Velasquez v. City of Abilene Court Opinion
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March 2, 1984

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Case Files, Thornburg v. Gingles Working Files - Schnapper. Velasquez v. City of Abilene Court Opinion, 1984. a745b9d0-e292-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ba98bcf3-f709-4d50-9c96-e069d7ecdd30/velasquez-v-city-of-abilene-court-opinion. Accessed May 14, 2025.
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\ '. YEII\SQUE? .v.'CITY OF ABILENE, TIIL Ctt r!ZttFJd t0l7 (tO&l) ---.-.--'') 1017 ia diveraity, we can confi{ently 88y that memhrs, the United States Dstrict Court Section 11-'8-23 bears the proper "subsl,an- for the Northern Distriet of. Texas at Abi- tive" credentials and may accordingly eirter lene, Halbert O. Woodward, Chief Judge, the aanctuary of this forum. Prcet'or v. entercd judgment fiom which plaintiffs ap Giwndaner, 587 F.2d 182, 183 (5th cir. peald, and the defendant city cross-appeal- 19?9). ed from denia"l of attorney fees. The Court We regard the question of which appeals of Appeals, Garza, Circuit Judge, held that: are within the new increase of the penalty (1) although trial court in resolving claim from 5% no l5% to be a question of purely that Voting Rights Act was violated was stste law. The Mississippi Supreme Court not required to recount and discuss every has answercd that the lSVo rate, which took bit of evidence offered to it, it was rcquired effect on July 1, 1980, applies to appeals of b discuss all substantial evidence contrary judgments rcndered on or after that date. b its opinion, and because both constitu- Because the judgments in this sase were tional and statutory claims of the plaintiffs rendered on May 2, 1979, and the decision to involved extraordinary facLoriented issues, appeal or not appeal could have been made and because district court failed to take at that time, the 57o penalty applies to both note of substantial contrary evidence judqne-nts' - Accodingly, the case is re- presented by plaintiffs, there was failure to manded to the District Court for entry of make, detaiied findings of fact as required judgment in accotdance with this opinion'6 by rule; (2) racial discrimination need only REVERSED AND REMANDED. be one purpose, and not even primary pur- pose, of official act in otder for violation of ,/fE'L- Fourteenth and Fifteenth Amendments to qyW occur; and (B) new amendments to Voting Rights Act werc meant to reinstate results test, as against contention that the Maria VELASQUEZ, Iesiah Moreland, amendments did not eliminate intent re- Amelia Aguirre Ben Aguirre, and John quirement but instead merely eliminated DtcCowerU Individually and on behalf of need to find direct evidence of diseriminato- rll Blsck and Mexican-American Citi- ry intent. zene of the City of Abilene, Texas, Affirmed in part and remanded for Plaintiffs-Appellants, further findings of facL and conclusions of Y. lau'. The CITY OF ABILENE, TEXAS, E. Hall, Patrick E. Higginbotham, Circuit B. Proctor, K lVebster, LD. Hilton' J. Judge, concurred and filed opinion. Bridges, A.E. Fogle, Jr, and J. Rodri- Brez, the Mayor and City Councilmen of the City of Abilene, Texas, all in their l. Federal Courts *774 official capacities, Defendants-Appel- Where plaintiffs'complaint included al- lc€s" legations of constitutional violations as well No. 82-1630. as statutory violations, plaintiffs could not United States C,ourt of Appeals, be heard to complain that trial court could Fifth Circuit. have decided case upon statutory grounds March 2, 1g84. alone and thereforc irnproperly decided case upon constitutional grounds. Rehearing Denied March 29, 1984. 2. Elections e=12 In a challenge to an at-large election In voting dilution cases, many ques- system for selection of Abilene city council tions asked to determine whether there has 0, We have granted the motion suggesting the ters. ,1-r.'r'equesting substitution of her heirs as death of plaintiff-appellant, Mrs. Delphia Wal- panri: 10r8 been statutory violation are also asked when constitutional violation claim is evalu- ated, and thus trial court can consider both constitutional and statutory claims togeth- er. Voting Rights Act of 19&5, $ 2, as amended,42 U.S.C.A. S l9?3. 