Jenkins v. City of Pensacola Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    No.

In  the

iutprm e GJnurt of tire Mnttpft States
Octobee Teem, 1980

ELM ER JENKINS, et a l,

v.
Petitioners,

CITY OP PENSACOLA, et a l,

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

FOR THE FIFTH CIRCUIT

Kent Speiggs
324 West College Avenue 
Tallahassee, Florida 32301 
Telephone: 904-224-8701

J . U. Blacksher
Counsel of Record 
Larry Menepee 
P. 0. Box 1051 
Mobile, Alabama 36633 
Telephone: 205-433-2000

W. E dward Stile
400 Commerce Center 
2027 1st Avenue North 
Birmingham, Alabama 35203 
Telephone: 205-322-6631

J ack Greenberg
J ames M. Nabrit, I I I
Napoleon B. W illiams, J r. 

Suite 2030 
10 Columbus Circle 
New York, N.Y. 10019 
Telephone: 212-586-8397

Attorneys for Petitioners
E lmer J enkins, et al.

May 1981



QUESTIONS PRESENTED

1. Whether in the Remedy Phase of a Vote 
Dilution Case, a District Court is Required to Give 
Deference to a Final Redistricting Plan Adopted by a 
Defendant Governmental Body Where the Plan Was Con­
ducted without a Referendum and the Body's Authority 
under Local Law to Adopt the Plan is Dependent upon 
the Plan’s Approval in a Referendum?

2. Whether a Remedial Redistricting Plan 
Adopted and Proposed by a Defendant Governmental Body 
is Court-Ordered, and Therefore Not Entitled to Def­
erence, When the Local Governmental Body Has Decreed 
That the Plan is Conditional and To Be Made Effective 
Only As Ordered by the District Court?



TABLE OF CONTENTS
Questions Presented .....................   i
List of Parties ............................ iv
Table of Authorities ....................   v

Opinions Below .............   viii
Jurisdiction of the Court ..................  viii
Statutes Involved .................    ix
Statement of the Case .............. ........ 1

How the Federal Questions were Raised Below. 7

Reasons Why the Writ Should Be Granted ..... 8

I. THE ISSUE OF THE PROPER CRITERIA 
FOR DETERMINING WHEN A REMEDIAL 
APPORTIONMENT PLAN IS A LEGIS­
LATIVE PLAN OR A COURT-ORDERED 
PLAN IS AN IMPORTANT QUESTION
OF FEDERAL LAW WHICH SHOULD BE
SETTLED BY THIS COURT ............  12

A. The District Court's Charac­
terization of the Plan ...... 15

B. A Local Body's Authority
to Apportion Itself ......... 16

C. Determining If the Local
Body Acted Legislatively .... 20

D. The Binding Character of
the Legislative Action .....  21

II. THIS COURT SHOULD SETTLE THE 
ISSUE OF THE TYPE OF REMEDY 
WHICH A DISTRICT SHOULD 
GRANT IN A VOTE DILUTION
CASE ........     25

Conclusion ................................. on



APPENDIX

Opinion of Court of Appeals ...........  1a

Judgment of the Court of Appeals ......  21a

Opinion of the District Court .........  23a

Judgment of the District Court,
July 10, 1978 ..........................  27a

Judgment of the District Court,
January 23, 1979 ....................... 29a

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IV-

ELMER JENKINS, WOODROW CUSHION, HENRY BURRELL, 
SAMUEL HORTON, AND BRADLEY SEABROOK,

Petitioners

v.

CITY OF PENSACOLA; LOUIS L. BROWN, HAROLD E. 
ROSE, ROBERT BROCKET!, WILLIAM NORTHROP,
JOHN E„ FRENKEL, BILL MILLER, CECIL E. JONES, 
ALBERT KLEIN, JR., V. PAUL BRUNO, AND HOLLICE 
T. WILLIAMS, INDIVIDUALLY AND IN THEIR 
OFFICIAL CAPACITIES AS MEMBERS OF THE 
PENSACOLA CITY COUNCIL; JAY THORNTON, 
INDIVIDUALLY AND IN HIS CAPACITY AS CLERK OF 
PENSACOLA; JOE OLDMIXON, INDIVIDUALLY AND IN 
HIS CAPACITY AS SUPERVISOR OF THE ELECTION 
FOR ESCAMBIA COUNTY



-V-

TABLE OF AUTHORITIES

Cases:
PAGE

Bolden v. City of Mobile, Alabama
4446 U.S. 55 (1980) .......... 9

Chapman v. Meier
420 U.S. 1 (1975) .......... 26

Connor v. Williams
404 U.S. 549 (1962) .......... 26

East Carroll School Bd. v.
Marshall, 424 U.S. 636 
(1976) ..................... 10,1 1 ,1 2 , 

13,-14,15, 
19,2 1 ,2 2

Ely v. Klahr
403 U.S. 108 (1971 ) ............ 28

McDaniel v. Sanchez
615 F.2d 1023 (5th Cir. 1980) 
cert, granted 49 U.S.L.W.
3270, October 14, 1980 ..... 11,15

McMillan v. Escambia County
638 F.2d 1239 (5th Cir. 1981).. 7

Mahan v. Howell
410 U.S. 315 (1973) .......... 26

Marshall v. Edwards
582 F.2d 927 (5th Cir. 1978)... 13,14,20,

24

Village of Arlington Heights v.
Metropolitan Housing Develop­
ment Corp.
U.S. 252 (1977) ..... ..... 99



TABLE OF AUTHORITIES

PAGE

Washington v. Davis
426 U.S. 229 (1976)  .... . . . . 9

Whitcomb v. Chavis
403 U.S. 124 (1971) ..........  9

White v. Regester
412 U.S. 755 ( 1973)  ---..... 9

Wise v. Lipscomb
437 U.S. 535 (1978) .......... 3,10,11,

13,14,15, 
16,17,18, 
19 ,2 0 ,2 1 , 
22,24,26 
27,28,29

Constitution of the United States
Fourteenth Amendment ....  1
Fifteenth Amendment ....  1



TABLE OF AUTHORITIES

Statutes:
Federal

PAGE

Civil Rights Aet of 1957
42 U.S.C. §1971 ..........  1

Civil Rights Act of 1871
42 U.S.C. §1983 ..........  1

Voting Rights Act of 1965, as 
amended in 1975
42 U.S.C. §1973 ..........  1

State

Florida Statutes §166.021 ..........  4

Florida Statutes §166.031 ..........  4

City of Pensacola

Pensacola's Ordinance 3-79,
Section 3 ..................... 4,5,23



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OPINIONS BELOW
The district court's order invalidating defen­

dant City of Pensacola's at-large electoral scheme was 
rendered on the 10th day of July, 1978. It is not 
reported.

The judgment of the district court approving the 
remedial electoral plan submitted by the defendant 
City of Pensacola was rendered on the 27th day of 
December, 1978 and on the 23rd day of January, 1979. 
They are not reported.

The opinion of the Court of Appeals for the Fifth 
Circuit affirming the district court's opinion on the 
merits was rendered on the 19th day of February, 1981 
and is reported at 638 F.2d 1239.

The opinion of the Fifth Circuit affirming the 
district court's judgment on the remedy phase of the 
lawsuit was rendered on the 19th day of February, 1981 
and is reported at 638 F.2d 1249.

JURISDICTION
The judgment of the Court of Appeals sought to be 

reviewed, was entered on the 19th day of February, 
1981. This Court has jurisdiction of the petition for 
a writ of certiorari pursuant to the terms of 28 
U.S.C. 1254(1).



■IX-

STATUTES, ETC., INVOLVED

(a) . The Constitution of the United States, 
Amendment 14, Section:

. . N o  state shall . . . deny to any
person within its jurisdiction the equal protection of 
the laws."

(b) . The Constitution of the United States, 
Amendment 15, Section 1:

"The right of citizens of the United States 
to vote shall not be denied or abridged by the United 
States or by any state on account of race, color, or 
previous condition of servitude."

(c) . Voting Rights Act of 1965, §2, 42 U.S.C. 
§1973:

"No voting qualification or prerequisite to 
voting, or standard, practice, or procedure shall be 
imposed or applied by any state or political subdivi­
sion to deny or abridge the right of any citizen of the 
United States to vote on account of race or color."

(d) . Florida Statutes §166.021. Powers

(4) The provisions of this section shall 
be so construed as to secure for municipalities the 
broad exercise of home rule powers granted by the 
Constitution . . . .  However, nothing in this act 
shall be construed to permit any changes in a special 
law or municipal charter which affect the exercise of 
extraterritorial powers or which affect an area which 
includes land without a municipality or any changes in 
a special law or municipal charter which affect the 
creation or existence of a municipality, the terms of 
elected officers and the manner of their election, the 
distribution of powers among elected officers, mat­
ters prescribed by the referendum of the electors as 
provided in §166.0 3 1."



