceedings in 
which evidence is received and weighed by the trier of 
the facts. The ‘hearing’ is designed to afford the safe­
guard that the one who decides shall be bound in good 
conscience to consider the evidence, to be guided by 
that alone, and to reach his conclusion uninfluenced by 
extraneous considerations which in other fields might 
have play in determining purely executive action. * * * 
But there must be a hearing in a substantial sense.”

The M ichigan Supreme Court in  Dation v. Ford  Motor 
Co., supra, quoting with approval from  19 N.W . 2d 799, 
sa id :

71c
Appendix B —  Opinion of the District Court

“Due process requires that the evidence on which 
an agency, board, or commission bases its findings be 
ascertainable. This court must have the necessary 
data on which to determine the correctness thereof.”

A t the request of the Safety Committee, the C ity  A t­
torney sought to advise the Committee regarding the pro­
cedure to be followed in  the revocation hearings. He put 
his position in a letter dated October 11, 1962. W hile the 
letter does not state specifically that a record should be 
made, it sets out a procedure parallel to that followed in 
the courts —  presentation of evidence, cross-examination, 
and a decision based on facts and findings.



A t the second revocation hearing on October 24, no re­
porter was present, but a few notes were taken by the sec­
retary of the C ity  Attorney. Again, no record is a vio la­
tion of due process.

A t the third revocation hearing on November 7, a court 
reporter was furnished by the Safety Committee. I t  ap­
pears that the reporter for the final hearing on November 
13 was furnished by Mr. Lew is.

The most serious denial of due process in  these hear­
ings resulted from another action of the Committee. A t 
the close of the November 7 hearing, Mr. Lew is was not 
finished with his cross-examination of Mr. Arens. A t 
the close of that hearing the Committee considered Mr. 
Arens under subpoena for the hearing on November 13. 
According to the record before the court, very little  time 
was accorded Mr. Lew is for cross-examination of the w it­
ness at this hearing.

Mr. Arens did not appear at the November 13 hearing. 
Both Mr. Lew is and Mr. DeG-root, attorney for the T ru s­
tee, stated they had further questions for him.(6) No fu r­
ther opportunity was afforded for cross-examination of 
Mr. Arens.

7 2c
Appendix B —  Opinion of the District Court

(6) Mr. Vanden Berg: What are your plans?

Mr. Lewis: First to restate some of the notes I have here and then to continue cross- 
examination of Mr. Arens. That was my original plan, and go into some ques­
tions with the Chief of Police.

*  * *  *

Mr. Miller: (City Attorney) I suggest we ignore the testimony of Mr. Arens of 
last week and Mr. Lewis be given the opportunity to proceed.

Mr. Lewis: I certainly do not agree to that procedure.

Mrs. Lamberts: I move we follow the procedure suggested by the City Attorney.

Mr. Lewis: You feel you are able to throw out of your mind all of Mr. Arens’ 
testimony, the majority of which was in answer to questions from you?

Mrs. Lamberts: My motion is we proceed to disregard the testimony of Mr. Arens 
and Mr. Lewis be allowed to proceed to ask questions of the Police Chief and 
Lt. Szumski relative to this question of revocation.

Mr. Vanden Berg: I think I will have to agree with Mr. Lewis. We might be able 
to do this but this testimony has been imbedded in our minds and will influence

(Tr. pp. 7-8)



A t the November 13 hearing, Mr. Lew is was allowed to 
cross-examine Chief Johnson. A  time lim it was placed 
on the hearing, as it  was on the November 7 hearing. A l­
though Mr. Lew is stated that he had witnesses present 
he wished to present, the hearing was adjourned without 
affording him the opportunity to do so. Tim e was never 
made available for the Trustee’s attorney to cross-examine 
witnesses present, or present evidence he may have had 
relating to this license.

These hearings therefore denied due process to Mr. Lew is 
and the Trustee, Mr. Nichols, in  that: no record was made 
at two of the hearings; the right of cross-examination was 
substantially ignored; and the right to present evidence 
was fu lly  ignored.

B y  resolution dated November 13, the Safety Committee 
recommended that the license be placed in escrow by No­
vember 20 or be revoked. A t the time of this resolution, 
the Safety Committee knew that the Trustee was under a 
stay order from  the Referee in Bankruptcy preventing 
him from  taking any action in  regard to this license.

Escrow  is a voluntary arrangement by the licensee; the 
Safety Committee had been told this d irectly by the L C C . 
Revocation can be requested by the local legislative unit 
upon the exercise of its discretion. Th is discretion may 
not be abused. Revocation cannot be requested as an u lti­
matum to an order by the Committee to place the license 
in escrow.

Revocation must have a basis in  fact, and these facts 
must be ascertainable. A  record must be made before there 
can be any semblance of a “ proper hearing” . Cross-exam ­
ination must be allowed. I t  is enough at this point to quote 
the Supreme Court in  the W illner case, supra:

“We have emphasized in recent years that pro­
cedural due process often requires confrontation and 
cross-examination of those whose work deprives a per­
son of his livelihood. * * * We think the need for con­
frontation is a necessary conclusion from the require­
ments of procedural due process in a situation such 
as this.” A t pages 229-230.

73c
Appendix B —  Opinion of the District Court



The action of the Safety Committee requesting revoca­
tion of the liquor license for B arnett’s B ar through the 
C ity  Commission is void for denying due process to Mr. 
Lew is and the Trustee.

Fo r the reasons stated in  this opinion, the revocation 
of the license by the C ity  Commission denied to P atric ia  
Ettress Bell, to the Trustee, Mr. Nichols, and to Mr. Lew is, 
equal protection of the law.

The motions rem aining to be ruled on may be disposed 
of quickly. The motion to dism iss of defendants C ity  of 
Grand Rapids and Superintendent of Police, W illiam  A . 
Johnson, filed A p ril 2, is denied.

The jurisdictional ground was ruled on at the tria l. Not 
a partnership, but an individual has claimed a violation of 
constitutional rights.

In  this court’s opinion, p lain tiff has no adequate ad­
m inistrative rem edy; and if  so the court would not require
its exhaustion. McNeese v. Board of Ed u catio n ,.........U .S.
........., 10 L .E d . 2d 622, decided June 3, 1963.

The motion filed by these defendants June 12 raises 
no questions not answered in this opinion, and is, there­
fore, denied.

The motion to dism iss of the L C C  filed November 30 
and subsequently renewed, is granted. The complaint and 
proofs fa il to make any claim  upon which relief can be 
granted.

The facts in this opinion are to be considered as findings 
of fact, and the law conclusions of law within the meaning 
of Rule 52(a) of the Federal Rules of C iv il Procedure.

It  is ordered that the C ity  of Grand Rapids, through its 
constituted officials, approve the transfer of the license at 
Barnett’s B ar and Lounge to Mr. Lew is and D r. English .

It  is ordered that the C h ief of Police cause his investiga­
tion form 1800 to be filed with the L C C , showing recom­
mendation of the transfer to Mr. Lew is and D r. En glish .

It  is ordered that the findings of the Referee in  Bank­
ruptcy concerning the ownership of this license be affirmed, 
with the noted exception.

It  is further ordered that the defendants W illiam  A . 
Johnson and the C ity  of Grand Rapids, its city  commis­

74c
Appendix B —  Opinion of the District Court



sioners, any officials, agents or employees, or any other 
person or persons acting for, with, or in  concert with city 
officials, or any agent or employee of the C ity  of Grand 
Rapids, are severally and ind ividually enjoined from  di­
rectly or indirectly interfering with the transfer of the 
liquor license involved in this case; or from  directly or 
indirectly using any fru its from  any conspiracy among 
themselves, or with any other person or persons, as a 
means of preventing the transfer of the Class C  liquor 
license from  P atric ia  Ettress B ell, through the Trustee in 
Bankruptcy, W illiam  Nichols, to Alphonse Lew is, J r .  and 
D r. Cortez En glish , during the pendency of this litigation  
and/or during the pendency of the application for trans­
fer before the L C C  of the State of M ichigan; and from 
communicating in  any way with the L C C , or any of its 
officers, agents, or employees, except as is provided by law 
and as is in  accordance with due process and fa ir pro­
cedural practice.

Dated: September 13, 1963.

Noel P . Fo x
D istrict Judge

75c
Appendix B —  Opinion of the District Court

A P P E N D I X  I.

C O N T R A C T  A N D  A G R E E M E N T

Th is contract and agreement entered into this 20 day of 
March, A .D . 1962, by and between Alphonse Lew is, Jr ., 
hereinafter known as first party, and P atricia  Ettress, here­
inafter known as second party, W IT N E S S E T H :

W H E R E A S , the parties hereto have heretofore been in­
volved in  various contracts relating to the operation of a 
Class C Liquor License under the name and style of B a r­
nett’s B a r & Lounge and



76c
Appendix B —  Opinion of the District Court

W H E R E A S , second party is indebted to first party for 
monies loaned, chattel mortgages, management fees and 
legal fees, and

W H E R E A S , first party has filed a suit against second 
party in the C ircu it Court fo r the County of Kent.

NOW , T H E R E F O R E , in  consideration of the covenants 
and agreement herein, it  is agreed by and between the 
parties hereto as fo llow s:

I.

That, P atricia  Ettress, second party, covenants and 
agrees:

1. To transfer, convey and assign a ll of her right, title 
and interest in  the Class C Liquor License here­
tofore operated as B arnett’s B a r & Lounge, to 
Alphonse Lew is, Jr ., his heirs or assigns;

2. To execute and place in escrow any papers neces­
sary to the completion of this agreement and the 
transfer and assignment of said Class C Liquor 
License to Alphonse Lew is, J r .  or his assigns;

3. To sign and deliver to first party at the time this 
agreement is signed a request for and consent to 
the Grand Rapids Police Department, the Grand 
Rapids C ity  Commission and the M ichigan Liquor 
Control Com m ission; requesting their consent to 
the transfer of said license from  second party to 
first party or his assigns;

4. To execute any and a ll papers necessary to com­
pletely carry out a ll the terms of this agreement 
or in lieu thereof said papers shall be signed upon 
orders of a Judge of the Kent County C ircu it 
Court in  case No. 65570;

5. To stipulate and agree to the immediate appoint­
ment of Alphonse Lew is, J r .  as a receiver of said 
license and his appointment as such receiver by



order of the C ircu it Court for the County of Kent 
in  the ease presently pending therein and issuance 
of the Class C Liquor License to said receiver by 
the Liq u o r Control Commission pending approval 
and transfer of said license to Alphonse Lew is, 
Jr ., h is heirs or assigns;

6. To assign a ll her right, claim s and causes of ac­
tion against Frederick Poel and/or Rosalind Bolt 
Larsen, their heirs or assigns or the heirs or as­
signs of Menso R . Bolt, said assignment to include 
claim s and causes of action of any kind or nature;

7. To make the C ircu it Court for the County of Kent 
or the Judges thereof irrevocable attorneys and 
agents in  fact with the power and authority to 
authorize and decree any act to be done in  con­
summation of this agreement ;

8. To transfer to the receiver a ll alcoholic beverages 
contained in  the inventory submitted to the Liq uo r 
Control Commission without costs;

9. To do no act or acts to im properly or unduly inter­
fere with the operation of said business by said 
receiver or the completion or execution of this 
agreement;

10. To transfer, assign and convey to first party a ll 
rights, claim s and causes of actions against Arnold
R . Levandoski, h is heirs, estate or assigns or the 
partnership of which he was a part during his 
lifetim e;

11. To release a ll right, title and interest in  any of 
the personal property heretofore used in the opera­
tion of said Barnett’s B ar & Lounge and any equity 
of redemption of the chattel mortgage in said prem­
ises on said personal property held or claimed by 
second p a rty ;

12. To cooperate fu lly  with first party for conferences 
and court appearances, if  any be necessary, in

77c
Appendix B  —  Opinion of the District Court



connection with any of the claim s against second 
party or in  the enforcement of any of the claims 
second party assigns to first party;

13. To keep first party advised of her whereabouts at 
a ll times and not to cooperate with any of her 
creditors or to do any other act or thing to jeoper- 
dize first p arty ’s exercise of assignments or claims 
or defense to any claim s or causes of action against 
second party.

In  consideration of the covenants and agreements herein, 
first party agrees to :

1. To settle, compromise and hold second party en­
tire ly  harmless from the following debts and ob­
ligations provided a ll of said debts can be settled 
and compromised for a sum not to exceed $7100.00.