3. Federal Courts e=855 Clearly erroneous standard is applica- ble in both constitutional and statutory vot- ing dilution cases. Voting Rights Act of 1965, S 2, as amended, 42 U.S.C.A. S 1973; 42 U.S.C.A. S 1971 et seq.; Fed.Rules Civ. Proc.Rule 52(a), % U.S.C.A. 4. Federal Courts €=941 Although trial court in resolving claim that Voting Rights Act was violated was not required to recount and discuss every bit of evidence offered to it, it was required to discuss all substantial evidence contrary to its opinion, and because both constitu- tional and statutory claims of the plaintiffs involved extraordinary fact-oriented issues, and Because district court failed to take note of substantial contrary evidence presented by plaintiffs, there was failure to make detailed findings of fact as required by rule, and remand was necessary. Voting Rights Act of 1965, $ 2, as amended, 42 U.S.C.A. $ 1973; 42 U.S.C.A. $ 1971 et seq.; Fed.Rules Civ.Proc.Rule 52(a), 28 U.S. C.A.; U.S.C.A. Const.Amends. 14, 15. 5. Elections e12 In amending Voting Rights Act in 1982, Congress intended to }ighten burden of plaintiffs in voting dilution cases. Vot- ing Rights Act of 1965, S 2, as amended, 42 u.s.c.A. s 1973. 6. Constitutional l,aw e2l5 Elections e12 Racial discrimination need only be one purpose, and not even primary purpose, of official act in order for violation of Four- teenth and Fifteenth Amendments to occur. Voting Rights Act of 1965, $ 2, as amended, 42 U.S.C.A. S 1973. 7. Municipal Corporations e80 In suit to challenge at-large election system for selection of city council mem- bers, certain evidence, including testimc'nv .a 725 FEDERAL REPORTER,2d SERIES by one plaintiff that he and his family suffered continuous threats and abuses while and after his wife sought election to city council and testimony of another plain- tiff that she encountered hostility and un- cooperation from county clerk's office in the city when she attempted to file as candidate for justice of the peace in 19?6 and for county clerk in 1978 was relevant and sub- stantial in light of factors to be considered by the court. Voting Rights Act of 1965, $ 2, as amended, 42 U.S.C.A. S f973. 8. Elections c=12 New amendments to Voting Rights Act were meant to reinstale results test, as against conlpntion that the amendments did not eliminate intent requirement but in- stead merely eliminated need b: find direct evidence of discriminatory intent. Voting Rights Act of 1965, S 2, as amended, 42 u.s.c.A. s 1e73. 9. Elections el2 In challenge to voting system under Voting Rights Act, as in cases under Four- teenth and Fifteenth Amendments, trial judge is to make his ultimate ruling after examination of "totalitl' of cirncumstances." Voting Rights Act of 1965, $ 2, as amended, 42 U.S.C.A. S 1973. 10. Federal Civil Procedure €-2737 Accepted rule u'hich allou's attorney fees to be awarded to prevailing defendants where plaintiffs' suit is frivolous is proper rule, and fees are not to be granted mertrly because defendant prevails. William L. Garrett, Dallas, Tex., Gale Patterson, Fort Worth, Tex., for plaintiffs- appellants. Harvey Cargill, Jr., City Atty., Gary Lan- den, John T. Patterson, Kardh L. Anderson, Asst. City Attys., Abilene, Tex., for defend- anLs-appellees. Appeals from the United States District Court for the Northern District of Texas. Bcfort GARZA, \\'li,i.iA1{S and HIG- GINii()THAM, Circui,,li,ilse". GA] We tiffs-a icans) declar illeCir for se bers r Amen 1978, oourt, memo cr0B8-i for at Abt From at larl time t Taylor wa,rd, Atton were egrce( passd Abilen city a contin 1962 , contin also a Und are sl counci must r stagge each X Three eide oI tlte m: city. Blac tion c constit ooncen tiffs' r would tion o Mexic: the cor S.,led - -rrfl* ir GARZA, Cirtuit Judge: I SIe have before us an appeal by plain- tiffs-appellants (Blacks and Mexican-Amer' icans) fmm the denial of their petition for declaratory judgment and other relief alleging that the at-large election system for s€lection of Abilene City C,ouncil mem- bers violates the Fourteenth and Fifteenth Amendments, as well as 42 U.S.C. SS 1971, 1973, 1983 and 1988. The trial was to the court, which made