-X-

(e) Florida Statutes §166.031 Charter Amend­
ments

(1) The governing body of a municipality 
may, by ordinance, or the electors of a municipality 
may, by petition signed by ten percent (10%) of the 
registered electors, submit to the electors of said 
municipality a proposed amendment to its charter, 
which amendment may be to any part or to all of said 
charter except that part describing the boundaries of 
such municipality. The governing body of the munic­
ipality shall place the proposed amendment contained 
in the ordinance or petition to a vote of the electors 
at the next general election held within the munic­
ipality or at a special election called for such 
purpose.

(2) Upon adoption of an amendment to the 
charter of a municipality by a majority of the 
electors voting in a referendum upon such amendment, 
the governing body of said municipality shall have the 
amendment incorporated into the charter and shall file 
the revised charter with the department of state, at 
which time the revised charter shall take effect.

(f) Ordinance No. 3-79 of the City of Pensacola

SECTION 1. That Article III, Section 28, of 
the Charter of the City of Pensacola, Florida, en­
titled "Council and Mayor, Creation and Composition of 
Council", Subsection (1 ), is hereby amended to read as 
follows:

§ 28. Creation and Composition of 
Council.

(1) Establishment of City Council 
and Qualifications of Members

(a) Except as otherwise pro­
vided in this Charter all powers of 
the City shall be vested in a Council 
of ten 1 (1) members. Seven (7) of



-XI-

these members shall be elected from 
seven (7) different constitution­
ally acceptable single-member dis­
tricts as established by law. The 
initial seven (7) City Council dis­
tricts shall be the same as those 
previously submitted to the United 
States District Court for the North­
ern District of Florida in the case 
of Jenkins et al. v. City of Pensa­
cola, et al., PCA No. 77-0433- A 
formal hearing was held concerning 
the constitutionality of this plan 
on November 21, 1978, and the plan 
received approval of the District 
Court as indicated by its Memorandum 
Decision of December 27, 1978. Any 
and all future changes to said plan 
shall be made pursuant to law. Each 
candidate shall be a resident qual­
ified voter within the district from 
which he seeks to be elected. The 
remaining three (3) members of the 
City Council shall be elected at 
large throughout the City. Each 
candidate for one of the three (3) 
at-large seats shall be a resident 
qualified voter of the City of Pen­
sacola, Florida.



STATEMENT OF THE CASE

On March 18, 1977, plaintiffs, black voters of 
the City of Pensacola filed a class action alleging 
that the at-large system for electing members to the 
City Council of defendant City of Pensacola violated 
rights of plaintiffs established under the First, 
Thirteenth, Fourteenth and Fifteenth Amendments to 
the Constitution of the United States, and under the 
Civil Rights Act of 1957, 42 U.S.C. § 1971(a)(1), the 
Voting Rights Act of 1965, as amended in 1975, 42 
U.S.C. §1973, and the Civil Rights Act of 1871, 42 
U.S.C. § 1983.

Plaintiffs specifically alleged that the at- 
large system was intended and had the effect of 
diluting the voting strength of the black population, 
which constitutes one-third of the City's popula­
tion, by preventing them from electing representa­
tives of their choice to the Pensacola's ten members 
City Council.

Following Trial on the merits, the district 
court held, on July 10, 1978 that the adoption of the 
at-large system for electing members to the City 
Council of Pensacola had been racially motivated. It 
accordingly entered judgment for plaintiffs.



-2-

On November 21, 1978, the district court held a 
hearing to determine the appropriate manner in which 
to redistrict the Pensacola's City Council. At the 
hearing, petitioners filed a plan requiring all ten 
members of the City Council to be elected from single 
member districts. The City of Pensacola filed a plan 
in which seven members of the council were to be 
elected from seven single member districts and three 
members were to be elected at-large, i.e., from 
multimembers districts.

In order to develop its remedial plan, the City 
Council employed expert political scientist and 
others who were instructed to devise a plan which 
would have as many at-large seats as possible and 
which would include at least three single-member 
districts with black electoral majorities. The 
object ive of the City Council was to achieve a ten- 
member council on which black voters would control 
30% of the seats. This percentage was roughly 
proportional to the 33% black population of the City.

The planners informed the City Council that at 
least seven single member districts were required to 
achieve this goal. Using 1970 Federal Census data, 
the City's planning department produced a seven 
single member district three multimembers district 
plan. Three single member districts had 68%, 57% and 
64% black population majorities. According to the



-3-

1978 voter registration rolls, these three districts 
also had black registered voter majorities of 74", 
61%, and 57?.

However, working with just seven single-member 
districts, the planners had great difficulty drawing 
boundaries that met the objective of three majority 
black districts. Several existing precincts had to 
be split. Moreover, this apportionment results in a 
14? population deviation between the largest and 
smallest districts. This was the lowest population 
deviation that could be achieved to produce three 
black districts without dividing precinct lines, 
ignoring major natural boundaries, and creating 
noncontiguous districts. Plaintiffs conceded that 
they knew of no more fairly apportioned seven dis­
trict plan that would produce three black districts. 
The plan presented by the City was the inevitable 
result of trying to provide a 33? population minority 
with 43? of the available single-member districts.

Following an evidentiary hearing, the court 
approved the City's 7-3 plan. It accepted the City's 
argument that the plan was entitled to legislative 
deference on the theory that it was submitted under 
circumstances identical to those surrounding the 
plan filed by the City of Dallas in Wise v.
Lipscomb, 437 U.S. 535 (1978). Plaintiffs' objected



-4-

to the use of three at-large seats but was overruled. 
In a memorandum decision dated December 27, 1978, the 
district court directed the defendant City "to take 
all necessary and proper steps to implement the plan 
submitted to the court in its regular course of 
business and to submit this plan back to the court 
after taking all necessary steps."

On January 11, 1979, the City Council of Pensa­
cola passed Ordinance 3-79 containing the reappor­
tionment scheme approved by the court pursuant to the 
evidentiary hearing. The Ordinance was an amendment 
to the Charter of the City.

The Charter of the City of Pensacola grants it 
broad home rule powers, including the legislative 
power to "change the. numbers, powers and duties, 
compensation, terms of office, and the time and 
manner of election or appointment of any and all 
officers and boards . . . "  Florida Statutes §166.01. 
However, in order to change the method of electing 
the City Council, the charter must be amended by a

V
referendum vote of the people, Florida Statutes
§§166.02-166.12.

In formulating and submitting to the district 
court its remedial reapportionment plan, the City 
failed to follow the statutory charter amendment 
route. It specifically failed to hold a referendum 
election on the change in election procedures to the 
City Council. Its failure to comply with local law



-5-

was excused by the court which ruled that there was 
no necessity to have a subsequent referendum ratify 
the City Council's plan.

The Ordinance included the following provision 
which was approved by the district judge.

Section 3- This ordinance and 
the election plan set forth herein 
shall become effective at the next 
regular or special election of 
the City Council as ordered by the 
district court unless the order of 
said district is modified, re­
versed, or stayed, in which event 
the election of members of the City 
Council shall proceed in a manner 
provided by the said Federal Court.

This ordinance was submitted to the court as 
the City's "final re-districting plan,". On January 
23, 1979, the district court entered an order finally 
approving the plan.



-6-

On February 21, 1979, the district court gran­
ted defendants' motion for a stay pending appeal of 
the July 10, 1978 judgment on the merits and the 
December 27, 1978 order which tentatively approved 
the City's plan and directed its formally imple­
mentation. The January 23, 1979 order finally 
approving the reapportionment ordinance was not 
specifically stayed. The stay order, however, states 
that its effect is to "[allow] the May 1979, elec­
tions to proceed under the all at-large system ...."

Acting under the authority of the stay order, 
the City refused to follow its own ordinance. In­
stead it held the elections for City Council under 
the existing at-large scheme. After the affirmance 
by the Fifth Circuit Court of Appeals of the ruling 
on the merits and on the 7-3 plan, petitioners moved 
the district court to vacate its stay and to order 
the 1981 elections to be held under the 7-3 plan. The 
City opposed the motion. The district court denied 
petitioners' motion and entered another stay of its 
judgment on the merits as well as a stay of the 
remedial orders of December 23, 1978 and January 23, 
1979- The stay orders were affirmed by the Fifth 
Circuit. Therefore, the ordinance has not been used 
for two elections.



-7-

HOW THE FEDERAL QUESTIONS WERE RAISED BELOW

Petitioners, Jenkins, et al, were successful 
plaintiffs in the reapportionment suit below in which 
the district court found that the City of Pensacola's 
at-large election system unconstitutionally diluted 
the votes of black voters. On appeal, the judgment 
of the district court was affirmed. McMillan v. 
Escambia County, 638 F.2d 1239 (5th Cir. 1981). The 
City of Pensacola appealed the judgment below to this 
Court. City of Pensacola v. Jenkins.

On November 21, 1978, the district court con­
ducted a hearing on the remedial phase of this 
action. In its memorandum decision dated December 
27, 1978, the district court ordered implemented a 
plan of the defendant City of Pensacola in which 
seven members of the City Council are to be elected 
from single member districts and three members are to 
be selected at-large. A final order implementing the 
plan was entered by the district court on January 23, 
1979- Plaintiffs appealed. The order of the 
district court was affirmed by the Fifth Circuit 
Court of Appeals which simultaneously dissolved its 
previous stay of elections.