D r. Cortez En g lish  
Taylor 0 . Hayes
Decker, Davies, Jean and Mackey Insurance 

Agency
A rthur Kram er or Dorothy Kram er, doing busi­

ness as Kent Bookkeeping Service 
Personal property taxes for the C ity  of Grand 

Rapids
Personal property taxes for the County of Kent 
M ichigan Department of Revenue, for taxes, 

including, but not lim ited to sales taxes 
and business activities taxes 

United States Internal Revenue Service in ­
cluding but not lim ited to the 1959, 1960 
and 1961 withholding and personal income 
taxes and 1962 excise taxes;

2. To save second party harmless on a ll claim s and 
obligations and causes of actions by Frederick W. 
Poel, Rosalind B o lt Larson and heirs or assigns 
or the Estate of Menso R . Bolt arisin g out of the 
handling of or connected with the handling of, the

78c
Appendix B —  Opinion of the District Court



Estate of Stanley Barnett, Sr., Bessie Barnett, 
Stanley Barnett, J r .  and/or P atric ia  Barnett, or 
arisin g out of or being a part of a present claim  
in a suit by Frederick W. Poel and Rosalind Bolt 
Larson in  the Kent County C ircu it Court against 
second party.

3. To save second party harmless from a ll claims 
and causes of actions by Arnold Levandoski, his 
heirs, assigns or estate or the law firm  with which 
he was connected at his death;

4. To pay to the law firm  of Rom and Newton D illey  
the sum of $1700.00 in escrow upon the terms and 
conditions hereinafter provided to be held by 
them in  trust for the payment of their fees and 
expenses, the Associates Discount or Loan Cor­
poration and miscellaneous debts of second p a rty ;
To pay the sum of $200.00 at the time of execution 
of said agreement and the sum of $200.00 on 
August 1,1962 and the sum of $100.00 Sept. 1, 1962 
and the sum of $100.00 on the 1st day of each 
follow ing month so long as first party is operat­
ing the bar as receiver until a total sum of $1700.00 
is paid;
It  is further understood and agreed that on August 
1,1962 the said lawfirm  of Rom and Newton D illey  
may withdraw from  said trust fund and apply to 
their fees the sum of $400.00 and on September 
1, 1962 may withdraw and apply upon their fees 
the sum of $100.00' and a like sum of $100.00 on the 
1st day of each month during the operation of 
said business by Alphonse Lew is, J r .  as receiver 
until the sum of $1000.00 has been so applied;
Notwithstanding any of the above terms and con­
ditions, any balance of said $1700 not already paid 
shall be paid within 10 days after the transfer 
of said license and m ay be applied immediately as 
hereinbefore stated;

79c
Appendix B —  Opinion of the District Court



5. To act as receiver fo r the operation of said bar 
during the pendency of proceedings for the trans­
fer of the license to first p arty; and hold second 
party harmless from a ll obligations in  connection 
therewith;

6. To receive no other compensation as receiver other 
than the net preceeds from  the operation of said 
business heretofore known as B arnett’s B a r & 
Lounge;

7. To refrain  from any attempt to recover or obtain 
any money or thing of value from  second party 
arising out of the operation of B arnett’s B a r & 
Lounge or any other claim  first party may have 
against second party and to hold second party 
entirely harmless thereform and particularly, but 
not lim ited to, claim s for rent, loans, m anager’s 
fees and attorney’s fees.

It  is further covenanted and agreed between the parties 
hereto that first party shall dism iss or be responsible for 
obtaining dism issal of the present suit by first party and 
D r. Cortez A . En g lish  pending in  the Kent County C ir­
cuit Court upon the transfer of the Class C Liquor License 
to first party or his assignees.

It  is further covenanted and agreed that the receivership 
of Alphonse Lew is, Jr ., shall be terminated 10 days after 
final disapproval of the transfer of the Class C Liquor 
License from second party to first party or his assignees 
or the final refusal of the United States Internal Revenue 
Service to compromise and settle its claims against second 
party in  accordance with paragraph (1) above, whichever 
first occurs. It  is further agreed that a successor receiver 
may be appointed upon the mutual consent of the parties 
hereto and the proceeds of said business or operation shall 
be paid to the Clerk of the Court at intervals not to exceed 
60 days or as directed by the Kent County C ircu it Court 
in  case No. 65570.

It  is further understood and agreed that the proceeds 
over and above the necessary expenses of the successor re-

80 c
Appendix B —  Opinion of the District Court



ceiversMp as approved by the Court shall be held in  trust 
for the follow ing purposes; and order of p rio rity;

(a) F o r the payment of any unpaid portion of the rea­
sonable attorney fees owed by second party to her 
attorneys, Bom and Newton D ille y ;

(b) F o r the payment to first party in refund of any 
sums first party has paid to Rom & Newton D illey  
to apply on, or have been applied on their attorney 
fees under this agreement, this being a reference 
to the in itia l and monthly payments payable to 
Bom & Newton D ille y  in  escrow as hereinbefore 
provided;

(c) F o r the payment to first party in  refund of the l i ­
cense fees that he has in fact paid, pro-rated for 
the unused portion of the license year during which 
his receivership terminates.

It  is  further covenanted and agreed that this agreement is 
not and shall not be considered a third party beneficiary 
contract or fo r the benefit of any other person or persons 
other than the parties hereto and shall not be enforceable 
by any other person or persons other than the heirs or as­
signs of the parties hereto.

It  is  further stipulated and agreed that this agreement 
shall be subject to the transfer of the license from  second 
party to first party or his assigns by the M ichigan Liquor 
Control Commission and that no money shall be paid out in 
connection with this agreement except as herein provided 
until the transfer of said license is  so approved and trans­
ferred to first party.

IN  W IT N E S S  W H E R E O F , the parties hereto have 
hereunto set their hands and seals this 20 day of March, 
1962.

81c
Appendix B —  Opinion of the District Court

W IT N E S S E S :

(s) Alphonse Lew is, J r . 
(s) P atric ia  Ettress

(s) Charles N. Dewey, J r .



Appendix B — Opinion of the District Court 
A P P E N D IX  I I .

(Letterhead of Liquor Control Commission —  Lansin g) 
A p ril 6, 1962

Grand Rapids Police Department 
Grand Rapids, M ichigan

Attention: Chief of Police
Dear S ir :
Under date of October 13,1961 we forwarded two (2) forms 
L C  1800 to cover the transfer of the Class “ C ”  license held 
in the name of P atric ia  Ettress to Alphonse Lew is and D r. 
C. A . English.
Th is has been a complex matter which we hope has now 
been satisfactorily clarified. We understand the violations 
and tax difficulties have a ll been resolved.
The 1961 license has been returned to the location where it 
is being operated under a Power of Attorney issued by 
the licensee.
It  is respectfully requested we be furnished the 1800 forms 
with whatever recommendation the Police Department in­
tends, in  order we may clear up this matter as soon as 
possible.
We have a copy of notice No. 65570, in  which the licensee, 
P atric ia  Ettress, requests the local authorities in  Grand 
Rapids to permit the transfer of the license.
May we hear from you at your convenience regarding this 
matter.

V ery  tru ly yours,
M IC H IG A N  L IQ U O R  C O N T R O L 

CO M M ISSIO N
(s) Edw ard F . Maloney 
Edw ard F . Maloney, Director 
License D ivision

82c

E F M  :br



Appendix B — Opinion of the District Court 

A P P E N D IX  I I I .

(Letterhead of U .S. Treasury Department, Internal Reve­
nue Service, Office of the D istrict D irector)

Grand Rapids, Michigan 
A p ril 12, 1962

83c

In  Rep ly Refer to 
D A R : 15 G F F

Superintendent of Police 
C ity  of Grand Rapids 
Grand Rapids, M ichigan

R e: Transfer of Liquor License 
From

P atric ia  Ettress 
To

Alphonse Lew is, J r .

It  has been brought to the attention of this office that 
Mr. Alphonse Lew is, Jr ., Attorney at Law , Grand R ap ­
ids, M ichigan has applied for the transfer of the Liquor 
license held by P atric ia  Ettress, D B A  Barnett B ar, 60 
Ionia Ave. S.W ., Grand Rapids, M ichigan.
F o r your inform ation, P atric ia  Ettress is indebted to the 
Federal Government for past due Federal taxes for which 
Notices of Lie n  have been tiled with the Register of 
Deeds, Kent County, M ichigan.
A  “ Stop O rder”  has been placed on the transfer of this 
license with the M ichigan Liquor Control Commission 
asking for their cooperation in holding up any transfer 
until the Government’s obligation is satisfied.
I f  at a ll possible, this office would like a sim ilar order be 
made a part of your file in the matter of the transfer of 
the license to Mr. Lew is.



Thanking you for your cooperation in  this and past matters 
I  remain,

84c
Appendix B —- Opinion of the District Court

Sincerely,

R . I.  Nixon 
D istrict Director 
B y :

Gordon F . Fo re ll 
Revenue Officer



8 5c
Appendix C —  Opinion of the U. S. Court of Appeals

A P P E N D I X  C 

OPINION
(F ile d  February 16, 1966 

(356 F . 2d 276)

No. 15669

U N IT E D  S T A T E S  C O U R T O F A P P E A L S  
F O R  T H E  S IX T H  C IR C U IT

A lphonse Lewis, Jr.,
Plaintiff-Appellee, 

vs.
City of Grand Rapids, Michigan, et al., 

Defendants-Appellants.

Appeal from  tbe U .S. D istrict Court of the W estern 
D istrict of M ichigan.

Decided February 16, 1966.

Before Cecil, O ’Su llivan  and Edw ards, C ircu it Judges.
O ’Su llivan, C ircu it Judge. Appellants, C ity  of Grand 

Rapids, M ichigan, and its Chief of Police, W illiam  A . John­
son, challenge a judgment of the United States D istrict 
Court which vacated an order of the Grand Rapids C ity  
Commission denying approval of the transfer of a Class 
C liquor license to plaintiff-appellee, Alphonse Lew is, and 
affirm atively ordered the Chief to recommend and the C ity  
to grant such approval. Under the M ichigan Liquor Con­
trol Act, such approval was required before the Liq u o r Con­
trol Commission would effectuate the transfer. M .S.A. 
§ 18.988. Boodvoets v. Anscer, 308 Mich. 360



_ The D istrict Judge held that the C ity  Com m ission’s ac­
tion was the product of racial and other invidious discrim i­
nation and that plaintiff, a negro, was entitled to, and was 
denied, due process of law in the C ity ’s consideration of his 
application for such approval. A fte r the desired approval 
was refused, and after a subsequent resolution of the 
Commission requesting the Liquor Control Commission to 
revoke the involved license, p laintiff brought this action in 
the United States D istrict Court at Grand Rapids. H is 
complaint charged deprivation of rights guaranteed by the 
F irs t  and Fourteenth Amendments to the United States 
Constitution, and asserted jurisd iction under pertinent 
c iv il rights sections of the Ju d ic ia l Code.

We hold that the D istrict Judge erred in his conclusion 
that consideration of the transfer application had to comply 
with traditional procedures of due process, viz, specification 
of grounds for refusal, presentation of evidence supporting 
such grounds, confrontation of witnesses with opportunity 
for cross-examination, and like procedures.

I f  racial bias or invidious discrim ination motivated the 
actions of the C ity  of Grand Rapids, or if  denial of the 
transfer approval was the consequence of a conspiracy to 
deny p laintiff Lew is his c iv il rights, then such actions must 
be struck down as a denial of the Fourteenth Amendment’s 
guarantee to p laintiff Lew is of equal protection of the law. 
Clicker v. Michigan Liquor Control Commission, 160 F (2 ) 
96 (C A  6, 1947). Our review of the entire record of the 
case, however, leaves us with “ the definite and firm  con­
viction that a mistake has been committed”  by the D istrict 
Court findings in  such regard. United States v. U.S. Gyp­
sum Co., 333 U .S. 364,395, 92 L . Ed . 746, 766 (1948). Fed. 
R. C iv. P . 52(a). We reverse the judgment of the D istrict 
Court of the extent that it  vacates the order of the C ity  
Commission denying the transfer and affirm atively orders 
approval thereof. The C ity ’s brief does not challenge the 
D istrict Ju d ge’s finding of denial of due process in the re­
vocation of the license. We therefore, do not discuss that. 
McGraw v. United Ass’n of Journeymen & App. of Plumb­
ing, etc., 341 F (2 ) 705 (C A  6, 1965).

Much of the troubled history of B arnett’s B ar, a Class 
C liquor establishment of Grand Rapids, is set forth in  the

86c
Appendix C —  Opinion of the U. S. Court of Appeals



extensive opinion of the D istrict Judge. Leivis v. City of 
Grand Rapids, 222 F . Supp. 349-396 (W .D. Mich. 1963). The 
opinion contains the D istrict Ju d ge ’s subjective conclusions 
and factual inferences upon which he based his findings. 
The Chief of Police and six  of the seven members of the 
C ity  Commission of Grand Rapids were convicted of con­
sp iring to invidiously discrim inate against p la in tiff Lew is, 
motivated, at least in  part, because he was a Negro.