extensive findings in a memorandum opinion. The City of Abilene crcss-appeals from the denial of its motion for attorneys fees. Abilene was organized as a city in 1885. From 1890 to 1892 aldermen were elected atJarge. In 1893 and 1894, at the same time that the Populist Party appeared in Taylor C,ounty challenging the democrats, ward elections were held. After the Texas Attorney General ruled that ward elections were un@nstitutional and a Texas court agreed, and after the Texas legislature had passed an act requiring city-wide elections, Abilene rcverted to at-large elections. The city adopted a home rule charter in 1911, continuing the atJarge election system. In 1962 Abilene adopted its present charter, continuing an atJarge election scheme and also adding a majority vote requirement. Under the present atJarge system there are six (6) councilmen and a mayor. The oouncilmen each run for a specific seat and must win by a majority vote. Elections are staggered, with two (2) councilmen elected each year and the mayor every third year. Three councilmen must live on the north side of the city, three on the south side, and the mayor may reside anywhere within the city. Blacks make up 6.7 pereent of the popula- tion of Abilene and Mexican-Americans constitute 12.6 percent. Both g"oups are concentrated in one area. Under the plain- tiffs' proposed election system, minorities would constitute 48.3 percent of the popula- tion of one district. One Black and two Mexican-Americans have been elected to the council since 1973. All three were spon- sored by the Citizens for Better Govern- ment, a white-anglo dominated slating or- - VEII\SQUEZ v CIfI OF ABILENE, TEX. l CIt 8lil$Frd lot? (lS{) 1019 ganization which exercises n&rly complete control over Abilene City politics through its endonement and support of candidates. The Citizens for Better Government, CBG hercafter, has had a success rate of 92.5 percent since 1966 and 100 percent since 1974. The record shows that no indepen- dent Black or Mexican-American has ever been elected, although several have run un- successfully. The minority voters have alleged that the at-large system of elections unconstitution- ally dilutes their voting strength. Such di- lution is said to be caused by their lack of access to the political system, the laek of responsiveness of the city to their particu- larized needs, the state policy favoring mul- ti-member districts, and the continuing ef- fects of general and official racial discrimi- nation. They also allege that the structural devices of large voting districts labking a minority vote and an anti-single shot voting requirement, and a modified district resi- dency voting requirement, enhance the op portunity for their votes to be diluted. Appellants also allege that while it is true that one Black and two Mexican-Americans have been elected to the council since 1973, all three were sponsored by CBG and those elected were mere tokens put forward by a slating organization in which minorities have no real influence under the current system. The court below concluded that there wa-s no invidious purpose behind the adoption of the atJarge election scheme at any of the dates of its adoption. The trial court exam- ined the evidence according to the Zimmer factors, Zimmer v. McKeithen, €5 F.2d 129? (5th Cir.1973), affd on other grounds sub nom., East Carroll Parish School Bd. v. Marchall, 42i1 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.zd 296 (1976), to determine if there was sufficient circumstantial evidence to demonstrate an invidious purpose behind the maintenance of the system. It eonclud- ed there was no such invidious purpose. Finally, the court found that although the Voting Rights Act amendments of 1982,42 U.S.C.A. S 1973 (West Supp.1983), abol- ished any necessity to prove a discriminato- 1020 ry purpose in order to establish a violation, the atJarge election scheme in Abilene did not have a discriminatorY effect. Appellants' principal attacks on the judg- ment of dismissal by the court below are: (1) that the trial court improperly decided the case upon constitutional gtounds when it could have decided the same on statutory grounds alone; (2) that the trial court failed