-8-

REASONS THE WRIT SHOULD BE GRANTED

The subject matter of petitioners* petition 
for a writ of certiorari is the same as that of the 
defendant City of Pensacola's pending appeal to this 
Court to review the judgment below of the Court of 
Appeals for the Fifth Circuit. That judgment af­
firmed an order of the district court that appellant- 
defendant City of Pensacola used its system of at- 
large elections to elect City Council members in a 
manner which invidiously operated to dilute or cancel 
out the voting strength of black voters and black 
citizens in the City of Pensacola.

This petition for a writ of certiorari is filed 
in response to appellant's appeal. City of Pensacola 
v. Jenkins. Petitioners request that the writ be 
granted only if the Court notes probable juris­
diction of the appeal and the appeal is not dismissed 
or the judgment from which the appeal is taken is not 
summarily affirmed. Petitioners do not believe that 
the appellant's appeal raises federal questions 
sufficiently substantial to justify review by the 
Court pursuant to Rule 10 of the Rules of the Supreme 
Court.



-9-

If, however, the Court does not dismiss the 
appeal or summarily affirm, then petitioners-plain- 
tiffs request the Court to grant the petition for a 
writ of certiorari and review the correctness of the 
Court of Appeals' judgment insofar as it affirmed the 
judgment of the district court permitting appellant 
City of Pensacola to remedy constitutional violations 
by adopting a mix of seven single member districts and 
three multimembers districts for election to the City 
Council.

The petition should be granted for several rea­
sons. First, it should be granted to enable this Court 
to resolve important questions of federal law which 
have not been, but which should be, settled by this 
Court. In ruling against petitioners, the Court of 
Appeals held that the validity of the remedial plan 
ordered by the district court depended on whether the 
plan was a legislative plan to which the district 
court was required to give deference, see Wise v. 
Lipscomb, supra, or was a court-ordered plan and 
therefore a plan in which the use of multimembers 
districts is prohibited except where extenuating 
circumstances warrant it, see East Carroll School Bd. 
v. Marshall. 424 U.S. 636 (1976). In holding against 
petitioners and ruling that the plan was a legislative 
plan, the Court of Appeals based its decision upon the 
decisions in Wise v. Lipscomb, supra, and East Carroll 
Parish School Bd. v. Marshall, supra.



-10-

In invalidating the City's use of at-large elec­
tions for filling seats on the City Council, the 
district court and the Court of Appeals correctly 
applied legal principles set forth by this Court in 
White v. Regester, 412 U.S. 755 (1973) and Bolden v. 
City of Mobile, Alabama, 446 U.S. 55 (1980). Under 
those principles, the district court acted within its 
discretion in finding the evidence presented at trial 
sufficient to establish proof of appellant's dis­
criminatory intent to use its at-large electoral 
system in an invidious manner to dilute minority 
voting strength. See Washington v. Davis, 426 U.S. 
229 (1976); Village of Arlington Heights v. Metro 
politan Housing Development Corp., 429 U.S. 252 
(1977); Whitcomb v. Chavis, 403 U.S. 124, 143-144 
(1971); White v. Regester, supra; Bolden v. City of 
mobile, Alabama, supra.

Since the judgments of the courts below of which 
appellant complains merely represent straightforward 
applications of settled legal rules, no substantial 
federal questions are raised by appellant's appeal of 
the Court of Appeals' affirmance of the district 
court's order invalidating appellant's existing use 
of at-large elections for filling vacancies on the 
City Council.



The Court of Appeals noted, however, that these 
cases did not "delineate a bright line test to 
facilitate lower courts in characterizing (remedial 
election) plans as either legislative or court- 
ordered". It thereby acknowledged that the issues 
presented herein were important matters of federal 
law which have not hitherto been resolved by this 
Court.

The importance of the issue is evidenced by the 
fact that this Court has granted certiorari and 
recently heard oral argument in McDaniel v. Sanchez, 
615 F.2d 1023 (5th Cir. 1980), cert, granted, 49 
U.S.L.W. 3270, October 14, 1980, where the issue 
involves the criteria for determining when a proposed 
remedial plan, which is a product of litigation in a 
reapportionment case, should be classified as a 
legislative or court ordered plan.

In addition to the above stated reasons, the 
petition should be granted because the Court of 
Appeals, in deciding adversely to petitioners, ap­
plied criteria which directly conflict with this 
Court's decision in East Carroll Parish School Bd. v. 
Marshall and which are not authorized by the Court's
decision in Wise v. Lipscomb.



-12-

THE ISSUE OF THE PROPER CRITERIA FOR
DETERMINING WHEN A REMEDIAL APPORTIONMENT 

PLAN IS A LEGISLATIVE PLAN OR A COURT-ORDERED 
PLAN IS AN IMPORTANT QUESTION OF FEDERAL LAW 

WHICH SHOULD BE SETTLED BY THIS COURT

The Court of Appeals correctly noted that the 
remedy phase of vote dilution case is "governed by a 
determination of whether the plan at issue is properly 
characterized as a 'legislative' or 'court ordered' 
plan". It further noted that Wise v. Lipscomb, supra, 
requires federal district courts to give deference to 
a legislative choice to employ multimembers districts 
to remedy constitutional violations, and that East 
Carroll Parish School Bd. v. Marshall, supra, requires 
federal district courts generally to avoid using dis­
tricts in court-ordered plans to remedy constitu­
tional and statutory violations of voting rights. The 
Court of Appeals, however, was unable to find criteria 
in this Court's decisions which provided sufficient 
guidance for lower courts to enable them to determine 
whether any given remedial plan should be classified 
as a legislative or court-ordered plan.

The Court of Appeals made every effort to analyze 
the basis for decision in both Wise v. Liscomb and 
East Carroll Parish School Board v. Marshall. Its 
failure to extract principles from those cases which 
would assist it in determining whether a proposed

I .



-13-

remedial plan was legislative or court-ordered, was a 
consequence of the following factors: (1) uncertainty 
of the grounds for this Court's decision in Wise v. 
Lipscomb and East Carroll Parish School Bd. v. Mar­
shall; (2) inability to distinquish the relevant facts 
in Wise v. Liscomb from those in East Carroll Parish 
School Bd. v. Marshall; and (3) the lack of an opinion 
in Wise v. Lipscomb which represented the views of a 
majority in this Court. This failure was compounded 
by the further difficulty which the Court of Appeals 
experienced in determining whether, and to what ex­
tent, the decision in East Carroll Parish Schoool Bd. 
v. Marshall was consistent with Wise v. Lipscomb, or 
overruled by it.

To resolve the problems of interpretation and 
application which it had with Wise and East Carroll 
Parish School Bd., the Court of Appeals relied upon 
the analysis by Judge Wisdom in his opinion in 
Marshall v. Edwards, 582 F.2d 927 (5th Cir. 1978). 
Judge Wisdom attempted there a heroic effort to 
reconcile and to identify the facts which the Court in 
East Carroll Parish School Bd. v. Marshall and each 
Justice in Wise v. Lipscomb regarded as determinative.

In his analysis, Judge Wisdom identified the 
following facts as matters which one or more of the 
four separate opinions in Wise v. Lipscomb had deemed 
potentially dispositive for determining whether a 
proposed remedial electoral plan was legislative or



-14-

court-ordered: (1) whether at the time of the 
judgment the plan was viewed by the district court as 
a legislative plan or a court-ordered plan; (2) 
whether the affected governmental body possessed 
authority to adopt the plan unilaterally; (3) whether 
the governmental body in question acted as a legis­
lative body when adopting the plan submitted to the 
district court; and (4) whether the governmental body 
had taken action, or attempted to take action, which 
made the remedial plan binding as law.

This analysis by Judge Wisdom was applied by the 
Court of Appeals below as a correct statement of the 
relevant legal principles governing the designation 
of proposed remedial voting plans as legislative or 
court-ordered. The correctness and applicability of 
Judge Wisdom's analysis bear substantially upon the 
efficacy of remedies in voting rights cases and upon 
the ability of legislative bodies to find their way 
around the requirements set forth by the Court in Wise 
v. Lipscomb and East Carroll Parish School Board v. 
Marshall. It is important therefore that the Court 
determines whether the remedy phase of voting rights 
cases will be determined by the standards set forth by 
Judge Wisdom in Marshall v. Edwards and by the court 
below, or will be determined by different standards.



-15-

A. The District Court's Characterization of the
Plan.

Under Judge Wisdom's analysis, as adopted by the 
Court of Appeals, the district court's characteri­
zation and treatment of the remedial plan are relevant 
factors influencing the designation of the remedial 
plan as legislative or court-ordered. This conclusion 
was based upon a composite reading of the various 
opinions in Wise v. Lipscomb. If this is a correct 
plan, then the effect of the decision below is to 
accord considerable discretion to the district court 
to evade the strictures of East Carroll Parish School 
Bd. v. Marshall and thereby avoid the necessity of 
making the type of objective distinction between 
legislative plans and court-ordered plans which was 
contemplated by the decision in Wise v. Lipscomb and 
which perhaps motivated this Court to grant certiorari 
in McDaniel v. Sanchez.