P la in tiff Lew is relevant connection with B arnett’s B a r 
began in  early 1959. Mr. Lew is, an attorney, had repre­
sented P atric ia  Barnett while she was under guardianship 
during her m inority. H er properly at that time consisted 
principally of her interest in  the estate of her deceased 
father, the form er licensee of B arnett’s B ar, who had also 
been a client of Mr. Lew is. B y  m arriage, P atric ia  Barnett 
became P atric ia  Ettress, and later P atric ia  Bell, The 
Liquor Control Commission did not consider this then 23 
year old g ir l qualified to operate the bar and an in itia l 
step in Mr. Le w is’ service to his young client was the 
m aking, on May 20, 1959, of a contract which made 
him the manager of B arnett’s B ar. 'This arrangement 
was approved by the police authorities of Grand R ap ­
ids and was apparently required by the Liquor Con­
tro l Commission as a condition to restoration of the 
license which had been suspended because of previous de­
faults. B y  this contract, p laintiff Lew is was to act as 
Mrs. E ttre ss’ attorney as well as manager of her bar. He 
was given broad powers to sign a ll needed documents, and 
otherwise to exercise fu ll control over the operation of the 
bar, including the righ t to hire and fire a ll of its employees. 
Lew is was to be paid 6% of the b ar’s gross sales for the 
first year of his employment and 10% for the second and 
any subsequent term of the contract, with a guaranteed 
annual minimum compensation of $2,000.00. The contract 
further provided that Lew is was to be “ the agent and 
attorney in  fa ct”  fo r his client. The record is unclear as 
to the amount of time Mr. Lew is spent at the bar in  perform ­
ance of his m anagerial duties. D uring the time of his 
management there were several defaults in  payment of 
federal and state taxes, although it appears that Mr. Lew is 
cured at least one of such defaults with a loan from  his

87c
Appendix G —  Opinion of the U. S. Court of Appeals



own funds. One or more of such defaults brought about 
so-called “ stop”  orders to prevent the continued opera­
tion of the bar. D uring this period Lew is obtained a 
chattel mortgage on the bar equipment to secure advances 
made to Mrs. Ettress.

In  August of 1960, as the consequence of a police in ­
vestigation at the Barnett B ar premises, a complaint was 
filed with the Liquor Control Commission and with a Judge 
of the Police Court of Grand Rapids that the persons 
named therein were carrying on “ the numbers game.”  
A rrests of several persons were made. Mr. Lew is acted 
as attorney for those arrested and ultim ately a ll charges 
were withdrawn or dism issed except as to one accused who 
pleaded guilty on October 2, 1961, to the unlawful posses­
sion of policy or pool tickets “ at 58-60 Ionia Avenue, S .W .”
-—- the building where the bar was located.

On November 15, 1960, P atric ia  Ettress agreed to sell 
her license and business to one D r. Cortez En g lish  for 
$18,000.00. In  May of 1961, Lew is amended the En glish  
agreement to add him self as a purchaser with D r. En glish , 
In  A p ril of 1961 Lew is had acquired a contract purchaser’s 
interest in  the building in which B arnett’s B ar was located. 
The sellers had acquired their title from  P atric ia  E ttre ss’ 
stepmother. The contract of purchase in which Lew is ac­
quired an interest was in  the names of his sisters. Follow ­
ing the m aking of the contract under which Mr. Lew is was 
to join in  buying out his client, there began the steps to get 
the needed approval of a transfer of the license to p laintiff 
Lew is and D r. English.

D uring 1961 and into 1962, Mrs. Ettress at various times 
expressed her dissatisfaction with Mr. Le w is’ conduct and 
with his plan to acquire her license. On several occasions 
she wrote to the Liquor Control Commission, withdrawing 
her consent to a transfer. On M ay 10, 1961, she wrote to 
Lew is expressing her desire to terminate the management 
contract, stating “ you are unable to take care of my affairs 
* * * because of conflicting interest.”  On October 21, 1961, 
following two and one-half years of Le w is’ management 
of the bar, M rs. Ettress reported to the Liquor Control 
Commission that her bar business was then under padlock 
for failure to satisfy Federal tax liens and that her license

88c
Appendix C —  Opinion of the U. S. Court of Appeals



was then in  the hands of the Internal Revenue Service; 
that her only out “ now as before”  was to sell her business 
to pay her debts. She asked that the pending application 
for transfer be withdrawn “ because of some things that 
have happened since that application was sent in originally 
with only D r. Cortez En g lish  as the buyer, before he re­
quested that attorney Alphonse Lew is, Jr ., be named as a 
partner.”  H er letter proceeds,

“ He has been the manager of the before mentioned 
B arnett’s B a r and also my attorney and financier on 
many occasions. I  had repeatedly asked him for a final 
accounting and he gave it  to me this summer after I  was 
a ll ready committed to sell it  to him. But, in  a nut 
shell it goes as follows, for managers fees from May 
21, 1959 to May 21, 1961, 6% of the gross income for 
the first year and 10% of the gross income for the 
second year. W hich came to $8,406.78. I  of course 
had never been in  business before and that was why the 
Commission requested that I  have a manager at the 
time and also because I  was only twenty-three at the 
time. Then also he w asn’t what he referred to as a 
working manager because he is a attorney by pro­
fession law. So of course there were times when he 
didn’t even come near the business few days at a 
time. He also billed me for miscellaneous legal fees 
which came to $2609.50. I  felt that some of these 
came under management. In  loans from him the 
amount comes to $6079.87, with 6% interest added in 
of course. The latter of which I ’m more than w illing 
to pay back to him and I  have no doubt in my mind 
that I  owe him for what I  borrowed from  him. The 
grand total of this is $17,096.15. The sale that I  men­
tioned before was for only $18,000. A s you can see 
this leaves me with the problem of paying my other 
obligations, which I  couldn’t pay for in  a life  time 
as I  couldn’t possibly earn enough on a job to pay 
them.

*  #  #

“ I ’m sending you a copy of a agreement that Mr. 
Lew is gave me to be considered and signed by me in

89c
Appendix C —  Opinion of the U. S. Court of Appeals



lieu of a loan of $800.00 more to be paid by him to the 
Internal Revenue office to release the padlock. We 
had tried a situation sim ilar to this and instead of his 
paying the tax he was in  Lansin g  at some kind of a 
hearing with your Mr. Ressi to reconsider his applica­
tion. He had however been in charge of the money 
because he had loaned me money to avoid closing for 
sales tax and I  thought perhaps the whole business 
would be cleared up before this situation would have 
to be continued for long as it  was not agreeable to 
me.
“ He had however gotten money from  the bar to pay 
these taxes to a degree that would have satisfied Mr. 
Farre ll. Instead the bar was padlocked and that is 
how things stand at the present time. He paid some 
of the obligations of the bar and kept the rest for his 
b ill or against his b ill I  should say and he wouldn’t 
even give me the money as I  had none to live on because 
I  had been home sick.”

On December 19, 1961, Mrs. Ettress wrote the Commis­
sion ‘ ‘ that the application for transfer of my license to Mr. 
Lew is and Mr. En glish  is hereby cancelled.”

T a x  defaults were chronic during the upwards of three 
years of Mr. Le w is’ management and it appears that for 
such entire period the personal property taxes due the C ity  
of Grand Rapids went unpaid. Additional circumstances 
preventing a license transfer were the long pending gam­
bling charges. It  was a policy of the Liquor Control Com­
mission not to complete a transfer of a liquor license while 
violation charges remained outstanding. The long and con­
fused route of the charges against the bar is set out in 
the D istrict Ju d ge’s opinion, 222 P . Supp. at pages 353-355. 
Prom  August, 1960, when some four or five men wrnre 
arrested in a raid  at the bar premises, until October 2, 1961, 
some charges remained pending. A ll of those charges were 
represented by Mr. Lew is. Two of those were dism issed 
on examination, two more had their cases nolle prossed, and 
one entered a plea of gu ilty  to the possession of gam bling 
paraphernalia “ at 58-60 Ion ia Avenue”  —  the address of

90 c
Appendix C ■—- Opinion of the U. S. Court of Appeals



the building where the bar was located. The D istrict 
Judge found that this charge did not involve the bar it ­
self, but we are unable to clearly understand how this 
conclusion was arrived at. Follow ing the above disposi­
tions, the Liquor Control Commission on October 31, 1961, 
concluded its own investigation of the gam bling charges. 
Its  report concluded that “ there is no doubt * * * that there 
has been some gam bling operations in  your bar with the 
knowledge of your bartender.”  The exam ining officer d is­
missed the charges with the observation that he “ was 
glad you’re (M rs. Ettress) going out of the business and I  
understand that you’re (Lew is) going on * # *. I ’m sure 
you’ll (Lew is) be able to curtail the activities.”  A ll of 
the foregoing, however, occurred during Le w is’ manage­
ment. He appeared, however, to cast the blame for any 
irregularities upon his client, M rs. Ettress.

W hile the end of the gam bling charges came, tax diffi­
culties were continuing. Appellee Lew is recites trans­
actions which eventuated in his acquiring his client’s inter­
est in  the bar fixtures,

“ In  August of 1961 the sales tax man and the state 
police came to close her up, and after a half day con­
ference they agreed if  she turned over financial con­
trol of the bar to me, if  I  kept track of the money that 
came in from  the bar and paid the sales taxes, that 
they would let her continue to operate, in  addition also 
upon my paying $500 to them immediately and paying 
the sales tax weekly.
“ Thereupon, this was communicated to Mr. F a r ell of 
the Internal Revenue, and at that time Mr. F a re ll 
had demanded that she come up with certain amounts 
of money. I  had some money at that time and offered 
to pay it to Mr. Fare ll, if  M rs Ettress would be sure 
that she didn’t dissipate any more of the money. I  
could never get a firm  agreement out of her, to my 
satisfaction, and so I  did not pay Mr. Fared  that 
particular money, and Mr. Fared  was kept aware, of 
course, of the money as it was accumulated. Then he 
closed the bar, as indicated here before.”

91c
Appendix C —  Opinion of the U. S. Court of Appeals



On November 13, 1961, the Internal Revenue agent sold 
the bar fixtures at auction and Lew is bought them in for 
$50.00. The $50.00 paid did not satisfy the Internal Revenue 
taxes and the bar remained closed from September 21, 
1961, until A p ril 6, 1962. Lew is asserts that by such pur­
chase he acquired for him self his client’s equity in the bar 
equipment over and above Le w is’ chattel mortgage. He 
testified:

“ Q- * * * You purchased certain property from  the
Internal Revenue Service on auction sale on November 
13, 1961, is that correct?
“A. Correct.
“ Q. W hat price did you pay?
“ A . $50.00. Now, that was also the second auction. 
The original auction went fo r $1,400.00 and the person 
couldn’t pay for it. * * *.
“ Q. W hat did you purchase on that auction?
“ A . It  was the equity * # * the equity of redemption 
of Mrs. Ettress over and above the chattel mortgage 
which I  then held on a ll the bar equipment.”

The complaint in  this case alleges that the Internal Revenue 
Service “ sold a ll the right, title and interest of P atricia  
Ettress at public sale * * * to plaintiff (Le w is).”  We do 
not find that Lew is has ever announced or considered that 
the title he then acquired was to protect or as trustee for 
his client. In  December, 1961, P atricia  Ettress wrote to 
the Liquor Control Commission that she considered the 
application for transfer to Lew is and D r. En g lish  void. 
On December 14, 1961, she made a sworn statement to a 
Grand Rapids Police Lieutenant that she would not go 
through with a sale to Lew is and En glish , saying, “ I  don’t 
want to transfer it to them sim ply for credit for Mr. Lew is ’ 
b ills .”  The confusion existing in these months is set forth 
in  the D istrict Ju d ge’s opinion at 222 F . Supp. 356-358.

Mrs. E ttre ss’ recalcitrance was met hy a lawsuit filed on 
December 21, 1961, in  the State C ircu it Court at Grand 
Rapids, whereby Mr. Lew is sought to specifically enforce 
the agreement that his client had made with D r. En glish  
and to which he had become a party. H is  complaint asked

92c
Appendix C — Opinion of the U. 8. Court of Appeals



that he be appointed receiver of B arnett’s B ar. Th is was 
refused. Le w is’ application for transfer continued unde­
termined into 1962. The Safety Committee of the Grand 
Rapids C ity  Commission which was considering the re­
quest for transfer to Lew is and D r. En glish , undertook to 
study Le w is’ law suit against his client, the transferor. On 
March 20, 1962, an agreement settling the law suit was 
entered into. B y  it, Lew is and D r. En glish  agreed that in  
addition to the $18,000 o rig in ally  agreed upon they would 
assume and pay an additional $7,300 of M rs. E ttre ss’ debts. 
Th is agreement was subject to approval of the transfer 
of the license. See appendix to the D istrict Court opinion 
at 222 F . Supp. 391.