to make detailed findings of fact in its resolution of the minority voters'Voting Bights Act claim, as required by Rule 52(a) F.R.C.P.; and (3) that the trial court did not use the correct standard of proof to decide that there was no violation of the Voting Rights Act. U,2l Plaintiffs-appellants' argument that the trial court improperly decided the cas€ upon constitutional grounds is unmeri- torious for a variety of reasons. First, plaintiffs have not shown that the trial court cciuld properly have decided the case on statutory grounds alone' Second, plain- tiffs'complaint included allegations of con- stitutional violations as well as statutory violations; plaintiffs cannot now be heard to complain that the trial judge addressed those allegations. Finally, in voting dilu- tion cases many of the questions asked to determine whether there has been a statu- tory violation are also asked when a consti- tutional violation claim is evaluated. We see no reason why in voting dilution cases, in light of the interrelated standards, a trial court cannot consider both the constitution- al and statutor)' claims together. Plain- tiffs-appellants' first attack on the judg- ment below must therefore be rejected' [3,4] After reading the record we find merit in plaintiffs-appellants' charge that the trial court failed to make detailed find- ings of fact in its resolution of their claim that the Voting Rights Act, as amended in 1982, was violated. Although the trial court is not required to recount and discuss every bit of evidence offered to it, it is required to discus: all the substantial evidence contrarl' to irs c1 rr rlorr. The trial court offercd a fairlv i;, :rgh analysis, but did not discuss aii tht .' .. -!!n' ?25 FEDERAJ^hEPORTER, 2d SERIES t. tial contrary evidence. In Crms v. Baxter, 604 F.zd 8?5 (5th Cir.1979), vauted on oth' er grounds,704F*J 143.(5th Cir.1983), this cirJuit discussed the need for detailed find- ings of fact in voting dilution cases: F.R.C.P. 54a) requires the district court to make findings of fact and conclu- sions of law in deciding all cases tried without a jury, and these must be suffi- ciently detailed that the court of appeals can ascertain the factual and legal basis for the district court's ultimate conclu' sion. Beeause the resolution of a voting dilution claim requires close analysis of unusually complex factual patterns, and because the decision of such a case has the potential for serious interference with state functions, we have strictly adhered to the rule 52(a) requirements in voting dilution cases and have required district courts to explain with particularity their reasoning and the subsidiary factual con- clusions underlying their reasoning. '[C]onclusory findings as to each of the Zimmer criteria are no more helpful than an overall conclusory finding of dilution. The factual predicates for such conclu- sions must be clearly stated by the trial @urt.' Perhaps in no other area of the law is as much specificity in reasoning and fact finding required, as shown by our frequent remands of voting dilution cases to district courts. As a general rule, if the district court reaches a conclu- sion on one of the Zimmer inquiries with- out discussing substantial rclevant enn- trary evidence, the requirements of rule 52 have not been met and a remand maY be called for if the court's conclusions on the other Zimmer inquiries are not suffi- cient to support a judgment. Id. at 879 (citations omitted). A close reading of the briels submitted by the parties indicates that none of the law on any issue in this case is in real controversy. Both the constitutional and statutory claims of the plaintiffs below in- volve extraordinary fact+riented issues. The district court's factual findings in vot- ing dilution cases represent "a blend of history and an intensely local appraisal of the design and impact of the - . . multi- member prcsent fiihitn v. s.ct.288 Supreme finding r sary in Fourteet under th governe( standari 102 S.Ct have no natory t Rights I erned b and whi tion casr and faet ous stan ment. applicah tory vot The o and det: invulner ever, be substanl the apE case for the cour dence st ty, but silent n court tx t5l I the Vot the Su1 Mobile 