Taylor v. Haywood County Court Opinion

    '-"'--
* ,,,"*AL SUPPLEMENTtt22

ees. However, the Court concludes that
plaintiffs are not entitl'ed to a permanent

injunction prohibiting future spray painting
by Maryland Shipbuilding at its shipyard.

In deciding whether or not to grant
permanent injunctive rclief, a court should

consider (1) the probability of irreparable

injury to the moving party or whether

there is an adequate remedy at law; (2)

whether the balance of equities favors the

moving party; (3) the public interest, if
any, that is involved in the dispute; and (4)

the merits. Minnesota Public Intcrest Re-

aearch Group v. Butz,358 F.Supp. 58/, 625

(D.Minn.19?3), aff'd,498 F.2d 1314 (Sth Cir.

1974).

Insofar as the paint damage claims are

concerned, this Court finds and concludes

that plaintiffs have an adequate remedy at
law. See Sampson v. Murray,415 U.S. 61,

94 S.Ct. 937, 39 L.Ed.Zl 166 (1974). Onlv

two paint overspray incidents causing dam-

age have been proved in the four and one-

quarter years that Nissan has occupied this
property. The last incident occurred almost
one year ago. Moreover, the evidence dis-

closes that Maryland Shipburlding has tak-
en appropriate steps to prevent the occur-

rence of any further paint incidents. It has

halt€d spray painting activities at Pier 5

and at the building slip. On the record

here, this Court concludes that plaintiffs
will be adequately compensated by the
damages to be awarded to them for the

paint incidents. There has been no showing
that the negligent acts of defendant will
continue in the future with such regularity
that the Court should enter an injunction
prohibiting all future spray painting by

Maryland Shipbuilding at its shipyard. Ac-
cordingly, plaintiffs' request for injunctive
relief will be denied.zr

IX

C,onclusion

For the reasons stated, the Temporary
Restraining Order entered herein on Sep-

21. lnsofar as the smoke damage claims are
concerned, the result would have been the
same had it been necessary for the Court to

tember 18, 1981 is hereby dissolved. Plain-

tiffs' rcnewed motion for a preliminary in-
junction is denied. Judgment will be en-

tered in favor of the plaintiffs on their
claims arising as a result of paint damage

occurring in May and August of 1981, the

amount of damages to be determined at a
later proceeding. However, plaintiffs are

not entitled to a permanent injunction in
connection with their claims of paint dam-

age. Judgment will be entered in favor of
the defendant on all of plaintiffs' other

claims. Each side shall bear its own costs'

Counsel should meet and present to the

Court an appropriate Order.

Truly Mae TAYLOR, et al., Plaintiffs,

v.

HAYWOOD COUNTY, TENNESSEE
et al., Defendants.

Civ. A. No. 82-1f38.

United States District Court,
W. D. Tennessee, E. D.

Aug. 3, 1982.

Action was brought for alleged racial
discrimination in adoption of method for
electing members of county board of high-

way commissioners. On motion for prelimi-
nary injunction, the District Court, Horton,
J., held that record established that, under

either Fourteenth and Fifteenth Amend-

ments or under Voting Rights Act, plain-

tiffs had substantial likelihood of success of
showing that their rights had been violated

by adoption of at-large method of electing

members of county troard of highway com-

missioners, as required for plaintiffs to be

entitled to preliminarf in]unction enjoining

county wide elections for such positions.

Motion granted.

reach the issue, particularly since the equities
in this case, as discussed elsewhere in this
Opinion, tip decidedlv in favor of the defendant

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l. Electione c=12 L'
Disproportionate impact alone is not

sufficielt to show voting rights violation
under Fourteenth and Fifteenth Amend-
ments, and courts must look to evidence of
purpos€; however, invidious discriminatory
purpose may often be inferred from totality
of relevant facts. U.S.C.A.Const.Amends.
14, 15.

2. Electione e-12
Under 1982 amendments of Voting

Righls Act, plaintiff need not prove intent
to show violation, but merely results. U.S.
C.A.Const.Amends. 14, lb; Voting Rights
Act Amendments of 1g?0, S 2 as amended
42 U.S.C.A. S 1973.

3. Iajunction el37(4)
Record established that, under either

Fourteenth and Fifteenth Amendments or
under Voting Rights Act, plaintiffs had
substantial likelihood of success of showing
that their rights had been violated by
adoption of at-large method of electing
members of county board of highway com-
missioners, as required for plaintiffs to be
entitled to preliminary injunction enjoining
county wide elections for such positions.
U.S.C.A.Const.Amends. 14,
Rights Act Amendmenls of
amended 42 U.S.C.A. S fgZB.