The importance and necessity for reviewing the 
Court of Appeals' decision are evident since it is 
clear that the Court of Appeals could not obtain 
guidance from any of this Court's decisions to assist 
it in determining how much weight should be attributed 
to whether a district court regards a proposed re­
medial plan as a legislative plan or as a court- 
ordered plan. Since the Court of Appeals' decision 
vitally affects important principles of federalism, 
as well as the ability of plaintiffs to obtain 
meaningful remedies for proven violations of consti­
tutional rights, this Court should grant the petition



- 1 6 -

for a writ of certiorari. Quite clearly, the question 
of the power and discretion of district courts to 
accept or reject remedial plans proposed by defendants 
in vote dilution cases, is an unsettled matter which 
only this Court can resolve.

B. A Local Body's Authority to Apportion Itself.

An examination of the opinion below shows that 
the Fifth Circuit was unable to ascertain, from the 
conflicting opinions in Wise v. Lipscomb, what degree 
of significance it, and federal courts generally, 
should attach to the failure, or incapacity, of a 
legislative body to comply with local or federal law, 
in proposing, adopting, or enacting, an electoral plan 
to remedy proven constitutional violations of vote 
dilution.

It read Justice White's opinion, in which Justice 
Stewart concurred, as prohibiting a district court 
from treating a proposed plan as a legislative plan if 
the legislative body failed to comply with federal law 
but not if it failed to comply with local law. 
Applying Justice White's analysis to the facts before 
it, the Court of Appeals treated appellant's failure 
to have its remedial plan approved in a referendum as 
irrelevant despite the requirement of the City's Home 
Rule Charter that a change in the manner of election 
of City Council members must be approved by referen­
dum.



-17-

On the other hand, the court assumed that Justice 
Powell's opinion in Wise v. Lipscomb, in which Chief 
Justice Burger, and Justices Blackmun and Rehnquist 
concurred, made irrelevant any consideration of the 
legislative body's failure to comply with local law or 
its lack of authority under local law to adopt its own 
proposed remedial Plan. The Court of Appeals seemed 
to assume that these Justices would make the deter- 
miniation of whether a remedial plan should be desig­
nated as a court-ordered or legislative plan, hinge 
entirely o two factors: (1) consistency of the plan 
with federal law; and (2) whether the legislative 
body, in adopting the plan, acted in a legislative 
capacity. The Court of Appeals thereby assumed that 
these Justices were indifferent to the consequences of 
permitting federal courts to authorize local legis­
lative bodies to evade the protections of democratic 
controls. It was sufficient for these Justices, the 
court implicitly assumed, that the legislative body 
purported to act in its legislative capacity and to 
act under the guise of fulfilling its duty to provide 
a remedy for proven constitutional violations.

These assumptions rested upon another assump­
tion, namely that this Court would not notice the 
incongruity in permiting a local legislative body to 
evade local restrictions on its authority by invoking 
its claimed duty to abide by a federal court order 
while simultaneously requiring a district court to



-18-

give deference to the body's proposed remedial plan on 
the ground that the plan is legislative and not court- 
ordered. The profound implications of these assump­
tions become clear when it is realized that they would 
operate to validate an ultra vires plan, such as the 
one involved here, even though the plan will never be 
made to conform to the requirements of local laws. On 
the other hand, if the legislative body decides 
subsequently to comply with local law but is unable to 
comply, then, under the assumptions made by the Court 
of Appeals, there is a serious question on whether the 
legislative body would regain its freedom-of-action 
to continue with the implementation of the proposed 
plan or to drop it. The efficacy of the remedial plan 
would then be in the hands of the local legislative 
body.

Despite these serious implications, the Court of 
Appeals applied this interpretation of Justice 
Powell's opinion in Wise v. Lipscomb. It construed 
Judge Arnow's order below directing "the Defendant 
City of Pensacola, to take all necesary and proper 
steps to formally implement the plan submitted... . and 
to submit this plan back to the Court", as an 
invitation by the district court to the City Council 
to exercise its legislative power to reapportion 
itself. It therefore held that the City Council of 
the Defendant City of Pensacola acted legislatively in 
proposing and adopting the remedial plan.



-19-

The Court of Appeals, however, recognized that 
its analysis and decision were wholly at variance with 
Justice Marshall's dissenting opinion in Wise v. 
Lipscomb, in which Justices Brennan and Stevens Con­
curred. It frankly admitted that that opinion re­
quired federal courts to regard a proposed remedial 
plan as a court-ordered plan, and not as a legislative 
plan, if the governmental body submitting the plan 
lacked authority under either local or fedeal law to 
adopt it. The court was convinced that the views 
expressed in that opinion could not command a majority 
of the Supreme Court notwithstanding the decision in 
East Carroll Parish School Bd. v. Marshall, except 
where the proposed plan ran afoul of a specific 
federal restriction. The court therefore held that 
the Pensacola City Council's lack of power under the 
City's Home Rule Charter to adopt the proposed plan 
without submitting it to a referendum, did not affect 
the validity of the designation of the plan as a 
legislative plan.

The manner in which the Court of Appeal disposed 
of the issues below disparages the role and signi­
ficance of rights reserved to the people over their 
democratic institutions in situations where the dis­
trict court has a basis for ordering relief which does 
not unnecesarily require local officials to act con­
trary to their mandate. Furthermore, the courts 
below, by deferring to a legislative choice of plans



-2.0-

which the legislature is specifically forbidden to 
enact on its own authority, have not only blurred the 
distinction between legislative and court-ordered 
plans but have also blurred the distinction between 
genuine legislative plans and "sham" legislative 
plans. This petition therefore presents issues which 
have not been settled by this Court.

C. Determining If The Local Body Acted Legisla­
tively.

Although the Court of Appeals purported to apply 
Judge Wisdom's analysis in Marshall v. Edwards, it 
ultimately based its judgment upon the opinion of 
Justice Powell in Wise v. Lipscomb in which he 
proposed that federal courts, when determining 
whether a proposed plan is court-ordered or legis­
lative, should only seek to ascertain whether the 
legislative body acted legislatively in adopting a 
remedial electoral plan. This was one of the grounds 
upon which the court relied in affirming the district 
court's use of a mix of single member districts and 
multimembers districts.

Since Justice Powell's opinion was not a majority 
opinion, the Court of Appeals resolved the issues 
below in accordance with standards which have not been 
adopted by this Court. The Court's adoption of 
Justice Powell's opinion in Wise v. Lipscomb as the



-21-

rationale for its decision assumed that his analysis 
was equally applicable to both genuine legislative 
plans and sham legislative plans, i.e. plans which, 
when considered as legislative plans, present only the 
illusion of a remedy. Moreover, this basis for the 
Court of Appeals' decision conflicts with the Court's 
decision in East Carroll Parish School Bd. v. Mar­
shall. To resolve the conflict and to determine the 
applicable legal standards, the Court should grant the 
writ of certiorari.

D. The Binding Character of the Legislative Action

In addition to granting the writ of certiorari 
for the above stated reasons, the Court should also 
grant the writ in order to settle the issue of whether 
federal courts, when distinquishing legislative plans 
from court-ordered plans, must take into account 
whether the legislative body adopted the plan as a 
binding law, i.e., by going through the formality of 
enacting it as an ordinance which purports to be 
binding. This test was suggested by Justice Marshall 
in his dissenting opinion in Wise v. Lipscomb. He 
suggested there that the crucial factor in determining 
whether a proposed plan was legislative or court- 
ordered, was whether it was advanced as a "legislative 
judgment....[or] as a response by a party litigant to 
the court's invitation to aid in devising a plan."



-22-

Wise v. Lipscomb., supra, ^37 U.S. at 552-553-
This test has the virtue of candor. It reflects 

the ralities of the situation. If the legislative 
body does not even pretend to be enacting a binding 
plan, them it is difficult to understand how its 
adoption of the plan can be considered to be a 
legislative judgment. By drawing a distinction be­
tween a legislative judgment and a litigant's response 
to a court's invitation to participate in devising a 
plan, Justice Marshall applied a test which would 
refuse to recognize a plan as a legislative plan if it 
was not intended to be binding. His test would thus 
disqualify as legislative plans those plans which 
provided, either because of the legislative body's 
lack of authority or because of the tentative, un­
binding nature of its purported remedial plan, only an 
illusory promise of remedial relief.

Because the court below was not prepared to adopt 
Justice Marshall's test in full, it apparently assumed 
that it should never ascertain whether a legislative 
body's adoption of a remedial plan might be so 
tentative, so nonbinding, and so dependent upon con­
tingent actions of the district court, that its 
consideration as a legislative plan would undermine 
the basis upon which Wise v. Lipscomb and East Carroll 
Parish School Bd. v. Marshall were decided. This 
conclusion is verified by the Court's assessment of 
the provisional status of the City Council's Ordinance



-23-

No. 3-79, section 3. This section provides that:

This ordinance and the election 
plan set forth herein shall become 
effective at the next regular or 
special election of the City Coun­
cil as ordered by the District 
Court unless the order of said 
District Court is modified, re­
versed or stayed, in which event 
the election of members of the City 
Council shall proceed.