The agreement of November 15, 1960, with D r. English , 
was drafted and concluded in Lew is ’ office. There is nothing- 
in  the evidence to indicate that D r. En g lish  was otherwise 
than Lew is ’ client. The sale price of $18,000 was originally 
to be paid in cash. It  was not then geared to what Le w is’ 
client then owed, or would owe to him for advances and 
services. It  was after Lew is was added as a purchaser that 
he rendered a statement to his client totalling slightly more 
than $17,000. Th is amount was made up of loans at 6% 
interest, amounting to about $6,000, and Le w is’ fees as 
manager and attorney in the amount of about $11,000. 
W ith the addition of $1,920 that Mrs. Ettress owed to D r. 
En glish , the arrangement would leave her still owing a 
balance to Lew is and D r. English . There is no evidence 
that in  the m aking of this deal Mrs. Ettress had any other 
advisor than her attorney and manager, Mr. Lew is. In  
May, 1961, the price was $18,000. When she was sued for 
performance of that agreement by her own lawyer, Mrs. 
Ettress obtained new counsel. When this litigation was 
presumably settled in March of 1962, about $7,300 was 
added to the purchase price by way of assuming additional 
debts of Mrs. Ettress.

Among faults charged to the C ity  Commission by the 
D istrict Judge was failure to detail to Lew is its reasons 
for not approving him. He found as a fact that the Com­
m ission had not, prior to the revocation proceedings, made 
specifications to Lew is of the reasons which prompted its

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actions. It  does appear that no form al enumeration of 
the reasons for denial was provided. But, whether form al­
ly  notified or not, during consideration of the transfer 
Lew is was aware of the things which, at the tria l of this 
case, were identified as the causes of his being disapproved. 
He knew about the tax defaults and the closing of the bar 
therefor. He testified that he told the Safety Committee 
that the taxes would be paid if  he was approved as a trans­
feree. Th is conditional promise was not a substitute for 
discharge of an obligation assumed when he was given the 
exclusive financial control of the business. P lacing the blame 
on his client was not an answ er; neither was his intim ation 
that his client and a hoy friend were taking large sums of 
money from the enterprise. He knew about the gam bling 
charges. He was the lawyer for a ll persons involved. He 
knew about his own relations with his young client, to 
whom he stood in a position of high trust. He knew that 
this fiduciary relationship ended in his suit to require her 
to convey to him the asset which he had been m anaging for 
upwards of two years. He knew of her complaints about 
his management and her ‘ ‘ on again, off again ’ ’ attitude to­
ward transferring her license to him. The Grand Rapids 
authorities learned of these things in  the course of their 
numerous hearings on the transfer application.

Members of the C ity  Commission testified that the C ity  
Attorney had advised them that it  was not necessary to 
specify to applicants reasons for denying a transfer, that 
embarrassment of such applicants was thus avoided. It  
seems clear that during the Safety Committee hearings the 
standing of Mr. Lew is as an acceptable transferee of the 
license for Barnett’s B a r was deteriorating. We are of 
the view that considering the discretion vested in  a C ity  
Commission in the matter of transfers of liquor licenses, 
the C ity  Commission had ample ground fo r finding Mr. 
Lew is unacceptable.

Applications for transfer of liquor licenses are first re­
ferred fo r consideration and recommendation to a Safety 
Committee made up of three members of the Grand Rapids 
C ity  Commission. The latter is the elected governing 
body of the city and consists of seven members who serve

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part time, meeting regularly once a week. The Chief of 
Police submits a Liq uo r Control Commission form (L C C  
1800) g ivin g  his recommendation as to transfers. Th is is 
considered, but not necessarily controlling. It  had not been 
the practice of the Safety Committee to hold form al hear­
ings, with the taking of testimony and like procedures.

H earings of the Safety Committee to consider Le w is’ ap­
plication extended over a period from  Janu ary 16, 1962, to 
Ju ly  31, 1962, at which latter date his application was de­
nied. A t the Jan u ary 16 hearing, Lew is was present and 
spoke for him self and D r. En glish . The matter was then 
tabled to allow Commissioner Sevensma, a lawyer, to re­
view p laintiff Le w is’ then pending suit against his client in 
the C ircu it Court of Kent County, M ichigan. Through 
this investigation, the Safety Committee learned of the 
character and issues involved in  the litigation  between 
Lew is and his erstwhile client, and then unw illing trans­
feror. The above-detailed settlement of the lawsuit was 
made on March 20, 1962, and was conditioned upon ap­
proval of a license transfer to D r. En g lish  and p laintiff 
Lew is.

On A p ril 17, 1962, the Safety Committee again took up 
the matter. Lew is was present. A t this meeting, the 
Grand Rapids Chief of Police, W illiam  A . Johnson, present­
ed a letter dated A p ril 12, 1962, from  the United States In ­
ternal Revenue Service requesting that a “ Stop O rder”  be 
placed against a transfer of the license to Lew is. Th is let­
ter was signed by revenue agent Gordon F . Fo re ll.1 An 
earlier letter, dated A p ril 6, 1962, had been written by the 
Liquor Control Commission expressing the Com m ission’s

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Appendix C —  Opinion of the U. S. Court of Appeals

1 The letter, addressed to the “Superintendent of Police,” read:
“It has been brought to the attention of this office that Mr. Alphonse Lewis, Jr., 

Attorney at Law, Grand Rapids, Michigan, has applied for the transfer of the Liquor 
License held by Patricia Ettress, DBA Barnett Bar, 60 Ionia Ave. S.W., Grand Rapids, 
Michigan.

“For your information, Patricia Ettress is indebted to the Federal Government for 
past due Federal taxes for which Notices of Lien have been filed with the Register of 
Deeds, Kent County, Michigan.

“A ‘Stop Order’ has been placed on the transfer of this license with the Michigan 
Liquor Control Commission asking for their cooperation in holding up any transfer until 
the Government’s obligation is satisfied.

“If at all possible, this office would like a similar order be made a part of your 
file in the matter of the transfer of the license to Mr. Lewis.”



understanding that ‘ ‘ Th is has been a complex matter which 
we hope has now been satisfactorily clarified. We under­
stand the violations and tax difficulties have a ll been re­
solved.”  The Safety Committee’s desire to have recon­
ciled this apparent conflict between the Liquor Control 
Commission’s A p ril 6 statement that the tax difficulties 
had been settled and the Internal Revenue letter request­
ing a “ Stop O rder”  fo r failure to pay federal taxes is 
emphasized by the D istrict Judge as indicative of bad 
faith  in the Safety Committee’s delay in approving the 
transfer. Lew is contends, and the D istrict Judge agrees, 
that the Chief of Police solicited the Internal Revenue 
letter as a means of thwarting Lew is. The C h ie f’s denial 
of soliciting the letter and his attempt to explain its origin 
was cut off by the sustaining of a Lew is1 objection.2 The 
charge of solicitation finds its principal support in  p laintiff 
Le w is’ hearsay statement that he had heard that such was 
the case. In  a ll events, we find no im propriety in the 
C h ie f’s presentation of the letter, especially in  view of 
the chronic tax delinquencies of the bar under Le w is’ man­
agement. W hether solicited or not, the factual correctness 
of the Fo re ll letter is not questioned, v iz .: that notices of 
federal tax liens had been recorded; that a “ Stop O rder”  
on the transfer had been placed with the Liquor Control 
Commission; and that the Internal Revenue Service de­
sired sim ilar action by the C ity  of Grand Rapids. The 
record does indicate that Chief Johnson was developing 
a view that Lew is was not a desirable licensee for this bar. 
In  addition to the tax delinquencies, the Chief considered 
that the charged operation of the numbers game at the 
bar, and Le w is’ conduct in  handling his client’s affairs, 
lessened his attractiveness as a licensee.

Between the A p ril 17 and the Ju ly  24, 1962 meetings, 
investigation by the Liquor Control Commission continued; 
the agent in charge reported difficulty in  contacting Lew is, 
and Lew is then indicated that he was not in  a hurry to

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Appendix C —  Opinion of the U. 8. Court of Appeals

2 “Mr. Forell came into my office with Captain Szumski, explained the tax difficulties 
that they had had with this establishment, i n f o r m e d  m e  h e  p l a c e d  a  ‘S t o p ’ o r d e r  w i t h  t h e  

M i c h i g a n  L i q u o r  C o n t r o l  C o m m i s s i o n ,  and seemed to be quite concerned that * * *” 
(Here an objection was sustained on the ground of hearsay)



have the investigation concluded. On Ju ly  24, 1962, a hear­
ing was held before the Safety Committee with Lew is, D r. 
En glish , M rs. Ettress, and her then attorney present. Mrs. 
Ettress was then agreeable to a transfer to Lew is and 
D r. En glish . There is dispute as to what was said and done 
at the meeting, but seemingly a ll present had an oppor­
tunity to express themselves. Th is meeting concluded with 
a carried motion that the matter be tabled fo r three 
weeks. A t the tria l of this case, Lew is and the city of­
ficials expressed differing understandings of the import 
of tabling the matter. Lew is stated that he assumed a 
further hearing would be held in three weeks. Safety 
Committee members considered that the hearing was con­
cluded and that the tabling was m erely fo r the purpose of 
allowing the Committee to consider its decision, and to 
obtain some further inform ation from  the Liq uo r Con­
trol Commission.

In  a ll events, at the next regular meeting of the Safety 
Committee, Ju ly  31, 1962, the matter was taken from  the 
table by unanimous vote, and denial of the transfer recom­
mended. Lew is was not present nor given notice that 
such meeting was to consider his application. The reason 
given for acting without w aiting the three weeks was con­
cern that contemplated vacations of committee members 
m ight prevent early action. On the same day, at the regu­
la r meeting of the C ity  Commission, the Safety Com­
m ittee’s recommendation was unanimously approved by 
the six  members then present. The Chairm an of the 
Safety Committee in reporting to the Commission, con­
vened as a Committee of the Whole, gave as reasons for 
denial of the transfer the tax situation, Le w is’ dual ca­
pacity “ as manager, advisor and counselor”  and the 
“ poor operation”  of the bar under his management. These 
reasons, however, were not made a part of the form al mo­
tion by which the Commission adopted the Safety Com­
m ittee’s recommendation.

The affairs of B arnett’s B ar deteriorated further fo l­
lowing the denial of the transfer to Lew is. Mrs. Ettress, 
the licensee, had moved to F lin t, M ichigan. She had, on 
March 20, 1962, executed an assignment of her license to

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Appendix C —  Opinion of the U. S. Court of Appeals



Lew is and D r. En glish . On September 10, 1962, she filed 
a voluntary petition in bankruptcy. The license fo r the 
Barnett B ar was the principal asset of the bankrupt es­
tate. A  contest arose between Lew is and the trustee in 
bankruptcy as to its ownership. Lew is contended that as 
assignee of the bankrupt he was the owner. The referee 
held that the trustee was the owner. Thereafter, on Oc­
tober 2, 1962, the C ity  Commission of Grand Rapids in iti­
ated steps which culminated on November 20, 1961, in  a 
resolution requesting the M ichigan Liquor Control Com­
m ission to revoke the license of the Barnett Bar.

Because the D istrict Ju d ge’s vacation of such request 
for revocation is not here involved, we need not give de­
tailed recital of relevant events. Under advice of the 
C ity  Attorney, and because the M ichigan statute, M .S.A. 
§ 19.988, requires1 that a request to the L C C  for revoca­
tion be preceded by “ due notice and proper hearing,”  the 
C ity  Commission attempted to set up and hold a hearing 
that would comply with due process. The several hear­
ings antecedent to the final resolution, held on October 16 
and 24 and on November 7 and 13, created excitement and 
confusion. There is no doubt that by this time opposition 
to and possibly dislike of Mr. Lew is had developed and 
there was evidence of rem arks expressive of an intention 
to resist his efforts to take over B arnett’s B ar. On No­
vember 13, by unanimous vote of 7 to 0, the C ity Commis­
sion requested that the license be revoked “ unless the 
same is placed in escrow with the M ichigan Liquor Con­
trol Commission prior to November 20, 1962. ” s The l i ­
cense not having been placed in escrow prior to Novem­
ber 20, the Commission, on that date, requested uncon­
ditional revocation of the license. The Mayor of Grand 
Rapids cast a dissenting vote to such request. Except 
for this, a ll previous actions by the C ity  Commission in ­
volving the Barnett B ar license had been by unanimous 
vote. On November 19, 1962, the complaint in  the case at 
bar was started. 3

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Appendix C —  Opinion of the U. S. Court of Appeals

3 Under Michigan practice, where an underlying business has been interrupted or 
suspended, its license may be held “in escrow” awaiting its transfer to a new location 
or owner. The bankruptcy trustee was agreeable to such escrow, but Lewis was not.