Voting
$2as

Thomas M. Daniel, Robert Brucc McDuff,
Memphis, Tenn., Nathan B. Pride, Garl'Va-
nasek, Jackson, Tenn., for plaintiffs.

Lyle Reid, Brownsville, Tenn., Ernest
Kelly, Jr., Memphis, Tenn., for defendants.

ORDER GRANTING PRELIMINARY
INJUNCTION

HORTON, District Judge.

This lawsuit arose out of dissatisfaction
by the plaintiffs with a Private Act of the
Tennessee General Assembly restructuring
the method for election of Board of High-
wa1' Commissioners in Hat-rvoorl Count1.,
Tennessee. That Privatc Act changcs thc
election of Highwa.v Cornmissitiners from
district elections to counir u.:i1,. 111-lxpg"
elections. Plaintiffs contclrii crruntvu'itit,

TAYLOR v. HAYIVOOD COUNTY, TENN.
Clre rs t4{ Fsupp. t t22 (t0SZ)

ru3
atJarge elections racially discriminate
against black voters in Haywood County in
that black voting strength is greatly dilutel
in comparison to white voters, thereby de-
nying black voters equal protection under
the law. Plaintiffs allege that the new "

at-large elections violate the Fourteenth
and Fifteenth Amendments to the Constitu-
tion of the United States, as well as the
Voting Rights Act of 1965, as amended.

Plaintiffs, black citizens of Haywood
County, Tennessee, seek a preliminary in-
junction enjoining the defendants from con-
ducting countywide at-large elections on
August 5, 1982, for the positions of High-
way C,ommissionerc in that County.

According to the evidence presented in
this case, during extensive hearings, High-
way C,ommissioners have been elected by
district in Haywood C,ounty since 1gB?. In
1981, the Honorable Dixon Hood, Haywood
County Judge, decided that Haywood Coun-
ty should be reapportioned based upon the
1980 census. Judge Hood recommended to
the Haywood County Commission that it
appoint a Reapportionment Committee to
devise and recommend to that body a plan
for the reapportionment of Haywood Coun-
ty. The committee, consisting of five mem-
trcrs, four whitc and one black, was appoint-
ed in 1981.

Judge Hood and the Ha1'wood County
Commission requested technical assistance
from the State of Tennessee. That techni-
cal assistance was provided by the State of
Tennessee's Planning Office. Mr. Mike
Malone, a planner, was assigned the task.

Mr. Malone and the Reapportionment
Committee had several meetings in which
reapportionment was discussed and plans
were developed to reapportion the Haywood
County Commission. Following a public
hearing, a plar of reapportionment was rec-
ommended to the Haywood County Com-
mission, and subsequently approved by that
bod.v.

The Reapportionmr:nt Commit.tee was
thereafter reappointed to study reappor-
tionment of the Road (irmmission and the
Boarrl of Education. That eommittee voteri

15;

1970,



:. tf .1,. :'

Llal 544 FEDERAL SUPPLEMENT

unanimously'to recommend to the Haywood

County Commission that the Board otlligh-
way Commission positions be filled by an

election on a countywjde atJarge basis'

The Haywood County Commission 
-then

passed aresolution asking the State Sena-

L. and State Representative for Haywood

County to introduce for passage by the Ten-

nessee General Assembly a private act pro-

viding for countywide atJarge election of

Highway Commissioners. This private act

wa"s passed by the General Assembly and

subsequently approved by the HayYTd
County Commission. The first phase of the

at-large election of the Road Commissioners

is scheduled to take place in the August 5,

1982 elections. It is in this above posture

that plaintiffs have filed their motion for

an iniunction enjoining the Road Commis-

sioner elections.

The Court must determine whether there

exists a substantial likelihoo<t that county-

wide at-large elections for Highway Com-

missioners in Haywood County, Tennessee,

on August 5, 1982, will violate plaintiffs'
constititional righls as alleged, and, wheth-

er, in the circumstances of this case, a Pre-

liminary Injunction enjoining the election

would be proper. The Court finds, from all

of the proof in this entire record, that coun-

tywide at-large elections for the Board of

tiigt*"y Commissioners in Ha.v-wood Cnun-

ty, Tennessee, show a substantial likelih<nd

of violating the constitutional righLs of

plaintiffs. The Court finds, from the proof

in the record, that the change from district

elections to countywide at-large elections

for Highway Commissioners appears to lle
racialll' motivated and threalens to substan-

tially result in an unconstitutional dilution

of piaintiffs voting rights in violation of the

Equal Protection Clause of the Fourteenth

Amendment to the Constitution of the

United States and in violation of the Voting

Rights Act of 1965, as amended' Therefore'

foi those compelling reasons, the Court will

issue a preliminary injunction enjoining th.e

rtefendants from conducting elections to fill
the position of Highway Commissioncr.u.n-

der ihe reapportionment plan alrproved lrr-

both the Tennessee General Assemtrll' and

thc Ha1'wood Countl Commission for Har'-

wood County pending further hearings on

the merits of this lawsuit'