1490, 64 that a r strengtl of discr 1982 a: pur?ose and sul under t stated amendr Thr *,ctir ,,.;fua .. membr district in thqlight of past and prcaent neality, political and othprwise." Whitn v. fugestcr,4lz U.S. ?55, 769-?0, gB s.ct.288a 284L,37 L.Ed.2d 814 (r9?3). The Supreme Court has squarely held that the finding of intentional discrimination neces- sary in voting dilution cases under the Fourteenth Amendment, and by implication under the Fifteenth Amendment, is factual, governed by Rule 52's clearly ernoneous standard. Rogers v. Ladge,458 U.S. OlB, 102 s.ct. 3n2,73 L.Ed.zd 1012 (1982). We have no doubt that the finding of discrimi- natory effect or result under the Voting Rights Act amendments of 1982 is also gov- erned by the clearly erroneous standard, and while appellants try to argue that dilu- tion cases involve a mixed question of law and fact not governed by the clearly errone- ous standard, we cannot embrace this argu- ment. The clearly erroneous standard is applicable in both constitutional and statu- tory voting dilution cases. The opinion of the court below is Iong and detailed and at first blush seems fairly invulnerable to a Rule 52(a) attack. How- ever, because of its failure to take note of substantial contrary evidence presented by the appellants, it is necessary to remand the case for further findings. It may be that the eourt below did not consider such evi- dence substantial or did not credit its validi- ty, but we are unable to determine from a silent r€cord the thought processes of the court below. t5l In passing the 1982 amendment to the Voting Rights Act, Congress reacted to the Supreme C,ourt's decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.zd 4? (1980), which had held that a claim of dilution of minority voting strcngth could succeed only upon a showing of discriminatory purpose. By passing the 1982 amendment, Congress rejected the pur?ose standard in voting dilution claims and substituted in its place a results test under the totality of the circumstances. As stated in the Senate Report on the amendments: The amendment kr the language of Section 2 is designerl to make clt,ar thai i*- \ VEI/ISQIIEZ v. CITY OF AEILENE, TEX. Cltc rs 7il5 Frd l0l7 (1984) -.-*r. F-'' , m2rI b,L li F. I F F F t" b l. l- rI I I I I t plaintiffs need not pro\re a discriminatory purpose in the adoptipn or maintenance of the challenged system of [sic] practice in order to establish a violation. Plain- tiffs must either prnove such intent, or, alternafively, must show that the chal- lenged system or practice, in the context of all the circumstances in the jurisdiction in question, results in minorities being denied equal aocess to the political pro- cess. S.Rep. No. 477, 97Lh Cong., 2d Sess., rc- printnd in 1982 U.S.Code Cong. & Ad.News 177,m5. It is clear that Congress intended to lighten the burden of plaintiffs in voting dilution cases. We are being asked to write on a clean slate under this standard. If under the intentional discriminatory purpose standard we required detailed findings of all relevant substantial evidence, we certainly should require no less under the results test when deciding whether there has been a Voting Rights Act violation. The court below held that the decision of the citizens of Abilene "to perpetuate the at-large scheme, as provided in the 1911 and 1962 city charters, was a conscientious deci- sion made on the basis of available data and reflective of the pervasive political theory of the time." (Memorandum Opinion at 27). With regards to the 1962 adoption of the at-large election scheme, plaintiffs ar- gue with some merit that more should have been said about this event, which not only continued the at-large election scheme but also added a majority vote requir.emenl t6l A fact completely ignored by the court below was the plaintiffs' evidence about the extreme level of racial tension during the time period of the 1962 charter amendments, as well as evidence that it was well known at the time that atJarge elec- tions, majority vo& requirements, and stag- gered terms tended to dilute minority vot- ing power. There was also evidence presented that the chairman of the Charter Commission, during the 1962 charter elec- tion, stated that one of the reasons for the adoption of the maiorit.l' votc r,.,r:uircment was to insure a minoritl' euulrl rrli gain \ ..