Before setting out the reasons which prompt our de­
cision, we should give this broad summary of the case. 
The relevant and troubled history of the Barnett B ar be­
gan in  May, 1959, when Lewis' took over its management 
for his client, and ended in his client’s bankruptcy in Sep­
tember, 1962, at a time when he claim s to have become the 
part owner of the bar premises, had upon foreclosure ac­
quired the b ar’s fixtures, and had obtained an assignment 
of its  license. Although by broad inference Lew is at­
tributes some of the trouble to “ dipping into the t il l”  by 
his client and her boy friend, it is  neither claimed nor 
proved that action by the police or other m unicipal officers 
of Grand Bapids had anything to do with Le w is’ in ­
ab ility  to discharge h is fiduciary responsibilities so as to 
m aintain his client’s asset as a solvent and going enter­
prise. The only solution proposed was a sale of the busi­
ness to him.

We come then to the reasons which prompt us to hold 
first that in the proceedings prior to denial of the transfer 
to Lew is the due process clause of the United States Con­
stitution did not require the C ity  Commission to afford 
p laintiff Lew is a trial-type hearing, with form al specifica­
tion of reasons for finding Lew is unacceptable, with con­
frontation of witnesses, with the taking and recording of 
testimony and with other form alities that custom arily at­
tend a fu ll dress adversary proceeding; and, second, that 
p laintiff Lew is was not in relation to the transfer denied 
the equal protection of the law guaranteed him by the 
Fourteenth Amendment.

First, Due Process.

Dealing with the law of M ichigan, the liquor business 
has always been recognized as possessing a character vest­
ing in  public authorities a broad discretion in  the control 
and regulation of it. Shirlock v. Stuart, 96 Mich 193 
(1895); Johnson v. Liquor Control Commission, 266 Mich 
682 (1934); Scott v. Arcada Township Bd., 268 Mich 170 
(1934); McCarthy v. Thomas Township Bd., 324 Mich 293 
(1949); People v. Wheeler, 185 Mich 164, 171 (1915);

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Gamble v. Liquor Control Commission, 323 Mich 576, 578 
(1949); People v. Schafran, 168 Mich 324, 330 (1912); 
Case v. Liquor Control Commission, 314 Mich 632 643 
(1946).
Scott v. Arcada Township, supra, emphasized the differ­

ence between the granting of a license and its revocation, in ­
dicating that revocation m ight indeed require due process. 
Although in Johnson v. Liquor Control Commission, supra, 
266 Mich. 687, the M ichigan Supreme Court said “ a license 
[liquor] is not property w ithin the meaning of due process,”  
we need not consider the point, because p laintiff Lew is was 
not a licensee and could become such only upon approval 
of the transfer to him of the Ettress license. Section 17 of 
the M ichigan Liquor Control Act, M .S.A. § 18.988, re­
quires as a condition to issuance of a license, that the ap­
plication therefor “ shall be approved by the local legisla­
tive body.” Application to become a licensee by transfer 
must have like approval. Roodvoets v. Anscer, 308 Mich 
360, 363, 364 (1944).

On this due process question, we need not accept or rely 
on Eanson v. Romeo Village Council, 339 Mich. 612, 615 
which, relevant to the discretionary action of a local legis­
lative body, said “ even though exercised in  an arb itrary 
and capricious manner, we do not review it .”  We hold 
only that neither the F ifth  nor Fourteenth Amendments to 
the United States Constitution required that the Grand 
Rapids C ity  Commission hold a fu ll “ due process”  hear­
ing to consider p laintiff Lew is ’ request for the transfer to 
him of a license then owned by another.

The M ichigan legislature recognized a difference between 
issuance of a new license and revocation of an existing one. 
W hile Section 17 of the Act, M .S.A. 18.988, o rig in ally  pro­
vided that upon request of a local legislative body, “ the 
Commission shall revoke the license of any licensee,”  such 
section was amended in  1957 to provide that a request for 
revocation was to be made “ after due notice and proper 
hearing by the body.”  (Em phasis supplied.) Such re­
quirement, however, was not made applicable to approval 
of the transfer of a license.

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Appendix C — • Opinion of the U. S. Court of Appeals



It  is not necessary that we express agreement with the 
holding that ‘ ‘ a license is not property within the meaning 
of the due process clause.”  Johnson v. Liqioor Control 
Commission, 266 Mich. 682, 687. P la in tiff Lew is did not 
own a license to operate a liquor establishment, and the 
opportunity to seek approval to become an owner was not, 
in  our view, a property right.4 Such holding is consonant 
with our decision in  Clicker v. Michigan Liquor Control 
Com’n., 160 F (2 ) 96 (C A  6,1947) Avhere we said that “ The 
right to a license to sell intoxicating liquor is not a natural 
right, nor a privilege incident to national citizenship.”  
M ichigan’s view that the character of the liquor business 
permits greater latitude in the means of its regulation than 
in  the controls applied to other activities was paralleled 
by the United States Supreme Court in  Crowley v. Christen­
sen. 137 U .S. 86, 34 L . Ed . 620 (1890). The Court there said,

“ There is no inherent right to thus sell intoxicating 
liquors by re ta il; it  is  not a privilege of a citizen of 
the State or a citizen of the United States. A s it  is 
a business attended with danger to the community, it 
may, as already said, be entirely prohibited or be per­
mitted under such conditions as w ill lim it to the utmost 
its evils. The manner and extent of regulation rest in  
the discretion of the government authority. That 
authority may vest in  such officers as it may deem pro­
per the power of passing upon application for per­
m ission to carry it  on, and to issue licenses for that 
purpose.”

Although the Crowley case on its face appeared to hold 
that liquor licensing was even outside of the equal protec­
tion clause, this was not necessary to the decision, since, 
as the court noted, the city in  its return had alleged certain 
crim inal violations, which, while never raised at a hearing 
(there having been none) “ . . . were a sufficient indication 
of the character of the place in which the business was 
conducted for the exercise of the discretion of the police

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Appendix C — - Opinion of the U. S. Court of Appeals

4 Instructions to applicants for a license transfer carry the large block letter legend 
“Do not invest any money or commit yourself by any binding agreement in the expecta­
tion of receiving a license until you are officially notified of the approval.”



commissioners in refusing a further license to the peti­
tioner.”  The only inescapable rule of Crowley is  that the 
denial of a hearing, in  itself, would not violate the Fo u r­
teenth Amendment. Such a position is entirely consistent 
with the decisions of this Court in  the instant case and in 
Clicker v. Michigan Liquor Control Commission, supra.

Indeed the D istrict Judge here recognized the rules we 
speak of when he said,

“ We recognize that the M ichigan Supreme Court and 
the courts of the other states have held consistently 
that the due process clause of the United States Con­
stitution does not apply to matters concerning liquor 
licenses.”  222 F . Supp. 384

Such observation conforms to the great weight of authority. 
Anno. 35 A L E (2 )  1067. We, however, read his opinion as 
holding that a ll such decisions are now in  conflict with to­
d ay’s view of the reach of the Fourteenth Amendment.

The United States Supreme Court, in  recent decisions, 
has been esacting in  its requirement of due process before 
a state agency may deny entrance of citizens into the 
practice of a profession or other calling, such as the practice 
of law, Schivare v. Board of Bar Examiners, 353 U .S. 232, 
1 L .E d .(2 ) 796 (1957); Willner v. Committee on Character 
and Fitness, 373 U .S. 96, 10 L . E d .(2) 224 (1962). None 
of these decisions, however, can be read to control the case 
of an application for transfer of a liquor license. The 
traditional m unicipal interests in  regulating the liquor 
business, together with the problems of conducting this 
regulation through competent, civic-minded, part-tim e offi­
cials, require the use of flexible procedures. These 
exigencies of city management must not be disregarded by 
ordering that p laintiff Lew is, and everyone else w ishing to 
become a transferee of a liquor license, receive a process 
including “ * * * actor, reus, Judex, regular allegations, 
opportunity to answer, and a tria l according to some settled 
course of jud icia l proceedings.”  Cafeteria Workers v. 
McElroy, 367 U .S. 886, 895, 6 L , E d (2 ) 1230 (1961). W hile 
we hold that such kind of due process did not have to 
precede the denial of the transfer to Lew is, the evidence

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103c
Appendix C —  Opinion of the U. S. Court of Appeals

makes clear that he was given repeated hearings with 
opportunity to present and argue his own position. The 
things which made him unacceptable as a transferee —  the 
tax delinquencies and the closing of the bar —  the history 
of gam bling — a generally poor operation under his man­
agement —  and his relations with his client, highlighted 
by his law suit against her — were known to him and to 
the Commission. Although not set in  a form al charge, they 
were the subject of much discussion.5

5 These excerpts from the Safety Committee members give an idea of what went on. 
Commissioner Jamo described Lewis’ conduct: “We never seemed to get to the 

meat. We always went round and round. You were there and we figured today you are 
going to bring up your testimony and we will get this resolved. You never seemed 
to touch on the point we were talking about.”

Commissioner Lamberts testified to discussions, in Lewis’ presence, at the Safety 
Committee hearings and which exhibited Lewis’ attitude toward his own responsibilities: 
“On some occasions he would say that he was not — he had no responsibility for the 
fact that the bar was losing money, the fact that the taxes were not paid, the fact 
that a gambling operation had been going on in that bar. He had no responsibility for 
the things that went wrong.”

“Q. And was there discussion then among the Committee members with and in the 
presence of Mr. Lewis with reference to what his responsibilities in the bar were and 
had been?

“A. Yes. We discussed that with him. We talked about the taxes, I think, at every 
meeting in which he was in attendance. He said he acquired the personal property 
through a tax sale for $50.00 * * * *. So he said he owned the personal property. The 
personal property taxes had not been paid * * * since the bar had opened in ’59. The 
sales taxes he said were her responsibility and the income taxes were her responsibility
* * *. We discussed that he was the manager and he declared he had no responsibility 
to see that * * * any of the taxes were paid.

“Q. * * * With reference to gambling, what, discussion, if any, was there with
reference to it?

“A. Lewis said that one of the excuses that the Chief gave for holding up the ap­
proval of his license was that there was a violation pending relative to gambling.”

Commissioner Barto testified concerning the involved Safety Committee meetings: 
“Lewis was recognized and heard repeatedly and allowed to make statements with
reference to his position on any and all matters that were brought up.”

Commissioner Vandenberg talking of the July 24, 1962, meeting of the Safety Com­
mittee and of the fact that Lewis was given, and used, opportunity to speak, said: “Mr. 
Lewis had voluminous documents with him. He referred to these documents frequently 
and I think Mr. Lewis had a long time in which to present his position.”

Commissioner Sevensma testified to talking to Lewis between meetings of the Safety 
Committee: “ I had asked you [Lewis] some time after the January 16th meeting * * * 
I said, ‘This is a very involved matter and has many complications and I would advise 
you, Mr. Lewis, that you should sit down and write in plain Anglo-Saxon words an 
exact and detailed chronology of what had happened in the case, beginning at the be­
ginning and right up through the time when the Safety Committee was considering the 
matter.’ However, you [Lewis] chose not to do so.”

Commissioner Sevensma’s testimony that Lewis’ lawsuit with his client was disclosed 
at the January 16, 1962, meeting and that adjournment was had to allow investigation 
of the case, is agreed to by Lewis. Sevensma testified to what he found from examin­
ing the Circuit Court file.



104c
Appendix C —  Opinion of the U. S. Court of Appeals

Lew is contended that a plea of gu ilty  to possession of 
gam bling equipment at “ 58-60 Ion ia A ve .”  was not proof 
that Barnett’s B ar, located in  the building carrying such 
address, was the site of, or involved in, the “ numbers”  
enterprise. Except for that, neither at any hearing before 
the Safety Committee, at any of the revocation hearings 
or at the tria l of the case at bar did Lew is make substantial 
contest of the underlying truth of the events detailed herein 
and which prompted the Com m ission’s disapproval of him 5

5 (Continued)

“Mr. Lewis indicated on January 16, 1962, that he was then and had been for some 
time the manager of this bar; that he had a management agreement with Patricia 
Ettress and also that he was her attorney.