While Haywood C,ounty, Tennessee, has

made subitantial and commendable

pDog"6s in raee relations in the past few

y""Ir=, tt 
" 

testimony in this case shows that

ihe C.ounty has a history of hostile acts,

inhumane treatment and deplorable exam-

ples of racial discrimination against black

citizens.

Dr. Currie Portnr Boyd, Ph'D', a citizen

of Haywood County and professor at Jack-

son St"t" Community College, Jackson,

Tennessee, testified that he first attempted

to register to vote in Haywood County in

1958. After attempting to register to vote,

he was fired, without explanation, from his

job as principal of an elementary school in

Hay*ooa County. He testified that those

blalks who did attempt to register to vote

in 1960 were put off of farms by landown-

ers and were personally threatened and

jailed. Those blacks could not purchase-ba-

.sic supplies and provisions on which to live'

The iesult was establishment of what be-

came widely known throughout the nation

as Tent City to house socially and economi-

cally displaced black citizens' Ultimately'
the Uniiert Slates Department of Justice

filed a lawsuit against landowners and busi-

nesses. The case is styled United Suates v'

Beatl', %8 F.2d 653 (6th Cir' 1961)'

During early attempts by black citizens

to regisilr to vote, Dr. Boyd stated-it took

all aiternoon to get as many as four (4)

1rcople regislered to vote' When elections

were hel<i after black voters registered, the

voting precincts closed at 5:00 p' m', rather

than 1i ?:00 P. m., which had been the

normal closing time for voting precinets'

Dr. Boytl testified that he does not know

of any black citizen who has ever been

elected to a countywide at-large office in

Hayu'ood County. He testified that it is a

disadvantage to a black candidate to run

at-large in a Hayworxl Coirnty dlection be-

cause:

1) A black candi<late could not know all

of the 1rco1rle in the count.v;

2) It is far morc exlrcnsive for a black

can<lirlate to c(tt'cr an entire countl';

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Iw TAYL,OR v. HAI'\ilOOD COUNIY, TENN.
Clt B5+tFsupp. I122 (t082)

lt25
3) It ic difficult for a black candidate to l) There was very considerablc racial dis-

go 8mong unfamiliar faces; crimination in Hal'woo<l County in thc

4) A black candidrL does not have aceess late 1950's and early 1960's.

to the financial resources necessary to 2) In the 1880's and the 1890's there were

conduct an atJarge election campaign some black registered voters in Hay-1
in Haywood County, which, he said, is wood County' Immediately prior to

I very large county; 1960, there were no black registered

5) AtJarge elections make it much less voters in that county'

likely that a black candidate will be 3) The first black citizens to register to

elected; vote in Haywood Countf in modern

6) AtJarge elections very much discour- times was on Mal' 1?' 1960' It made

age black voters because they will not the Neu'YorkTintes when eight blacks

feet ttrey have an opportunity to elect registered to vote in 1960'

black candidates to public office. 4) The response of the white community

Dr. Boyd expressed the view that gener- to black voter registration was a signif-

aily black peopre in Haywood county, Ten- icant amount of economic intimida-

nessee, oppose the at-large method of elec- r"ion-throwing sharecroppers off their

tions. "I see race all through it," he said. farms' the denial of credit' a conspiracl'

Dr. Boyd did admit that race relations have on the Part of a large number of land-

improved in Haywood county since the owners' banks' etc' and resulted in a

year 1960. lau'suit styled Uniled Stares r'. Beaty,

Dr. Morgan Kousser, a historian and 288 F'2d 653 (6th cir' 1961)'

teacher of History, Political Science and 5) The firct black ciLizcn to run for public

Econometrics at the california Institute of office in Haywood county was Mr'