*.. _ t022 control of the city government. Record, vol. 6 at 605. Defendants contend, how- ever, that this stat€ment in context re- ferred only to a minority in the abstract political theory sense rather than in a racial sense. The court below, however, failed to discuss this evidence in any of its findings. While the district court may be correct in its finding that the city in 1962 adopted aLlarge elections only for reasons having to do with political theory, we think a more detailed discussion of its 1962 adoption of the atJalge system would have been wise. Certainly the addition of the majority vote requirement indicates that the city did not unthinkingly continue its old at-large sys- tem. We are all aware that in 1962 there was much racial tension and that a racially discriminatory purpose may well have coex- isted with political theorf in the adoption of the atJarge system at that time. Racial discrimination need only be one purpose, and not even a PrimarY PurPose, of an offiCial act in order for a violation of the Fourteenth and the Fifteenth Amendments to occur. ke Arlington Heights v. Metro- politan Housing Corp., 4N U.S. 252 at 265, 9? S.Ct. 555 at 563, 50 L.Ed.zd 450 (i977)' We see no reason why under the amended Voting Rights Act of 1982 this would not be even mone so. The most important of piaintiffs-appel- lanls' argument is that the court erred in its treatment of whether minorities have equal access to the political process, and in particular the slating process. The CBG, as stated, effectively controls Abilene politics. and it follows that this access factor is the key in an analysis of vote dilution in Abi- lene. Although the trial court found that the CBG was "whitedominated," the court found minorities had ample opJnrtunities to participate in the CBG. The court below l. "The fact that no members of a minority group have been elected to office over an ex- iended period of time is probative. However, the election of a few minority candidates does not 'necessarily foreclose the possibility of dilu- tion of the black vote', in violation of this section. Zimmer 485 F.2d at 1307. If it did' the possibility exists that the majoritl'citizens might evade the section e.g., by manipulating thJ election of a 'safe' minority candidate' .- ?25 FEDERAL REPORTER, 2d SERIES hpld that there were no structural [arriers to participation and pointed to the support of three minority candidates by the CBG that were elected to the Abilene City Coun- cil. Plaintiffs argue'that the court below neglected to discuss evidence that presented structural barriers. Although there was ev- idence that anyone can attend and vote at CBG's meetings, and that there is a nomi- nating committee which at one time had a minority member, there was evidence that this nominating committee only makes rec- ommendations, which can be rejected by the executive committee. In the Senate Report regarding the 1982 amendments to the Vot- ing Rights Act, it was specifically noted that the mere election of a few minority candidates was not sufficient to bar a find- ing of voting dilution under the results test.l t?l Under the totalitl' of the circum- stances results test adopted by the Con- gress, the court below failed to mention any of the evidence presented by the plaintiffs that the minoritl' candidates slated by CBG were not true reprcsentatives of the minori- ty population in the city of Abilene. The court failed to mention much of the evi- dence of polarized voting, block voting, ef- fects of past discrimination, and discrimina- tory intent in maintaining the atJarge sys- tem. For exaniple, sociologist Dr. Chandler Davidson testified regarding studies he con- ducted which indiorted some 14 instances of what he considered to be polarized voting in Abilene area elections from 1956 through 1981. Record, vol. 6 at 510-35. Dr. Chan- dler also stated his opinion that Abilene's adoption in 1962 of the majority-vote re- quirement was partially motivated Uy 1 d9- sire to dilute the votes of Blacks and Mexi- can-Americans. Id. at 593-94. Plaintiff Ben Aguirre