“So in examining the Circuit Court record, I was particularly interested in seeing 
what allegations were made in reference to what I deemed to be a supposedly conflict 
of interest that he had, where on the one hand he was the manager and on the other 
hand he was the attorney, and then in this Court action he was suing his client and the 
licensee.

“And so I ascertained from Paragraph 2 of the Bill of Complaint that Dr. English had 
entered into a contract in November of 1960, with Patricia Ettress for the purchase of this 
business and that later on, in May of 1961, Mr. Lewis had acquired a one-half interest 
in this contract.

“I further noticed * * * that the defendant, Patricia Ettress, had requested the Liquor 
Control Commission to withhold this transfer for the reason that her debts were greater 
than the amount that she was going to receive for the business and the transfer of the 
license, and I recall that on January 16th Mr. Lewis was asked about that, what mone­
tary consideration was involved, and he stated that the price was $18,000.00, but that 
Patricia Ettress was indebted to him on various items, attorneys fees and other ex­
penses, although I do not recall that he at that time presented an itemized listing of 
these debts, but anyway the statement was made that the amount of her debt to him 
was $18,000.00, and that the one would cancel the other, and immediately I -wondered 
about that. * * *

“I also noticed the matter of unpaid taxes, as related in Paragraph 5; that the Federal 
Taxes had not been paid, and I believe that I learned subsequent to my examination 
of this Bill of Complaint that there were not only income taxes of Patricia Ettress but 
also withholding taxes that had not been paid.

“And then the further examination showed that Mr. Lewis was the manager of this 
business; that he had advanced apparently certain sums of money to pay the debts and 
obligations of the business. And so after reading those items which appeared in Para­
graph 6 and 8, and then also reading Paragraph 9, that the defendant was indebted to 
him, I might say that my suspicion as to the correctness and the ethics of this matter 
were confirmed by what he had told us on January 16th and what appeared in the Bill 
of Complaint, and it seemed to me that he, that is, Mr. Lewis, stood in an untenable 
position.’

Dr. English, present with Lewis at the next to the last meeting on the matter, said 
“1 remember Mr .Vandenberg saying that this woman, this Mrs. Ettress, was losing her 
legacy and he was interested in protecting her legacy. That was o n e  o f  t h e  t h i n g s  that I 
remember * * *. Mr. Vandenberg seemed to be very perturbed. The only thing that 
seemed to worry him was Patricia Ettress losing her legacy.” He also remembered 
Chief Johnson saying to Lewis that he “didn’t have the right temperment * * * to 
run a bar.”



as_ a transferee. W hatever explanations he offered at the 
tria l had already been made to the Safety Committee. He 
has not told what evidence he would, or m ight have offered 
or developed, if  a more form al type of hearing had been 
held.

A ll of the foregoing is not to say that if  denial of Lew is 
as a transferee was the product of racial bias or other dis­
crim inatory motive, he would be without remedy in  a 
Federal Court. I f  he was a victim  of such motivation, 
then indeed he was denied the equal protection of the law 
guaranteed to him by the Fourteenth Amendment.

The D istrict Judge and Lew is rely on our decision in 
dicker v. Michigan Liquor Control Commission, 160 F (2 ) 
96 (C A  6, 1947) and read it as holding that the C ity  Com­
m ission or the Safety Committee was required to hold a 
fu ll dress, adversary hearing before denying approval of 
a transfer to Lew is, dicker did not so hold and we decline 
to do so. We there announced that the M ichigan Liquor 
Control Commission could not, under guise of regulating 
the liquor business, deny its citizens equal protection of the 
law. The case came to us on appeal from a D istrict Court 
order granting a motion to dism iss a complaint which 
inter alia charged that the Com m ission’s action in  suspend­
ing an existing liquor license,

“was intentional and deliberate discrimination against 
her on account of political reasons and was done de­
liberately for the purpose of treating the appellant 
in a different manner than any other owner of a Class 
C liquor license, and was in violation of her rights 
under the Fourteenth Amendment of the United 
States Constitution and Section 1979 of the Revised 
Statutes of the United States, T itle  18 U .S.C .A . 343.”  
(Em phasis supplied.)

The above allegations had to be accepted as true on motion 
to dism iss and we held only that the described conduct 
amounted to denial of equal protection of the law. We took 
occasion to say:

“ The business [selling of liquor] being one which ad­
m ittedly may be dangerous to public health, safety and

105c
Appendix C — ■ Opinion of the U. S. Court of Appeals



morals * * * the scope of the legislature’s power to 
regulate it is  much broader than in the case of its 
regulation of an ordinary law ful business essential 
to the conduct of human a ffa irs.”

and the scope of our holding is made clear by our conclu­
sion that,

“ In  considering the motion to dism iss, we are con­
trolled by the allegations of the complaint. It  spe­
cifically alleges that the Commission acted ‘unlawful­
ly , fraudulently, w illfu lly  and ille g a lly ’ and ‘ intention­
a lly  and deliberately discrim inated against’ her, and 
that its action was w ilfu l, deliberate and intended 
for a political purpose * * * and that the revocation 
of her license ‘was done purposely and with the 
thought of treating this1 p laintiff in  a different manner 
than any other owner of a Class 0  liquor license.’ We 
believe that those allegations are sufficient to state 
a cause of action under the equal protection of the 
Fourteenth Amendment * * *. Whether or not the 
proof * * * w ill sustain such allegations is a different 
question. ’ ’

The case of Hornsby v. Allen, 326 F (2 ) 605 (C A  5, 1964) 
was decided after the D istrict Court’s opinion in this case 
was announced. It  is relied upon by appellee for his con­
tention that fu ll due process had to be afforded before de­
n ial of the transfer. Th is, like our dicker case, involved 
the review of the dism issal on motion of a complaint which 
charged unconstitutional denial of an application for a 
liquor license. It  charged that such denial was “ without 
reason therefor”  and was “ arbitrary, unreasonable, un­
just, capricious and discrim inatory.”  Thus the matter 
was before the F ifth  C ircu it with the foregoing allega­
tions admitted. The Court said that “ the tria l Court must 
entertain the suit and determine the truth of the allega­
tions.”  The cause was remanded for tria l. Th is case, 
however, comes to us after a fu ll and extensive tria l in 
which the reasons for denial were fu lly  exposed. We rec­

106c
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107c
Appendix C —  Opinion of the U. S. Court of Appeals

ognize some observations in the Hornsby case as being at 
odds with our conclusion and to that extent we decline to 
follow it.

2. Denial of Equal Protection.

We come then to the question whether as a matter of 
fact p laintiff Lew is was denied a transfer because he was 
a negro or was otherwise discrim inated against. It  was 
his burden to prove his charges in this regard. The D is­
trict Ju d ge ’s opinion must be read as a factual finding that 
Lew is made out such a case. We are of the opinion that 
such findings were clearly erroneous. Fed. R . C iv. P . 52(a). 
We so hold, applying the rule of United States v. U.S. 
Gypsum Co., 333 U .S. 364, 395, 92 L . Ed . 746 (1947) that,

“ A  finding is ‘clearly erroneous’ when although there 
is  evidence to support it, the reviewing court on the 
entire evidence is left with the definite and firm  con­
viction that a mistake has been committed.”  See also 
Commission v. Duberstein, 363 U .S. 278, 291, 4 L . Ed . 
(2) 1218 (1960).

It  is our belief that the D istrict Judge gained an early but 
erroneous im pression that p laintiff Lew is was the victim  
of racial bias. We are persuaded, however, that his worthy 
zeal to vindicate Le w is’ constitutional right not to be so 
victim ized, led him to inferences that are, on the record of 
this case, unsupportable.

A. Racial bias.

A t an early pretrial conference, the D istrict Judge re­
marked “ this is  a c iv il rights case.”  He remarked, “ there 
is not any question about it  that this license should con­
tinue as a negro operated licensed establishment.”  The 
follow ing excerpts from the D istrict Ju d ge ’s opinion and 
tria l observations portray his conclusion of racial bias



and we set them out with our reasons for considering 
them invalid. (Em phasis is supplied in the quotations.)

1) “ Th is action involves the denial of a * * * of 
the only negro owned-operated C lass C liquor license 
in a city of over 200,000 population.”  (222 P . Supp. 
352)

“ There are only three liquor establishments in  the 
C ity  of Grand Rapids owned by negroes * # (222 P.
Supp. 381)

“ * * * you have only three negro establishments in a 
city  of 200,000. You have an intensity of surveillance 
of this establishment. Now if  this license goes in es­
crow, it could very well be the end of the license. Then 
you have two establishments, colored establishments 
for a city of 200,000. Th is is -one of the things that 
has been predominant and very conspicuous in  this 
case.”  (105a, 117a, 118a)

We immediately note that there is no evidence that any 
other negroes had ever applied for and been denied the 
right to engage in the liquor business. A  transfer from  
one negro licensee to another was once denied, but the 
reason therefor was not explored.

The involved license had long been owned by negroes 
and notwithstanding its earlier revocation by the liquor 
Control Commission (not the Grand Rapids authorities), 
the license was restored to P atric ia  Ettress, the 23 year 
old negro heir of her father. Because the Liquor Control 
Commission did not consider this young lady qualified to 
manage a bar, the restoration was conditioned upon a 
negro, p laintiff Lew is, acting as manager. A  management 
agreement was urged and approved by the Grand Rapids 
Police Department. Of such agreement Lew is said, “ Th is 
is the only case, by the way, where the police department 
approved a management agreement.”  Th is was in  1959, 
prior to the troubled history of the bar under Le w is’ man­
agement.

108c
Appendix C — • Opinion of the U. 8. Court of Appeals



2) “ A ll three of these liquor establishments are 
located in  Commissioner Lam berts’ ward. She wanted 
Barnett’s Bar closed. She intended to eliminate the 
only Class 0  liquor license owned by a negro in  the 
C ity  of Grand Rapids, a city of over 200,000 popula­
tion.’ ’ (222 F . 'Supp. 381)

Such inference is without support in  the evidence. It  is 
not disputed that a ll of the C ity  Commission, including 
M rs. Lam bert’s, were agreeable to and urged transfer of 
the Barnett license to D r. En glish , Le w is’ partner and 
him self a negro.6 M rs. Lam berts comes in for rather 
special condemnation by the D istrict Judge. It  cannot be 
denied that she took her responsibilities seriously and 
perhaps pursued them with vigor unwonted in m unicipal 
officers. It  is a fa ir  inference too that along the route of 
Mr. Le w is’ frequent appearances before the Safety Com­
mittee, she developed a lack of confidence in his ab ility 
to properly manage a bar as a sideline to his law practice. 
The D istrict Judge supported his indictment of Mrs. 
Lam berts by noting his observation of her demeanor on 
the stand. He emphasized “ the very saucy tone of her 
voice,”  and that she had stuck out her tongue, and had 
otherwise employed “ facial grim aces”  to evidence her dis­
pleasure. Certain ly we do not condone such conduct. We 
think it  proper to observe, however, that such conduct hap­
pened during the course of a cross-examination running 
through several days. H er cross-examination by Lew is 
was vigorous, with repetitive and unfounded suggestions 
of derelict conduct by the witness, and covers some 248 
pages of transcript. W hile we may not approve, we easily 
understand the described facial expressions5 with which 
Mrs. Lam berts reacted to her long ordeal —  defensive 
weapons not uncommon to the badgered female. How­
ever, they do not prove nor ju stify  an inference of racial 
bias. It  may be relevant to here mention that the tria l 
of this case consumed some 16 tria l days and generated 
a transcript of 1,895 pages, over half of which is made up

1 09c
Appendix C —  Opinion of the U. S. Court of Appeals

6 Dr. English is not a party to this lawsuit.



of Le w is’ cross-examination of the Chief of Police and 
the members of the C ity  Commission. P re tria l hearings 
are reported in 333 pages of transcript, and there is a 
supplemental transcript of 201 pages. The D istrict Judge 
established a segregated record containing some of the 
defendants’ evidence of reasons why it  was considered in­
appropriate to approve Lew is as a transferee. The D is­
trict Judge was of the view that such evidence was imma­
terial except to the extent that the thinking of the Com­
m issioners had been communicated to Lew is. The D istrict 
Judge would not receive evidence offered to prove that 
Lew is knew of the numbers gam bling going on in B a r­
nett’s B ar. He so ruled because it  was not shown that 
those who claimed to know of Le w is’ knowledge had told 
the police about it, and no showing was made that the 
Commissioners had told Lew is that they had evidence that 
he knew of the gambling.