Clearly, this Ordinance delegates to the dis­
trict court the responsibility for determining if and 
when the proposed plan will take effect. It is made 
efffective only if it is so ordered by the district 
court. If the judgment of the district court is 
modified or reversed, then not only is the Ordinance 
not to take affect but also the City Council is 
affirming that whatever the court provides as a 
substitute is fine with it. In other words, the City 
Council did not express a legislative judgment and 
hence the ordinance is not a legislative plan.

The Court of Appeals proceeded on the assumption 
that the tentative, conditional nature of a legis­
lative body's approval of a remedial plan was a fact 
which it could ignore simply by holding that the 
district court had not accepted the proposed plan as 
tentative and conditional but rather as definite and 
nonconditional. It indulged this assumption even 
though the purpose of the indulgence was to show that



-24-

the plan was legislative and not court-ordered.
The Court of Appeals failed to see the incon­

sistency between its conclusion that the district 
court had not accepted the City Council's plan as 
conditional and its conclusion that the plan was not 
court ordered. It was, however, troubled by its 
inability to obtain guidance on what effect should be 
given to the City Council's delegation of power to the 
court to decide if and when the proposed plan should 
become effective. In trying to ascertain what impact 
the failure of the City Council to take responsibility 
for its plan should have upon designation of the plan 
as legislative or court-ordered, the Court of Appeals 
hereby noted (1) that the Dallas City Council in Wise 
v. Lipscomb took more responsibility for its plan than 
did the defendant City of Pensacola and (2) that 
Pensacola's City Council took more responsibility for 
its plans than did the defendants in Marshall v. 
Edwards, supra, where Judge Wisdom had held that the 
plan there was court-ordered.

The difficulties which the Court of Appeals 
experienced in trying to classify the plan submitted 
below as legislative or court-ordered demonstrate 
that this is an issue of federal law to be settled by 
the Supreme Court. Certainly, this issue is too 
important to be dismissed, as the Court of Appeals 
did, with the remark that the "actions of the Pensa­
cola City Council fall between those in Marshall and



-25-

Wise". 638 F.2d at 1253-

I I .

THIS COURT SHOULD SETTLED THE ISSUE OF THE 
TYPE OF REMEDY WHICH A DISTRICT COURT 
SHOULD GRANT IN A VOTE DILUTION CASE

The district court found, and the Court of 
Appeals affirmed, that defendant City of Pensacola had 
invidiously used its at-large electoral system for 
election to the City Council, to dilute the voting 
strength of black voters. As a remedy, however, the 
courts below permitted the defendant City of Pensacola 
to continue its use of at-large elections to elect 
three of the ten members of the City Council. The 
remaining seven members are to be elected from single 
member districts.

In authorizing the continued use of some at-large 
seats, the courts below turned a deaf ear to the 
suggestion of three members of this Court that:

Multimember districts, which are 
disfavored as court-devised reme­
dies because of their "tendency" or 
potential to create racial dilution, 
should a fortiorari be disfavored 
when they are proposed to cure a 
proven use of a "multimember . . . 
scheme . . .to minimize or cancel 
out the voting strength of racial . .
. elements of the voting population. 
Fortson v. Dorsey, 379 U.S. 433, 439 
(1965).



-26-

Wise v, Lipscomb, supra, 37 U.S. at 555 (Marshall, J. 
dissenting).

A disdain for the use of multimember districts to 
remedy proven constitutional claims of vote dilution 
caused by a previous use of multimember districts is 
merely a logical consequence of this Court's holding 
in Conner v. Finch, 431 U.S. 407, 415 (1977) that:

Because the practice of multi- 
member districting can contribute to 
voter confusion, make legislative 
representatives more remote from 
their constituents, and tend to sub­
merge electoral minorities and over­
represent electoral majorities, 
this Court has concluded that 
single-member districts are to be 
preferred in court ordered legis­
lative reapportionment unless the 
court can articulate a "single com­
bination of unique factors'* that 
justifies a different result.

See also East Carroll Parish School Bd. v. Marshall, 
supra, 424 U.S. at 639; Chapman v. Meier, 420 U.S. 1, 
17-19 (1975); Mahan v. Howell, 410 U.S. 315, 333 
(1973); Connor v. Williams, 404 U.S. 549, 551 (1972).

The Court of Appeals did not feel constrained to 
follow the principles of these cases because it 
believed that they had been superseded by the Court's 
decision in Wise v. Lipscomb upholding the use of a 
mix of multimembers districts and single member dis­
tricts to remedy an established claim of vote dilu­
tion. The Court of Appeals, however, failed to take



-27-

into account Justice White's admonition in Wise v. 
Lipscomb that the application to the facts presented 
of principles devised for voting rights cases "is not 
always immediately obvious." 437 U.S. at 51.

In particular, the Court of Appeals failed to 
evaluate whether the holding in Wise v. Lipscomb was 
applicable to a situation in which (1) the remedy 
proposed by the legislative body, and adopted by the 
district court, gives black residents, who represent 
33$ of the population of the City of Pensacola, the 
opportunity to elect three of their own representa­
tives to 43$ of the seven single member districts, and 
(2) reapportionment of the City Council on the basis 
of the 1980 census will undoubtedly result in an 
arrangement in which black voters will only be able to 
elect two members of the City Council, a percentage 
which is far less than 33$ of the single member 
districts.

The Court of Appeals thus did not take into 
account the fact that the district court's remedy, in 
which black voters will be able to elect three City 
Council members, will develop, in 1981 or 1982, into a 
situation in which black voters will be able to 
obtain, at best, only 2 seats among the seven seats 
representing single member districts. Since the proof 
of petitioners' vote dilution claims demonstrates 
that black voters will not be able to elect represen­
tatives in at-large elections, the net effect of the



-28-

district court’s remedy is to create a situation in 
1982 in which black representation on the City Council 
will be held to a maximum of 2 seats out of ten, i.e. , 
to 20% of available council seats. It is this 
consequence which makes the City's proposed remedial 
plan an illusory promise of remedial relief.

Because of its mistaken interpretation of the 
scope of application of the decision in Wise v. 
Lipscomb, the Court of Appeals did not examine the 
impact which reapportionment on the basis of the 1980 
census would have on the plan proposed by the City. 
This Court, however, affirmed in Ely v. Klahr, 403 
U.S. 108 (1971) that a district court could properly 
consider the impact which future census data might 
soon have on the manner in which a malapportionment of 
a legislative body should be remedied.

Since the City's continued use of multimembers 
districts will cause future reapportionment on the 
basis of 1980 census figures to dilute again peti­
tioners' voting strength, the relief provided under 
the "legislative" plan of the City will soon be shown 
to be entirely illusory. It was therefore error, 
petitioners believe, for the Court of Appeals to 
interpret the Wise decision to immunize the City's use 
of multimembers districts from a searching inquiry by 
the district court to determine if the purpose, or the 
effect, of the City's plan was to provide illusory 
relief to plaintiffs by continuing, at a reduced 
level, the dilution of their voting strength.



-29-

In view of the effect of the judgments below, 
this case raises an important issue concerning the 
purpose and scope of Wise v. Lipscomb in relation to 
the district court's authority and duty, irrespective 
of whether a proposed remedial plan is classified as 
court-ordered or as legislative, to ferret out illu­
sory remedial schemes and deny them effect. This is 
an unsettled issue which should be reviewed by this 
Court.



-30-

CONCLUSION
For the reasons indicated herein, this Court 

should grant petitioners’ petition for a writ of 
certiorari if it notes probable jurisdiction of 
appellant's appeal and the judgment from which appel­
lant appeals is not summarily affirmed.

Respectfully submitted,

KENT SPRIGGS
324 West College Avenue 
Tallahassee, Florida 32301 
Telephone: 904-224-8701

J. U. BLACKSHER
Counsel of Record 
LARRY MENEFEE 
P.0. Box 1051 
Mobile, Alabama 36633 
Telephone: 205-433-2000

W. EDWARD STILL
400 Commerce Center 
2027 1st Avenue North 
Birmingham, Alabama 35203 
Telephone: 205-322-6631

JACK GREENBERG
JAMES M. NABRIT, III
NAPOLEON B. WILLIAMS, JR. 

Suite 2030 
10 Columbus Circle 
New York, N.Y. 10019 
Telephone: 212-586-8397

Attorneys for Petitioners
ELMER JENKINS, et al.



APPENDIX



- 1 a '

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 79-1633

ELMER JENKINS, et.al.,

Plaintiffs-Appellants, 
V.

CITY OF PENSACOLA, et al.,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF FLORIDA

(FEBRUARY 19, 1981)

Before COLEMAN, PECK* and KRAVITCH, Circuit Judges. 
KRAVITCH, Circuit Judge:

*Senior Circuit Judge of the Sixth Circuit, sitting 
by designation.