testified that he and. his family 'Were we to hold that a minority candidate's success at the polls is conclusive proof of a rrinorit)'group's access to the political process' we would merely be inviting attempts to cir- cumvent the Constitution . . . Instead we shall continue to require an independent considera- tion of the t"coid ' Ibid." S.Rep No. 417, 97th Cong., 2d Sess., repinted ir; l9t? U S Code Cong. & Ad.t.Neq's li7,201 euffe ing Agni Cour Vela ooun the ( she Jugti Clerl denc light ootrr @ur T} sionr oonS whe 8U88 fact for dete discr ing TI shot the we shor by, tr 8mt not inst dir€ Thir The lr Re1 sull inl For trir aft/ Eln( sult cur ind fer V(l'. t' VELASQUEZ vlCITY OF ABILENE, TEIL clr.rr7:16Frd l0l7 (ltt{) i. 1023 ruffered continuous thrests and abuses dur- plaintiffs to prove a dilution of the votes of iog "na after his wife, plaintiff Amelia minorities under t}re totality of the circum- .lirirt", sought election ioitre .l,Uitene City stances results test, especially by a showing Co-uncil,'nd"a, vol. 5 at 8G6?; plaintiff of their lack of access to the political pro- Velasquez offered evidence that ihe en- oess. It is much easier to find a single cornte""a hostility and uncooperation from effect than to find a discriminatory purpose the county clerk-'s office in Abilene when behind that effecl she attempted to file as a candidate for The court below correctly noted that Justice of the Peace in 19?6 and for crcunty proof of intent is not required under the Clerk in 1978' Id' at 3?6-80' This evi- statutory claim of the plaintiffs-appellants'. dence, certainly rclevant and substantial in However, it failed to state that it is easier light of the factors to be considered by the to prove effects than it is to prove intent' durt, went without mention by the trial The court below did not detail its finding-s court. of voting dilution under the statutory claim The court below did support its conclu- of the plaintiffs-appellants, but assumed aions, but did not indicate whether he had that its findings on intentional discrimina- considered ertain of plaintiffs' evidence or tory purpose would suffice under the Vot- whether he simply did not consider it per- ing Rights Act. since it is easier under the sussive. without the additional findings of voting Rights Act to Dnove an effect than factcalledforonremand,thereisnowayanintent,thecourtbelowdidnotapplythe for this court to tell whether the court's correct standard in its resolution of the determination that there is no effect of easie' It is possible that further findings discriminstion which would violate the vot- would make a difference in the final conclu- ing Rights Aet is clearly erroneous. sions of the court below' We do not intimate what the final result tl0] Defendants' cross appeal on the should be, but as for an alleged violation of failure to receive attoraeys' fees is com- the voting Rights Act, as amended in 1982, pletely without merit, The accepted mle we should not write until the court below which allows attorneys fees to be awarded shows that it considered all of the evidence to prevailing defendants where plaintiffs' by discussing the same in full. suit is frivolous, christiansbwg Garment l8l Defendants arsue that the new ?.&:'#^,';d,'uf?#^"i;ii3;ff1'l amendments to the Voting Rights Act do proper rule. The defendants'proposed rule, not eliminate an intent rcquirement but which would grant attorneys fees if the inst€ad merely eliminate a need to find defendant prevails, would have a chilling direct evidence of discriminatory intent. effect on suits to redress constitutional vio- This argument is absolutely without merit. lations that would be disastrous. The fail- The Senate Report makes clear the ure of the court to grant defendants attor- amendments were meant to reinstate a re- neys fees was conect and is affirmed. sults test. AFFIRMED IN 'ART and REMANDED tgl The factors laid out in the Senate FOR FURTHER, FINDINGS OF FACT n"p"* for showing a violation of the re- AND CONCLUSIONS OF LAW IN AG sults t€st are essentially the same factorc as ooRDANCE WITH THIS OPINION' in Zimmer. Further, as in cases under the Fourteenth and Fifteenth Amendments, a PATRICK E' HIGGINBOTHAM' Circuit trial judge is to make his ultimate ruling Judge' concurring: after-eximinatior-. of the "totality of cir- I write separately not to suggest any cumstan@s." \\-hile the resolution of each inadequacy in the majority opinion but to individual Zimn,.' iaetor might not be dif- add a parenthetical thought not essential to fercnt under 1,.ri-.i'.u1iensl and statutory its holding. In candor, we ane yet to give -.:-- r:r..