3) “ Mr. Lew is, B arnett’s B ar, and a ll who were 
associated with it, were made to appear to represent 
a ll that was undesirable in taverns and licensed liquor 
establishments, and especially, with varying inflec­
tions of overtone, a Negro bar.” (222 F . Supp. 382)

“ It  is important to bear in mind that insofar as the 
Negro population of the C ity  of Brand Rapids is con­
cerned it comprises about 7% of the population. In- 
Commissioner Lambert’s and Jamo’s political calcu­
lation this was a negligible force which could be dis­
regarded. Their activities in  the case here at issue 
were before Birm ingham .”  (222 F . Supp. 382)

“ There existed in  fact a conspiracy on the part of 
Chief Johnson and Commissioners Lam berts, Sevens- 
ma and Jam o to defeat and deny the transfer and u lti­
m ately to revoke the only Negro-owned Class C liquor 
license in  a city of over 200,000 population. (222 F . 
Supp. 382).

110c
Appendix C — - Opinion of the U. S. Court of Appeals

The foregoing subjective inferences1 are invalid  and 
without evidentiary support. There is no evidence that the



Negro population of Grand Rapids was desirous of in ­
creasing its share of the c ity ’s liquor establishments. In ­
vidious discrim ination cannot he postulated whenever or 
wherever a city exists in which the ratio of negro-operated 
bars to the total number of such businesses is less than 
the Negro percentage of population. The assertion that 
Commissioners Lam berts and Jam o politically calculated 
that this (the ratio of negro-operated bars to the total 
Negro population) “ was a negligible force which could be 
disregarded”  is entirely gratuitus. We find no evidence 
from  which to infer the “ political calculation”  recited; 
M rs. Lam berts became acquainted with Lew is through 
their being coworkers in the Dem ocratic Party. Commis­
sioner Jam o had received a commendation from the N A A - 
C P  for his testimony before the state legislature in 1960, 
then serving as Chairm an of the Kent County C iv il R ights 
Committee of the Republican Party.

4) “ Chief Johnson was determined to keep the only 
negro-owned C lass C liquor establishment closed.”  
(222 F . Supp. 359)

“ Chief Johnson wanted to close B arnett’s B ar, the 
lone negro-owned Class C. liquor license in Grand 
R ap id s.”  (222 F . Supp. 375)

A s Chief of the Grand Rapids Police Department, John­
son had approved the reopening of B arnett’s B ar in 1959 
after a previous bad record. The approval was signed by 
Chief Johnson upon condition that Lew is, a Negro, take 
over its  management. It  is a fa ir  inference that Chief 
Johnson’s estimate of Mr. Le w is’ qualifications as a bar 
manager deteriorated as the bar ’s trouble mounted there­
after. A s in the case of Mrs. Lam berts, the D istrict Judge 
supports his charge of malice against the Chief by refer­
ence to his witness stand demeanor. “ He testified with 
great difficulty; he was quickly exasperated and clipped 
off his answers. When extensive questions were asked by 
Mr. Lew is, the Chief grew redfaced and tight lipped; the 
blood vessels in  his head bulged out.”  222 F . Supp. 373.

111c
Appendix C — • Opinion of the U. S. Court of Appeals



The Chief may have remembered Lew is calling him a 
lia r  at one of the Safety Committee meetings. Le w is’ cross- 
examination of the Chief covers 133 pages of transcript; it 
contains unfounded charges of official misconduct, as well 
as unsupported reflections upon the C h ie f’s personal life. 
Perhaps the Chief should have better controlled his emo­
tions, but his very natural responses under attack do not 
convict him of conspiracy, malice, or racial bias.

5) “ Dred Scott Madison [a negro police officer] 
claimed that Chief Johnson practiced discrim ination 
and cited his own demotion as evidence of this dis­
crim ination.”  (222 F . Supp. 370)

Th is officer testified: “ I  couldn’t believe that he [Chief 
Johnson] was biased against me him self.”  He did not cite 
his own demotion as evidence of racial discrim ination by 
Chief Johnson. He did state that negro officers were con­
stantly “ at the bottom of the lis t ”  on efficiency ratings. 
However, Chief Johnson did not control the efficiency rat­
ings and in  a ll events the official and not questioned rec­
ords of the efficiency ratings ranked officer Madison him­
self as number 21 out of 62, fa r from  the bottom of the 
list. The Chief gave the reason for the demotion of Madison 
and its va lid ity  was sustained by the C iv il Service Board. 
It  was shown that the negro officer, Madison, was, upon the 
recommendation of Chief Johnson, promoted to the rank 
of Sergeant, bypassing several white officers with greater 
seniority.

6) “ The court’s discussion of gam bling need not be 
repeated here. The actions of the city police in this 
regard constituted a discriminatory enforcement of 
the gambling laws against a licensed liquor establish­
ment.”  (222 F . 'Supp. 382)

The investigation of gam bling at B arnett’s B a r was the 
product of the voluntary action of the negro officer M adi­
son, without previous knowledge of or request from  the 
police department. D iscovering or suspecting the gambl­
ing, he reported i t ; this was followed by a customary police

1 12c
Appendix C — - Opinion of the U. S. Court of Appeals



113c
Appendix C — - Opinion of the U. 8. Court of Appeals

practice of bringing in an officer from  another city, and 
the officer selected was a negro. A fte r several days of sur­
veillance, he reported that the “ numbers1 racket”  was go­
ing on at B arnett’s B a r and swore to a complaint that 
named individuals who were carrying on such an enter­
prise. We cannot jo in  the D istrict Ju d ge ’s tria l char­
acterization of this as “ an intensity of surveillance of 
this establishment.”  Some of these charges pended fo r 
over a year, Lew is appearing for a ll defendants; they were 
concluded by a plea of gu ilty  by one of the accused to pos­
session of gam bling paraphernalia at “ 58-60 Ionia A ve .”  
T h is is  the address of the building where the bar is located, 
and was used in official papers as the address of B arnett’s 
B ar. The D istrict Judge infers that the bar was not in ­
volved, but the plea of gu ilty  does not exclude it. The 
Liq uo r Control Com m ission’s file contains a report of 
“ Item s confiscated from  58-60 Ionia Ave. during the Num­
bers R a id  of 8-5-60.”  The report mentions torn numbers 
slips and adding machine tapes —  indicia of the “ num­
bers racket”  —  found on the main floor of B arnett’s B ar, 
in  its office wastebasket, and in  the trash barrel at the rear 
of Barnett’s. Numerous other items of relevant parapher­
nalia were reported as seized at 58-60 Ionia, without speci­
fication as to whether they were in B arnett’s B ar. “ Five  
Green Sheets [fam iliar to the numbers game] for the week 
ending 8-4-60 ’ ’ with other m aterial were reported as taken 
from  the office located in the “ basement of 58-60 Ionia,
S.W . under Barnett B a r.”  We do not understand how the 
bar was excluded from involvement. The D istrict Ju d ge ’s 
im pression of “ undue surveillance”  may have arisen from 
lack of evidence of like surveillance or raid  of any other 
bar. There was, however, no evidence that any other bar 
had been suspected as a base of operations for the “ num­
bers racket” . Both the Chief and officer Madison told of 
raids on gam bling establishments —  gam ing rooms —  and 
the arrest of their white patrons.

We conclude consideration of racial bias by mentioning 
that the original complaint filed in  this cause on November 
19, 1962, made no such claim. It  was brought into the case 
by an amended complaint filed on Jan u ary 2, 1963.



Appendix C — Opinion of the U. S. Court of Appeals 
B. Other discrimination.

The D istrict Judge inferred malice and conspiracy from  
other conduct which he does not specifically relate to racial 
bias. W ith repetitive vigor he indicts the entire C ity  
Commission of Grand Rapids, with the exception of the 
Mayor.7 Although the evidence does not disclose their con­
tent, the news media, radio, T V  and newspapers are al­
leged to have carried stories so extensively “ and it was the 
purpose of Chief Johnson and Commissioner Lam bert to 
cause the result —  that B arnett’s B ar became synony­
mous with a ll that is undesirable in liquor establishments 
and especially a negro-owned-operated liquor establish­
ment. Barnett’s B ar and Alphonse Lew is as a consequence 
are unpopular in the community.” (Em phasis supplied.) 
(222 F . Supp. 383) Without relevant record evidence, 
we are unable to probe the community mind of Grand 
Rapids. The D istrict Judge hypothesizes that because of 
what happened, if  a popular vote were held on the question 
“ Sh all B arnett’s B ar license be revoked?”  the vote would 
be overwhelmingly in the affirmative. (222 F . Supp. 383).

Mrs. Lam berts was found to be the chief offender, with 
other members of the Commission succumbing to her per­
suasion. The D istrict Judge concluded that:

1) “ H er [Lam berts’] rise to Chairm an of the Safety 
Committee and President of the C ity  Commission, 
and the evident voting block which she had acquired 
in the City Commission gave her substantial power 
which she wielded arb itrarily, capriciously, and un­
reasonably in this instant case.”  (222 F . Supp. 381)

Mrs. Lam berts was not Chairm an of the Safety Com­
mittee at the time of events here involved. I f  there is any 
support for the assertion that Mrs. Lam berts “ had ac­
quired”  a voting block which “ gave her * * * power which 
she wielded a rb itra rily ,”  etc., it  must be found in the 
fo llow ing:

114c

7 The Mayor was not present at any of the meetings of the Safety Committee or the 
Commission at which the transfer was considered and voted on.



“ Q. * * *isn,t it  true that there is a faction * # *
of which Mrs. Lam berts is a part which controls at 
least four votes * # * ?
“A. W ell, sometimes I  think so, sometimes I  

don’t .”

In  quoting from  the foregoing (222 F . Supp. 371) the D is­
trict Judge assumed that the question was whether Mrs. 
Lam berts controlled the faction, not whether she was a 
part of a faction. The last part of the answer, “ sometimes 
I  don’t ”  is omitted. The same examination went on to in ­
quire whether the Commissioners from Mrs. Lam berts’ 
ward and another ward did not always vote on the same 
side. The answer was, “ I  wouldn’t say so.”  We find with­
out support the D istrict Ju d ge ’s further inference that 
the C ity  Commission “ was under her [M rs. Lam berts’] 
dominating control insofar as this transaction was con­
cerned.”

2) “ The Court is also aware of one time * * * when 
Commissioner Lam berts chose to demonstrate her 
omniscient attitude by expostulating that a certain 
question ‘was not worthy of answer.’ ”  (222 F . Supp. 
375)

The question which provoked the quoted answer is not 
set out. It  came during p laintiff Le w is’ cross-examina­
tion of Mrs. Lam berts. It  was “ In  other words, if  you 
want a liquor license don’t say anything bad about the 
police, is that r ig h t!”

3) “ When she [M rs. Lam berts] phoned the L C C  
* * * she told them there was going to he a grand 
jury investigation of this transaction.”  (222 F . Supp. 
381)

A  memorandum in the Liquor Control Commission rec­
ords, unidentified as to authorship, referred to a call from 
Mrs. Lam berts (this was in October, 1962, long after de­
n ial of the transfer) wherein she allegedly stated “ that 
the county prosecutor is thinking about asking fo r a grand

115c
Appendix C — • Opinion of the U. 8. Court of Appeals



ju ry  investigation * * The prosecuting attorney testi­
fied: that he had not told Mrs. Lam berts that he was going 
to call a grand ju ry  to investigate the Liquor Control 
Commission, but said that he had discussed with the Chief 
of Police the possib ility of petitioning for a grand ju ry  
“ to investigate a ll of B arnett’s B ar affairs, not Mr. 
Lew is or his connection with it .”  He never did so, how­
ever. Mrs. Lam berts testified that she had heard of this1 
talk from  Chief Johnson.

4) “ When Commissioner Sevensma on cross-exam­
ination was informed of the facts in  the alleged 
gam bling cases, he stated that if  he had known these 
facts, h is judgment about the case would have been 
different.”  (222 F . 'Supp. 373)

Commissioner Sevensma did not so testify. Mr. Le w is’ 
questions contained Le w is’ hypothesis of facts which he 
contended would have failed to establish that there was 
gam bling in B arnett’s B ar. Asked if  he knew such to be 
the facts, would his judgment have been different, Sevens­
ma answered “ I  would say yes, perhaps it  would have been 
different * * *. It  might have been different.”