- 2a -
This appeal presents the very narrow but

difficult question of whether the district court
1/ 2/properly "approved1'— a 7-3— plan for future City

3/Council elections in Pensacola, Florida.— We have 
today, in a separate opinion, McMillan v. Escambia
County, ___ F.2d ___ (5th Cir. 1980), affirmed the
district court which held unconstitutional the at- 
large system for the election of City Council 
members.

The decision of whether to affirm or re-
47verse in this, the remedy phase of the appeal,— is 

governed by a determination of whether the plan at 
issue is properly characterized as a "legislative" 
or "court-ordered" plan. If it is classified as 
"legislative," then the district court properly 
deferred to the City council and the plan is 
acceptable under Wise v. Lipscomb, 437 U.S. 535 
(1978). On the other hand, if the plan is "court- 
ordered," then the presence of the three at-large 
seats makes the plan unacceptable under East Carroll 
Parish School Bd. v. Marshall, 424 U.S. 636 

(1976).—7



- 3a -
This dichotomy of result depending on the

characterization of the plan was created by the
Supreme Court's decision in Wise v. Lipscomb, 437
U.S. 535 (1978). At issue in Wise was the plan for
electing the City Council in Dallas, Texas, which
had been adopted after the former at-large system

6 /was declared unconstitutional.— The district 
court "afforded the city an opportunity as a leg­
islative body for the City of Dallas to prepare a 
plan which would be constitutional." 437 U.S. at 
538. The Dallas City Council took advantage of that 
opportunity and passed a resolution which stated 
that the Council intended to enact an ordinance 
which would create an 8-3 system. That proposal was 
submitted to the district court, which after a 
hearing, announced the plan was constitutionally 
acceptable. The City Council then formally enacted 
the ordinance. Subsequently, the district court 
entered a written order approving the city plan as a 
valid legislative act. Lipscomb v. Wise, 399 F.
Supp. 782 (N.D. Tex. 1975).



- 4a -

The Fifth Circuit reversed, holding the 
plan should have been judged as a court-ordered 
plan. Under East Carroll Parish, the controlling 
law on court-ordered plans, the presence of the 
three at-large seats rendered the plan unaccep­
table. Lipscomb v. Wise, 551 F.2d 1043 (5th Cir. 
1977).

The Supreme Court reversed this court, 
holding that the 8-3 plan was, in fact, a legi­
slative plan and thus the presence of at-large seats 
did not render it unacceptable. The decision in Wise 
did not, however, delineate a bright line test to 
facilitate lower courts in characterizing plans as 
either legislative or court-ordered. There were
four opinions announced in Wise, though only three 

7/are relevant here.- Mr. Justice White authored the 
plurality opinion in which only Justice Stewart 
joined. Justice Powell, joined by Justice Burger, 
Blackmun and Rehnquist, joined in the judgment, and 
filed a separate opinion. Justices Marshall, 
Brennan and Stevens dissented.

In Marshall v. Edwards, 582 F.2d 927, 932-
O /

22 (5th Cir. 1978),— Judge Wisdom reviewed Wise and 
extracted the major points under each of the sepa­
rate opinions. According to Judge Wisdom, Justice 
White saw three important differences between the 
plan in Wise (legislative) and the plan in East
Carroll Parish (court-ordered).



- S a ­

in Wise the district court reviewed the plan 
as a legislative plan. In [East Carroll 
Parish], by contrast, the local bodies sub­
mitted plans in response to court orders and 
"did not purport to reapportion themselves . .
. 437 U.S. at 545, 98 S.Ct. at 2495.
Second, in [East Carroll Parish] federal law 
prevented the bodies from effectively redis­
tricting. The state law providing police 
juries and school boards with that power had 
been disapproved by the Attorney General 
under §5 of the voting Rights Act. [East 
Carroll Parish], 424 U.S. at 638 n. 6, 96 
S.Ct. IO83. Finally, in Wise the court 
explicitly gave the Council an opportunity to 
pass constitutional apportionment, which it 
did.

582 F.2d at 932.
Justice Powell's opinion, on the other hand, 

focused not on whether the Council had the power to 
reapportion itself (a subject discussed at length 
in Justice White's opinion), but on whether it was 
acting as a legislative body when it developed or 
approved the plan.

Justice Marshall's dissent saw no meaningful
distinction between East Carroll Parish and Wise.
In Marshall's view, the fact that the Wise defen-

9/dants did not follow state procedures, and did



- 6a -
not purport to enact binding redistricting was 
dispositive of the issue— the plan was court or­
dered.

In the fact situation of Marshall v. Edwards, 
582 F.2d 927 (5th Cir. 1978), it was relatively 
easy to conjoin the opinions of Justices White and 
Powell to decide the plan at issue was court- 
ordered; all of Justice White's considerations 
pointed to that conclusion. 582 F.2d at 933. 
Furthermore, Justice Powell had distinguished East 
Carroll Parish from Wise based on the fact that 
under §5 of the Voting Rights Act, the state 
statute empowering the East Carroll Parish police 
jury to reapportion itself was illegal, whereas 
Dallas was not covered under §5 of the Voting 
Rights Act. Also, Marshall involved the East 
Carroll Parish police jury, which according to 
Powell's opinion in Wise, was not acting as a 
legislative body in the development of a reappor­
tionment plan.

While the facts in Marshall pointed directly 
to the conclusion that the plan was court-ordered, 
such is not the case here. Considerations mili­
tate in both directions: some tilt toward legis-



- 7a -
lative; others indicate the plan is court-ordered. 
On balance, however, we feel it is better viewed as 
a legislative plan.

Factually, the scenario here generally tracks 
that of Wise ■ After he declared unconstitional the 
at-large system used in Pensacola to elect the City 
Council, Judge Arnow ordered the parties to "submit 
proposals that they believe provide an effective 
remedy for the dilution found by the court to 
exist." Both parties filed suggested plans. The 
plaintiffs' plan was for ten single member dis­
tricts, while the defendants submitted a 7-3 plan.

A hearing was then held on the propriety of 
the defendants' plan. Judge Arnow issued a written 
order on December 27, 1978, approving the plan as a 
legislative plan. He noted that the city's plan 
could go into effect without the necessity of a 
referendum, under the "thrust" of Wise v. Lipscomb. 
10/The court then wrote:

The Court hereby directs the 
Defendant, City of Pensacola, to take 
all necessary and proper steps to 
formally implement the plan submitted 
to the Court in its regular course of



- 8a -

business and to submit this plan 
back to the Court after taking 
all such necessary steps. The 
Court will enter its Final Order 
approving the plan at that time.

Approximately three weeks later, the city 
submitted its final plan which had been formally 
adopted by Ordinance No. 3-79, the final reading of 
which had occurred on January 11, 1979. Section 3 
of Ordinance No. 3-79 provided:

This ordinance and the election 
plan set forth herein shall beomce 
effective at the next regular or 
special election of the City Council 
as ordered by the District Court 
unless the order of said District 
Court is modified, reversed or stayed 
in which event the election of members 
of the City Council shall proceed in 
a manner provided by the said Federal 
Court.

(Emphasis added).
The district court then entered an order 

approving the final redistricting plan as con­
tained in the ordinance. That day, the defendants 
applied for a stay pending appeal. Their appli­
cation for the stay and supporting memorandum 
requested either (1) a stay of the order which



- 9a

found the system unconstitutional and a stay of the
December 27, 1973, order which initially approved 

11 /the 7-3 plan, —  or (2) a stay of all elections 
pending final action by the Fifth Circuit.

The application for a stay order was opposed 
by the plaintiffs, but they stated that if Judge 
Arnow was disposed to grant a stay they would 
prefer for him to allow the scheduled May at-large 
elections to proceed. Judge Arnow did just that: 
he stayed implementation of his order declaring the 
system unconstitutional and his order which ap­
proved the 7-3 city plan. The May 1979 elections 
proceeded on schedule.

Based upon three factors articulated by Judge 
Wisdom to be determinative under Justice White's 
Wise opinion, this plan appears to be legislative. 
As in Wise, the district court here reviewed the 
plan as a legislative plan; federal law did not 
prevent the City Council from redistricting it­
self; and the court told the City Council to 
reapportion itself. 582 F.2d at 932. Furthermore, 
the factor which Justice Powell found distin­
guished Wise from East Carroll Parish also distin­
guishes this plan from that in East Carroll Parish:



- 10a -
Pensacola, like Dallas, is not covered under §5 of 
the Voting Rights Act.

Notwithstanding the fact that this case seems 
to fall within the Wise rule, the plaintiffs argue 
the plan is court-ordered. Their argument is: (1)
by its language in Ordinance No. 3~79, the Council 
delegated to the district court the responsibility 
of determining if and when the plan would become 
effective; and (2) the plan was not submitted to 
the electorate for ratification. We find neither 
argument carries the day.

The plaintiffs make much of the fact that 
under the wording of the ordinance, the City 
Council was not purporting to take responsibility 
for the plan, but was delegating that responsi­
bility to the federal court. According to the 
plaintiffs, the key to making the leg islative 
/court-ordered distinction should be who takes 
responsibility for the plan.