+i^- arcinc ii ic rnrrah eerier for the digtrict orf,ts adequate gUidance in the \- LO124 ?25 FEDERAL REPORTEB', 2d SERIES applicationoftheamendedVotingRiglr.tsedinAdapulco,Mexico'TheUnitedStates Act, for we have oot y"ilutty a"iiiuO ;ai.- District Court for the Northern District of crimination,, as the term ir ir*a in voting Texas, Robert W. Porter, J', entered judg- rights cases. For examfle, the^ tension be- ment in favor of vendor' and brcker's estate #; ; itpact-based'test of lawfulness appealed' The court of Appeals' Garza' ""a-" i":*tion of a right to proportional Circuit Judge, held that: (1) under Texas ,.p."r"nt tion defies easy resolution. C,on- law, letter/memorandum sent by real estate stitutional limitations on the congressional broku. to vendor's employee in which bro- enforcement porfler are in turn left ambigu- ker requested an extension of his authority ous by this blurring of the definitional con- ; Ji hotel coupled with bmker's parol n:l ::*xl'};Tl"ifiil r::li""l;; ""]:ii *** ,*I?t :ffiiH**: ff i[,": name of "error" for more detailed factual determinations. without a measure of rel- of Texas Real Estate License Act; (2) re- ev&nce,theresolutionoffactualdisputesgardlessofwhethera'settlementoffercon- suffers the weakness of being largely air- Ititrtud binding admission under substan- borne. ur wrtr. rs'l6vrJ e" tive Mexican law' vendor's settlement offer Furthermore, I fear the ider that each to broker was inadmissible; and (3) regard- genreofcasescarriesitsownRuleS}root-lessofcharacterizationofparties'agree- ed requirement of ,polli"ity' iarticu.larly' ment under Mexican law' broker was not Ifearthatthisideamaytakeholdandentitled.to,at""':-:1:"commissionsincehe grow as an independer;;p"il"t" prineiple. was not the procuring cause of the sale. bespite these concerns, I agree that this Affirmed. case'should be remanded, because our ef- forLs to develop the meaning and constitu-- tional limits of th" Voting Rights Act with its 1982 amendment ;iiifu frere aided by l. Federar courts e-409 the greater detail. I;;;;;ittit t"'una.it When' in a conflicts case' a question impelled more by oot-L*n tt"uggle than- by arises as to which substantive state law "n;-;; ,,, of the district *u.t "" thut should be applied, a federal court must ap- ,uJra i. ,rr"lly used. ply the -nfli"t-uf-luws rule of the state in which it is sitting' {. BroLerr Under sent by ru ployee in r eion of his coupled wit not eufficit ststute of &tate Lis Civ.St. art. 5. Eatoppe Vendo: from asser of Texas l brought to of a hotel Civ.St art 6. Federd Althor another le' officials oI mitted in r mission or corporatio: harmless t a direct r forts in c( by parent 7. Eviden Regar fer const subetantir ment offr ne@ver a a hotpl lo Bule 4(8, 8. Broker Rega ties'qgre was not e following was not 9. Broke Real curing o parcnt cc property titled ':,c W'ineton S. MORRIS, Executor of the Estate of Robert TaYlor Morris' Deceased, Plaintiff 'APPellant v. The LTY CORPORATION, Defendant'APPellee' No. 82-1715' United States Court of APPeals' Fifth Circuit' March 2, 19M' Suit was brought to recover a renl es- tate commission on the salt' of a hr"'Ll l"li't- 2. 6.1iqn @17 General conflict-of-laws rule in Texas is that questions of substantive law are controlled by the laws of the state wherc the cause oi action arose, but matters of remedy and of procedure are governed b-r' the laws of the state where the action is sought to be maintained' S. Federal Courts e410 , Texas courts characterization of stat- ute of frauds prol'ision of Texas Real Es- tate License Act as procedural for conflicls- ofJaw purynses was conclusive on federal court; ihu.s, the statute was applicable in suit to re('oler real estate commission on tiu *ni. r-rf a hotel in Mexico' \ternon's Ann.T,.'.\a' [,'jr'.St. art. 6573a, S 20(b)'