Velasquez v. City of Abilene Court Opinion

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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

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Amen
1978,

oourt,
memo
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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.

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tion c

constit
ooncen

tiffs' r

would
tion o

Mexic:
the cor
S.,led

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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
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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

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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)

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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

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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)'