Technology, pasadena, california, testified odell sanders' He ran for the lrcsition

for the plaintiffs. Dr. Kousser testified of alderman for the city of Browns-

that he was born in l.ewisburg, Tennessee, ville' Tennessee' in 1964' Mr' Sanders

and grew up in Nashville, Tennessee. He lost thc election'

said his senior thesis at Princeton universi- 6) The first successful black candidates

ty was entitled rennessee Politics and the were Messrs' Pou'ell and Nixon wh<r

N"gro, 1948 to 1964. He earned his Ph.D. won a magistrate's district electinn in

degree in history at Yale University in the District 9 of Hal'u'ood Countl"

area of Southern History and Political Sci- 7) In Haywocxi County, racial discrimina-

ence. His dissertation advisor was Dr. C. tion u'as perva^sive in the 1960's. There

Van Woodward, an expert in Southern His- was a frcetlom of choice plan in exist-

tory. His Ph.D. dissertation is entitled ence in thc public schools and in thcr
,,The shaping of Southern Politics, Suf- 1966-67 school year approximately one

frage Resiriction and the Establishment of percent of black students attended

the One Party South, 1880 to 1910." He what were then referred to as the

said that his research is focused on southern white schnols.

history and the history of racial discrimina- 8) Blacks were very prominent in Ha1'-

tion. He has researched and studied the wood County'politics from 1870 to 1888.

history of racial discrimination in Haywood Samuel McElu'aite, a black, was elected

County, Tennessee. That research included to the State House of Representatives

the 1955 and 1961 Civil Rights Commission in 1883. In 1885, he was nominated by

Reports, newspaper clippings from the the Reprblican Partl' for Speaker of
Naslrwl/e Tennessean, ?ie Nastn'rlle Ban- the House of Represcntatives of the
ner, The Memphis Commercial Appeal and State of Tennessee. Howcver, that 1xr-

The Statcs Graphic, a newspap€r published litical era ended in 1888 u'hen there
in Brownsville, Tennessee. Dr. Kousser tes- was a violent overthrou' of ',he Repulrli-

tified to the following facts: can Partf in Ha1'u'rxxl Countl lrl a

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KlanJike group called the Haywood
Guards. Thus, through violence and
intimidation black political po*er was
brought to a substsntial end tn Hay-
wood C,ounty, Tennessee, in 1888.

Thereafter, representatives from Hay-
wood, Fayette, Shelby and other eoun-
ties obtained legislation, from the Ten-
nessee State I^egislature, effectively
ending black political participation in
West Tennessee. Those laws wene a
Poll Tax Act, Secret Ballot Law and a
Registration Law. Those laws were
clearly racially discriminatory in their
purpos€ and intent.

9) As latc as the 1962-63 school year,
Haywood County was spending 75

cents for each black student's education
compared with each dollar spent on
each white pupil.

10) A racial bloc voting analysis in coun-
tywide elections in Haywood County
shows that black candidates running in
six elections against white candidates
did not receive more than eight percent
of the white vote.
a) In the 1974 election a black candi-
date named Hudson running for Circuit
Court Clerk received 8 percent of the
white vote and 60 percent of the black
vote.

b) In four other 1974 countywide races,
one black candidate received 10 percent
of the white vote and 56 percent of the
black vote, another candidate received
0 percent of the whitc vote and 34
percent of the black vote, another black
eandidate received 10 pereent of the
white vote and 75 percent of the black
vote. In the fourth race, a black candi-
date for Road Commissioner received 6
percent of the white vote and 48 per-
cent of the blaek vote.
c) In a 19?8 countl'wide race for Regis-
ter, one black candidate received 0 per-
cent of the white vote and 63 percent
of the black vote.
d) In 1982 a black candidate won a
citywide election for alderman in the
City of Brownsville, Tennessee. He re-
ceived 3 percent of the white vote and
85 percent of the black vote.

The testimony in this rnecord shows that 8

black candidates had run previously in
countywide elections-and all were defeat-
ed. The most recent such election was for
the position of County Register in 19?8.

Dr. Kousser gave the following graphic
and highly credible testimony which the
Court incorporates in this opinion without
further comment. It speaks for itself:

a. (By Mr. McDuff) Dr. Kousser, what
does your racial block voting analysis tell
you about the impact of at-large elections
on black voters in Haywood County?

A. At-large elections have a disproportion-
ately discriminatory impact on black voters
in Haywood County. They have much less

chance to win than under the single district
system.

THE WITNESS: The answer was that in
countywide elections, blacks have been no-
tably unsuccessful in Haywood County.
They have never gotten more than 27.3

percent of the vote. They have faced racial
bloc voting by whites, and it has been over-
whelming. In that sort of environment,
with pervasive racism in the white elector-
ate as indicated by the racial bloc voting
analysis, blacks are disproportionately dis-
criminated against and disproportionately
impacted by a countywide election, by an

atJarge election rather than a district elec-

tion.

a. (By Mr. McDuff) Dr. Kousser, do you
know what the percentage black voting age
population is compared to the total voting
age population?