It would appear, however, that the Dallas City



- 11a -
Council did not take much more responsibility for 
its plan than Pensacola did. The Dallas Council 
did not enact a binding ordinance until after the 
district court indicated it would approve the plan. 
437 U.S. at 553 (Marshall, J. dissenting). The 
plaintiffs are correct that the Pensacola City 
Council took even less responsibility. According 
to its ordinance, the plan would never take effect 
unless so ordered by the district court. Still, 
Pensacola took more responsibility for the plan 
than did the defendants in Marshall, where the plan 
was held to be court-ordered. There, the attorney 
for the defendants made it clear that all the 
Police Jury did was agree to submit the plan to the 
court. 582 F.2d at 933- The actions of the 
Pensacola City Council fall between t hose in 
Marshall and Wise but seem closer to Wise and hence 
to legislative action.

Though the plaintiffs argue the City Council 
was delegating its authority to the district 
court, it would appear that the district court did 
not accept the responsibility but placed it back 
into the lap of the City Council. For example, 
despite the wording of Ordinance No. 3-790, the 
district court's order simply approved the ordi­
nance; it did not order it into effect. Thus, 
while the City Council's language in section 3



12a

may — - have contemplated an order putting it into 
effect, the district court did not respond with 
such an order. — ^

Plaintiffs' second argument against this 
being a legislative plan is that Pensacola did not 
go through the referendum process as is required 
under its Home Rule Charter. They see some 
significance in the fact that in Wise the Dallas 
City Council eventually submitted the 8-3 plan to 
the electorate, although admittedly it was after 
the plan had already been put into effect. 437 
U.S. at 539 n. 3-

We do not read Wise to make the evantual 
referendum essential to its ruling. Justice 
White's opinion indicates that once the at-large 
provision in the City Charter was declared uncon­
stitutional, the city was free to exercise appar­
ently inherent legislative powers to enact a new 
system, 437 U.S. at 544, without the necessity of 
following the set procedure which requires a 
referendum. We are persuaded that the same rea­
soning should apply here.

Deciding whether this plan is legislative or 
court-ordered admittedly is difficult. However, 
the Supreme Court clearly indicated in Wise that
federal courts should only reapportion local



13a -

.governments when those with legislative responsi­
bilities do not respond to the need. 437 U.S. at 
540. We cannot say Pensacola's actions were so 
unresponsive to the need for reapportionment that 
the federal court should have enacted a court- 
ordered plan.

The plaintiffs further argue that even if this
is a legislative plan, it is not constitutional.
In Wise, the Supreme Court, over a three-Justice
dissent on the point, upheld the 8-3 plan proposed
for Dallas. That plan would have virtually "guar- 

14/anteed" —  that two of the eight single-member
district City Council seats would be occupied by
blacks. 399 F. Supp. at 795. At that time, Dallas
was 65$ white, 25$ black and 10$ Hispanic.
Lipscomb v. Wise, 551 F.2d 1043, 1045 (5th Cir.
1977). Thus, one-quarter of the population was
being "guaranteed" one-quarter of the single-

15/member seats, but only 18$ of all seats. The 
plan was almost a perfect one person-one vote 
apportionment. Reynolds v. Sims, 377 U.S. 533
(1964) 16/

In Calderon v. McGee, 584 F.2d 66 (5th Cir. 
1978), modified on rehearing, 589 F.2d 909 (1979),



- 14a -
this court approved a 5-2 plan for the Waco
Independent School District (WISD). The minority 
17 /—  population of WISD was approximately 28$. As 
the district linesl were drawn, the minority popu­
lation could control two of the five single-member 
district seats. Thus, a 28$ minority could elect 
28$ of the entire school board, and could elect 40$ 
of the single-member district seats. The Court did 
not discuss the extent of deviation from the one 
person-one vote ideal expressed in Reynolds.

The plan approved in this case would permit 
black Pensacolans to elect three of the seven 
single-member district seats. Thus, a 33$ minority 
could elect almost one-third of all council seats, 
and 43$ of the single-member district seats. The 
plan deviates by 14$ from the one person-one vote 
ideal.

The plaintiffs argue that because there has 
been a finding of vote dilution, the ideal re­
apportionment is one which will create "enough 
majority black single-member districts to give 
blacks the opportunity to elect representatives in 
proportion to their polpulation percentage." They 
then arguethat the "ideal reapportionment" is



15a -

ten single-member districts. With that we cannot 
agree.

As drawn the plan will permit blacks to elect
a proportionate number of council members. That
conforms to the ideal and thus will not be dis-

18/turbed by this court. —
The 14# deviation from the one person-one vote

IQ/ideal should be dealt with briefly. —  The dis­
trict court found the deviation to be acceptable 
because to reduce it in the context of a 7-3 plan 
would require undue distortion of precinct lines 
and contiguity. Given the fact that this is a 
legislative plan, see Mahan v. Howell, 410 U.S. 315 
(1973), and that the council will have to be 
reapportioned after the 1980 decennial census, we 
cannot say the 14# deviation renders the plan 
unconstitutional.

The district court AFFIRMED and the stay of 
all elections granted by this court on March 10, 
1980 is hereby DISSOLVED.



16a -

U
We use the term "approved" reluctantly as the 
issue in the case is whether the district judge 
merely approved the plan or whether he ordered it 
implemented.

2/
A 7-3 plan is one with seven single-member 
districts and three at-large districts. The 
single-member district council members would be 
required to reside within the district and would 
be elected by the voters of the district. There 
would be no residency requirement for the at- 
large seats.

3/
After final approval of the plan, the district 
court stayed his order pending resolution by this 
court of the city's appeal on the merits.

4/
See McMillan v. Escambia County, ___ F.2d ___,
___  n.1 (5th Cir. 1980).

5/
At-large seats are not, of course, per se unac­
ceptable in a court-ordered plan. However, in 
order to use at-large seats in a court-ordered 
plan, "special circumstances" must be present. 
Corder v. Kirksey, 585 F.2d 708, 713-14 (5th Cir. 
1978).

6/
In contrast to the situation in the case at bar, 
the Dallas City Council did not appeal the merits 
decision, i.e., it did not contest the finding of 
dilution.



17a -

Justice Rehnquist wrote an opinion, joined in by- 
Justices Burger, Stewart and Powell, making it 
clear the Court in Wise had not been presented 
with the question of whether the district court 
was correct in holding the Dallas form of go­
vernment unconstitutionally diluted the voting 
strength of black citizens. 437 U.S. at 549-50.

8/
The Marshall case is a continuation of the East 
Carroll Parish case. Taht case began in 1968 
when Charles Zimmer sued various officials of 
Louisiana and East Carroll Parish alleging that 
the apportionment of the policy jury and school 
board was unconstitutional. In response to that 
suit, the district court adopted a parish at- 
large system. A panel of this court affirmed, 
Zimmer v. McKeithen, 467 F.2d 1381 (5th Cir. 
1972), but was reversed by the en banc court, 485 
F.2d 1297 (5th Cir. 1973). The case was appealed 
to the Supreme Court which affirmed the en banc 
court, but did so on the ground that exceptional 
circumstances must be present to justify a dis­
trict court in ordering at-large elections. East 
Carroll Parish School Bd. v. Marshall, 424 U.S. 
636 (1976). On remand, the district court
adopted a new plan. That order was appealed and 
reversed in Marshall v. Edwards, 582 F.2d 927 
(5th Cir. 1978).

Dallas was a home rule city. Under the terms of 
its charter, however, in order to reapportion 
itself, it was required to conduct a popular 
referendum. 437 U.S. at 552. Despite that 
requirement, Dallas reapportioned itself and had 
elections before submitting the new plan to a 
referendum vote.



18a -

Pensacola is also a home rule city, Fla. Const, 
art. 8, §2, and must also submit any changes in 
the charter to a referendum vote of the people, 
Fla. Stat. Ann. §166.02-166.12. Like Dallas, 
had the order of the district court not been 
stayed, Pensacola would have had elections under 
the new plan without submitting it to a refer­
endum vote.

The argument, as advanced by Justice White in 
Wise, is that once the charter provision setting 
up the at-large election system is declared 
unconstitutional, the Council is free to exer­
cise its apparently inherent legislative powers 
to enact a new system. 437 U.S. at 544.

This would have permitted at-large elections, 
scheduled for May 1979 to proceed.

12/
The language of §3 is actually ambiguous. It can 
be read to mean the ordinance will go into 
effect, but whether it will take effect at the 
next regular election or whether there is to be a 
special election where it will take effect is up 
to the district court.

The plaintiffs also assert that this case is 
distinguishable from Wise Dallas proceeded with 
elections under the new plan while their appeal 
was pending whereas Pensacola did not. Ini­
tially, we would note that the fact that Dallas 
proceeded with elections while the appeal was 
pending has not been seen as central to the Wise 
ruling. See Calderon v. McGee, 584 F.2d 66, 69 
(5th Cir. 1978), modified on rehearing, 589 F.2d 
909 (5th Cir. 1979).