We find other factual inferences by the D istrict Judge 
which, in  our view, are without substantial evidentiary 
support. We forego, however, further extension of the 
subject. A ll who questioned Mr. Le w is’ conduct were ac­
cused as conspirators. A n  investigator for the L C C  who 
was dissatisfied with Le w is’ cooperation was included. 
“ Mr. Arens [L C C  investigator for the State] knew, under­
stood and participated in Chief Johnson’s programme of 
delay and denial.” 8 (222 F . Supp. 362) A ll of the con­
demned C ity  Commissioners were responsible, reputable 
citizens, elected and re-elected by the people of Grand 
Rapids. Mrs. Lam berts, the most seriously accused, had 
taken the trouble to consult with a D r. Cowles, a negro

8 The Internal Revenue Service is accused in Lewis’ complaint which alleges “ * * * 
despite said sale [by which Lewis obtained title to the bar fixtures for $50.00] said 
Internal Revenue Service has failed, refused and neglected to remove a so-called ‘stop’ 
request filed with the Michigan Liquor Control Commission.”

116c
Appendix C —  Opinion of the U. S. Court of Appeals



member of the c ity ’s Human Relations’ Committee, upon 
the subject of Mr. Le w is’ application for transfer. De­
velopment of the subject, however, was foreclosed by its 
exclusion as hearsay.

We believe that Mr. Le w is’ record of management of 
B arnett’s B a r and his handling of h is client’s affars was 
such that it  cannot be said that denial of the transfer was 
arb itrary, capricious or discrim inatory. Commissioner 
Sevensma, a graduate of the U niversity of M ichigan and 
a practicing law yer of upwards of twenty years, when 
pressed by Lew is to tell why he questioned Le w is’ handling 
of his client’s affairs, answered “ there was definitely a 
conflict of interest * * * you were the -manager, you were 
the lawyer, you were the creditor, you sued your own client 
and the licensee.”

Commissioner John Vandenberg, a graduate of Calvin  
College at Grand Rapids and now a professor of economics 
there, an M .A. and Ph.D  graduate of and now a part time 
teacher at the U niversity of M ichigan, was elected in 1960, 
and was a member of the Safety Committee which recom­
mended denial of transfer. He stated,

“ I  had no bias toward Mr. Lew is and I  had no bias 
toward anyone. Th is is against my own personal 
philosophical and religions commitments; this was 
against my commitment to the C ity  which I  made 
when I  was sworn in  as a C ity  Commissioner to pro­
tect the rights of a ll the citizens of the Community 
# # #

1 17c
Appendix C —  Opinion of the U. 8. Court of Appeals

He testified that Mr. Lew is was given and employed 
ample opportunity to present his position to the Safety 
Committee. He disclosed the reasons which prompted 
his vote to deny the transfer as fo llow s:

“ I  was astonished to have before me a man who, one, 
first was legal counsel to the licensee, Mrs. B e ll,9 
two, who then became manager of the bar, which she 
had acquired by virtue of the death of her father

9 Patricia Ettress had become Mrs. Bell during the time involved.



* * *. Three, who was in court on the same ease. Four, 
who was tryin g  to acquire this and there would be no 
payment for Mrs. Bell. I  cannot conceive of a situa­
tion where one person can be in so many roles which 
are obviously in  conflict. # *
“ Fo r someone to be in management position and in 
the period of approxim ately 18 months’ to see an asset 
which is alleged to have been worth from  $18,000 to 
$25,000 turn out to be worth nothing, leads me to sus­
pect that the person who is m anaging that bar is in ­
competent, or dishonest, or he is more interested in 
him self than he is in his client. Th is was the chief 
reason why I  could not see transferring this particu­
la r license to Mr. Lew is.
“ In  addition to this, we have other matters such as 
the infraction of the law ; we have the recommenda­
tion of the Chief of P o lice ; we have the fact that 
taxes were not paid. A ll these together could only 
convince me that this would not be for the welfare 
of the C ity  to make this transfer. * * *
“ It  was my opinion that Mr. Lew is, because of these 
many roles, the law infractions, and the recommenda­
tion of the Chief, the failure to pay taxes and being 
in control, as he repeatedly said to us he had the 
power of attorney, he could hire, fire, he ran the bar 
and having done such a poor job, in  the background of 
a ll these roles, I, in  good conscience, could not vote 
fo r that transfer.”

Mr. Vandenberg was not sure as to how much of his rea­
soning was explicitly addressed to Mr. Lew is although he 
recalled g iving some of them to him.10 He questioned the

118c
Appendix C — * Opinion of the U. 8. Court of Appeals

10 There can be little question, though, that these matters were before the City 
Commission on July 31, 1962, when the transfer application was denied. It was so 
testified by Commissioners Barto, Jamo, Sevensma and Vandenberg. There was no 
attempt to refute any of this testimony except for the District Court’s observation that 
because all the Commissioners agreed, all of their testimony was questionable. 222 F. 
Supp. 372



policy of public announcement of a ll of such reasons. He 
said,

“ Mr. Lew is is a public figure. He is  an attorney and 
as such I  think he has1 a perfect right to go about his 
business as a lawyer. I  think that Mr. Lew is would 
have been damaged had we expounded in great detail 
on this particular request, g iving  the reasons why we 
did not transfer his license. I  have given those by 
request in  this courtroom. I  have never given these 
publicly any other place.”

To sustain a finding that denial of Le w is’ application 
was the product o f racial bias or other discrim inatory mo­
tive would require us to leave unreversed a holding that 
Commissioner Vandenberg’s above recital was but a per­
jurious mask11 to hide his real and vicious motives. We 
cannot do so. Neither can we discern any basis for the 
enormous im m orality and malfeasance attributed to the 
other Commissioners by the D istrict Court. These others, 
of varying professions or means of livelihood11 12 were of 
equally responsible standing and there was nothing in their 
backgrounds to forecast their capacity for the vicious con­
duct of which they were convicted. It  is significant indeed 
that p laintiff Lew is does not deny the factual high points 
of his management of B arnett’s B a r and his client’s a f­
fa irs which, justifiab ly in  our view, led an entire C ity  
Commission to find him unsuited to manage or become 
the licensee of Barnett’s Bar. Even though this history

119c
Appendix C —  Opinion of the U. S. Court of Appeals

11 The District Judge characterized the reasons given by Vandenberg and the other 
Commissioners as “a facade for the reasons behind the action of the Safety Committee 
and the personal and racial discrimination of Chief Johnson.” (222 F. Supp. 383)

12 Commissioner Lamberts is the wife of a neurological surgeon of Grand Rapids and 
herself a graduate of the University of Michigan School of Nursing; Commissioner 
Barto is a mortician, at one time a liquor licensee and had been a member of the Com­
mission for 15 years; Commissioner Sypniewski had been a member of the Commission 
since 1960 and was Sales Manager of a business concern of statewide coverage; 
Commissioner Jamo owns his own business involving the selling of vacuum cleaners and 
sewing machines, a 35 year old economics graduate of the University of Michigan, presi­
dent of the local chapter of the alumni of that school, and as stated, the recipient of 
a commendation by the NAACP for his work in its behalf; Commissioner Sevensma was 
shown to have been an active worker for the election of a Negro, Judge Letts, who was 
elected a judge of the Municipal Court over opposing white candidates.



may have caused some personal dislike of Mr. Lew is that, 
by itself, does not add up to a denial of equal protection 
of the law. That no Commissioner had any beginning op­
position to Mr. Lew is, racial or otherwise, is shown by the 
follow ing excerpt from  his cross-exam ination:

“ Q. And looking back at it  now, even as of this 
date, do you assert there was any antagonism toward 
you by any of the members of that committee as of 
that date, Janu ary 16, 1962?

“ A . N o.”

We make clear just what we decide.
1. P la in tiff Lew is was not, under Glicker v. Liquor Con­

trol Commission, 160 F (2 ) 96 (C A  6,1947) entitled to a fu ll 
dress, tria l type, hearing on his application for transfer, 
he was not deprived of any federally granted constitu­
tional right by the manner in  which such application was 
considered and approval withheld.

2. P la in tiff Lew is was, under Glicker and other au­
thorities, entitled to the “ equal protection of the law ” 
guaranteed by the Fourteenth Amendment.

3. I f  denial of Le w is’ application fo r transfer was 
the product of racial bias or other discrim inatory motive, 
such denial would he a deprivation of the equal protection 
of the law.

4. The D istrict Ju d ge ’s findings as to racial bias and 
discrim inatory motive on the part of the Grand Rapids 
C ity  Commission are clearly erroneous, w ithin the mean­
ing of Rule 52 Fed. R . C iv. P . as the term “ clearly er­
roneous”  has been articulated by United States v. U. S. 
Gypsum, 333 U .S. 364, 375, 92 L . Ed . 746, 766 (1948).

5. We do not reach the question of whether Lew is or 
the trustee in  bankruptcy were denied due process or equal 
protection of the law by the revocation of the license for 
B arnett’s B ar. The appeal does not present such question.

The judgment of the D istrict Court as it conflicts with 
this opinion is reversed; the cause is remanded to the 
D istrict Court with direction to vacate its order setting 
aside the Ju ly  31, 1962, resolution of the Grand Rapids

1 20c
Appendix C —  Opinion of the U. 8. Court of Appeals



C ity  Commission denying approval of the Lew is applica­
tion for transfer and with direction to dissolve the manda­
tory injunctive order requiring the C ity  and its Chief of 
Police to approve a transfer to Lew is of the involved 
license.

The judgment of the D istrict Court is, to the foregoing 
extent, reversed.

E d w a r d s , Circu it Judge, concurring. Fo r the reasons 
stated in  the five numbered paragraphs at the conclusion 
of the court’s opinion, I  concur in  the decision set forth 
thereafter.

121c
Appendix C —-Judgment of the TJ. 8. Court of Appeals

JU D G M EN T
(F ile d  February 16, 1966) 

No. 15669

U N IT E D  S T A T E S  C O U R T O F A P P E A L S  
F O R  T H E  S IX T H  C IR C U IT

A lphonse Lewis, J r.,
Plaintiff-Appellee,

vs.

Citt op Grand Rapids, Michigan, et al., 
Defendants-Appellants.

B E F O R E : O ’S U L L IV A N  and E D W A R D S , C ircu it 
Judges, and C E C IL , Senior C ircu it Judge.

A P P E A L  from  the United States D istrict Court for the 
W estern D istrict of M ichigan.



T H IS  C A U S E  came on to be heard on the record from  
the United States D istrict Court fo r the W estern D istrict 
of M ichigan and was- argued by counsel.

ON C O N S ID E R A T IO N  W H E R E O F , It  is now here 
ordered and adjudged by this Court that the judgment of 
the said D istrict Court in  this cause be and the same is 
hereby reversed and the cause remanded for further pro­
ceedings in conform ity with the opinion.

It  is further ordered that Defendants-Appellants re­
cover from  Plaintiff-Appellee the costs on appeal, as item­
ized below, and that execution therefor issue out of said 
D istrict Court.

1 22c
Appendix C — Judgment of the U. S. Court of Appeals

Entered by order of the Court.

C a rl W. Reuss 
Clerk

Issued as M andate: A p ril 18, 1966 
C O S T S : To be recovered by Appellants

F ilin g  fe e ...............$25.00
P rin tin g  $ ____

'T ota l $25 .00



123c
Appendix C —  Order Denying Petition for Rehearing

ORDER DENYING PETITION FOR REHEARING
(F ile d  A p ril 7, 1966)

No. 15669

U N IT E D  S T A T E S  C O U R T O F A P P E A L S  
F O R  T H E  S IX T H  C IR C U IT

A lphonse Lewis, Jr.,
Plaintiff-Appellee,

vs.

City o f  Grand Rapids, Michigan, et ah , 
Defendants-Appellants.

B E F O R E : O ’S U L L IV A N  and E D W A R D S , C ircu it 
Judges, and C E C IL , Senior C ircu it Judge.

T H IS  C A U S E  is before the Court upon the petition of 
the plaintiff-appellee for rehearing, and upon due con­
sideration thereof,

IT  IS  O R D E R E D  that the said petition fo r rehearing 
be, and it is, hereby denied.

Entered by order of the Court.

C a rl W . Reuss 
Clerk





ALPHONSE LEWIS, JR.
510 McKAY TOWER 

GRAND RAPIDS, MICH. 49502

L a w  O f f i c e s

ALPHONSE LEWIS, JR.
418 HOUSEMAN BLDG. 

GRAND RAPIDS. MICHIGAN 49502 
Telephone GLendale 6-1464

July 18, 1966

Hr. Jack Greenberg 
AUtorney at Law 
10 Columbus Circle 
New York, New York 10019

Dear Jack:

Please find enclosed a copy of the Petition which 
I prepared and filed on or about July 13, 1966. If you 
or any of your staff have time to look same over and have 
any suggestions I will come to New York to discuss same 
with you and if necessarv there may be some procedure 
by which same can be amended to take care of any suggested 
improvements,

Enel.