- 19a -

That is not to say that the stay granted by the 
district court is irrelevant to our determina­
tion of whether this plan is legislative or 
court-ordered. There is a certain amount of 
surface appeal to the assertion that a stay only 
makes sense if the plan is court-ordered. How­
ever, a careful reading of the stay reveals that 
it does not stay the plan, but rather stays the 
district court's decision on the merits and its 
approval of the plan.

Clarely nothing is "guaranteed" when dealing 
with people's voting behavior. In vote dilution 
cases, however, given a history of racially 
polarized voting, a seat is considered to be 
"guaranteed" minority position if over 50? of the 
citizens eligible to vote in the district are 
members of the given minority.

15/
That statistic assumes the minority population 
is unable to elect an at-large council member. 
Of course, the presence of three at-large seats 
does give the minority population a voice in 
three representatives in addition to the two who 
come from districts populated by minorities.

16/
The district with the largest population had 
105,759 people whereas the least populated dis­
trict had 105,353 people. 399 F.Supp. at 795.

17/
Blacks comprised 19-4? of the population and 
Mexican-Americans comprised 8.7?.



20a

At the heart of the plaintiffs' complaint is a 
fear that the plan, which permits a 33% minority 
to elect 43$ of the single-member district seats, 
is incapable of repetition. We agree that it may 
be difficult to repeat. However, we cannot 
invalidate an otherwise acceptable plan because 
of what might be a problem in the future. 
Furthermore, Judge Arnow has placed Pensacola 
under §3 of the Voting Rights Act for a period of 
five years unless it is shortened or extended by 
the court. Thus, the district court has super­
visory control over future reapportionments and 
can assure that, at least for five years, the 
apportionment will be done so as to give the 
minority population a fair number of represen­
tatives.

Neither party, however, contends the devi­
ation is too great.



- 21a -

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

October Term, 19

No. 79-1633

D.C. Docket No. 77-0433 
ELMER JENKINS, ET AL. ,

Plaintiffs-Appellants, 
versus

CITY OF PENSACOLA, ET AL.,
Defendants-Appellees.

Appeal from the United States District Court for 
the Northern District of Florida

Before COLEMAN, Circuit Judge, PECK*, and 
KRAVITCH, Circuit Judges.

J U D G M E N T
This cause came on to be heard on the tran­

script of the record from the United States District 
Court for the Northern District of Florida, ans was 
argued by counsel;

ON CONSIDERATION WHEREOF, It is now here or­
dered and adjudged by this Court that the order of 
the District Court appealed from, in this cause, be,



- 22a -

and the same is hereby, affirmed and the stay of all 
elections granted by this Court on March 10, 1980, is 
hereby dissolved;

IT IS FURTHER ORDERED that the plaintiffs- 
appellants pay to the defendants-appellees the costs 
on appeal, to be taxed by the Clerk of this Court.

February 19, 1981

ISSUED AS MANDATE: By____________ _
Deputy Clerk 

Atlanta, Ga. *

* Senior Circuit Judge for the Sixth Circuit,
sitting by designation.



- 23a -
IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

ELMER JENKINS, et al.,
Plaintiffs PCA NO. 77-0433

v s .

CITY OF PENSACOLA, et al.,
Defendants.

MEMORANDUM DECISION

Counsel for Plaintiffs: James U. Blacksher, Esquire
Larry T. Nenefee, Esquire 
1407 Davis Avenue 
Mobile, Alabama 36603

Kent Spriggs, Esquire 
324 West College Avenue 
Tallahassee, Florida 32301

Jack Greenberg, Esquire 
Eric Schnapper, Esquire 
Suite 2030,
10 Columbus Circle 
New York, New York 10010

Edward Still, Esquire 
601 Title Building 
Birmingham, Alabama 35203

Counsel for Defendants: Don J. Caton, Esquire
City Attorney
Post Office Box 12910
Pensacola, Florida 32521



- 24a -

Charles S. Rhyne, Esquire 
William S. Rhyne, Esquire 
Donald A. Carr, Esquire 
1000 Connecticut Ave., N.W. 
Suite 800
Washington, D.C. 20036

A hearing was held on the proposed redistricting 
plan of the City of Pensacola on Tuesday, November 
21, 1978. The Court received evidence from both
parties and finds as follows:

The proposed plan of the Defendant, City, which 
is a revision from the original plan submitted to the 
Court, is based upon the 1970 Federal census. The 
plan includes three districts where there is a 
majority of black citizens and black registered 
voters, thus affording what the Court views to be 
fair and roughly proportional representation for the 
black community consistent with constitutionally 
acceptable standards. This plan discharges the 
City’s legislative responsibility to provide an 
adequate remedy for the dilution of black voting 
strengths which the Court found to exist in the total 
at-large system heretofore maintained. The three at- 
large seats retained in the new plan will not dilute 
black voting strength. Indeed, these seats will 
afford the black community an extra measure of



-25a -

strength which they would not have in a total single­
district system as well as provide for the legitimate 
interest in City Council members who have a City-wide 
perspective and responsibility.

The evidence shows that the 7-3 plan (7 single 
tionally acceptable plan and that a better 7-3 plan 
cannot be prepared without sacrificing the legiti­
mate state concerns of better and more fair 7-3 plan 
cannot be prepared although they prefer a ten single­
member district plan since they did propose such a 
plan to the Court. The approximate 14? deviation 
from the one-person one-vote ideal standard that 
exists in the plan is a necessary result in order to 
provide three districts where there is a majority of 
black citizend and black registered voters and to 
prevent undue distortion of precinct lines and con­
tiguity, which is a legitimate state concern of the 
defendant, City. To the extent that there is a 
maximum population deviation of approximately 14?, 
this deviation is to the advantage of the black 
community.

The Court rejects plaintiffs' argument that 
the defendants' legislative discretion involved in 
the submission of a 7-3 plan should be overturned 
merely because the prospect of re-apportionment in 
future years may or may not alter the composition of 
the districts, and in particular, the three black 
majority districts.



-26a -

Under the thrust of Wise v. Lipscomb, 98 S. Ct. 
2493 (1978), the Defendant's, City's plan will be in 
effect without the necessity of compliance with the 
referendum requirements and entitled to be consider­
ed by this Court as a legislative plan.

The Court hereby directs the Defendant, City of 
Pensacola, to take all necessary and proper steps to 
formally implement the plan submitted to the Court in 
its regular course of business and to submit this 
plan back to the Court after taking all such neces­
sary steps. The Court will enter its Final Order 
approving the plan at that time.

Dated this 27 day of December, 1978.

/s/Winston E. Arnow
Chief Judge



-27a -

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ELMER JENKINS, et al.,

v s .

CITY OF PENSACOLA, et al.,

Defendants.

J U D G M E N T

Pursuant to and in accordance with 
Memorandum
Decision of this date, it is,

ORDERED AND ADJUDGED as follows:
1. Judgment is hereby entered in favor of 

plaintiffs and against the defendants, with 
costs taxed against the defendants.

2. Within 45 days after this date, the 
parties will submit proposals that they believe 
provide an effective remedy for the dilution 
found by the court to exist.

3. The remedial system, as finally approved 
and adopted by this court, will become effective 
for the next ensuing city council election which 
will occur in the year 1979.

4. This court retains jurisdiction for all 
necessary or proper purposes, including but not



-28a -

limited to determination of the plaintiffs’ claim for 
attorneys' fees after hearing thereon.

5 = Pursuant to 28 U.S.C. § 1292(b), the court 
finds that the judgment here entered involves a 
controlling question of law as to which there is a 
substantial ground for difference of opinion and that 
an immediate appeal from the order may materially 
advance the ultimate decision of the litigation.

DONE AND ORDERED this 10 day of July , 1978.

WINSTON E. ARNOW 
Chief Judge



-29a -

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ELMER JENKINS, et al.,
Plaintiffs PCA NO. 77-0433

vs.

CITY OF PENSACOLA, et al.,
Defendants.

O R D E R

Before the court is pleading styled "submittal 
of Final Plan" by which the defendant, City of 
Pensacola, has, pursuant to this court's Memorandum 
Decision, dated December 27, 1978, submitted its 
final redistricting plan.

The pleading advises the plan was formally 
adopted by Ordinance No. 3-79 of defendant, City of 
Pensacola, with final reading thereof being on Thurs­
day, January 11, 1979- The request is made that the 
court now enter final order approving such plan. By 
its Memorandum Decision of December 27, 1978, this 
defendant was directed to submit back to the court 
this plan after it had taken all necessary steps to 
formally implement it and that, upon its doing so, 
the court would enter its final order approving the 
plan.



-30a -

It appears to the court, and the court that 
such plan as set forth in the ordinance, copy of 
which is attached to the pleading, does present in 
final form the plan previously submitted to this 
court and approved by it.

Accordingly, it is ORDERED:
The final redistricting plan adopted by this 

defendant, City of Pensacola, as shown and reflected 
by the copy of its Ordinance No. 3=79 attached to 
such pleading, should be and the same is hereby 
approved.

DONE AND ORDERED THIS 23rd day of January,
1979.

/s/Winston E. Arnow
Chief Judge



MEIIEN PRESS INC. — N. Y. C. - & M *- 219