A. For the county a-s a whole we do have
figures from the 1980 election. I believe it
is about 4? percent-about 51.2 percent in
the population as a whole.

e. Does a white candidate or white office-
holder, in light of what you have just testi-
fied to about racial bloc voting, have to be

responsive to the interests of black voters
because black voters composc 47 percent of
the voting age population?

A. I would think not. That conclusion is

based upon not only the fact that there is
verl' considerable racial bloc voting during

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- ,ITAYI0t v. ?ATWOOD COUNTY, ENN.
OrG rg i'H F.SI4P. I t22 (lDtz) t

the elections where any black is a candidate e. what kind of effect do

at least-it is also based on the fact that tions generally have on black

in countywide elections for blacks.

e. Why is that?

A. They are poor. The area is large. It is

black concems. It is very difficult for them
to get what could be called good publicity, I
am sure, in that media. It is very difficult
for them to get known. Because of historic
arrd continuing discrimination in generai

throughout the south, it is more difficult
for a black politician to get to meet other
politicians and influential people. Blacks
have not been permitted to join local civic
clubs, and things like that, in which thel'
are able to meet-in which politicians typi-
cally are able to meet other politicians and
people who can help them in their cam-
paign. For blacks it is very difficult to run
in a couhtywide election.

t127

at-large elec-
political can-

subject of a Federal Court case earlier this
spring, in which in a first election, at least

in an initial election, black candidates were

victorious against multiple white candi-

A. Yes, I can.

In the first place, it is based on the whole

history of racial discrimination and racial
bloc voting in Haywood County, That ha-s a

long history. It dates at least from the

1860's and '70's, and it is not an attitude or
set of attitudes among whites that I expect

to evaporate overnight. It has existed, ac-

cording to my racial bloc voting analvsis,

through June ofl1982, and continues to ex-

ist.

Secondly, it is based upon analysis of the

sequence of evenls which occurred- Let me

go over those quickly. One, in 1978 for the

blacks arne or wene in .1972, and probably didacy?

still are-Haywood Cotnty is like other A. They discourage black political candi-
counties where we do have some voting dacy beeause blacks realize that they will
rcgistrationlotals by race since 1972-prob- not have as good a chance of winning as

ably still are disproportionately unlikely to they would under a single member district
participatre in politics. 51 percent of the system.
population and 4? percent in voting age

population, but probably a smaller propor- a' Suppose that a black candidate won an

iion regisered. 
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;',:".Iiir"fitff: It:\f.:ifr::'$Hhl
a. It is likely that blacks will participate date line-up would you expect to see at the
proportionately less in politics? next election?

Do you consider that to be the result of A. I would expect to see a one on one,
historical discrimination? white versus black race, or at least one

A. Yes; and current poverty. viable, overwhelming white candidate to

a. Dr. Kousser, is it more difficult for run against the black incumbent or the

biack candidates, compared to white candi- black running in that race'

dates, to participate in the citywide elec- a. Do you know of instances in other com-

tions or countyu'ide elections in Haywood munities where that has happened?

County? A. Yes, I do. I believe it happened recent'

A. It is much more diffieult to participate ly in West Helena, Arkansas, which was the

extremely large. In ord.er,to campaign in dates, multiple viable white candidates.
such an area, you have to have gas to get
around. you have to hav.e posrers rl 

::_",.: Xff,,#'r*fl H,f'ill];,Xr:'1Lffi;
You have to have people to get your people 

them, and the black can.idates lost.
to the polls in all areas of the county. You
have to be extremely Jr-""g".;6. v", e' And that case is Perkins v' CitS' of

have to have visibility. To have visibility, it West Helena' 675 F'zd' 201 (8th Cir')?

helps to have the media. As has been A. Yes' I read that case'

shown previously, the leading newspaper of a. Can you tell us what the opinion is
the county is not exactly sympathetic to based on, please?

i

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ll28 ,l{4 TMERAL SI.IPPLEMENT

first time since the Haywood C,ounty C,om-
mission, since the Haywood County Road
Commission was set up in 1g37, therc was a
black elected to that commission-ithe first
black elected. At the next opportunity
they go to at-large. -They never had at-
large beforre. They had district systems.

e. Do you know how long the district sys-
tem had been in existence?

A. They had had district systems, I be-
lieve, since 1937.

a. Please continue.

A. The second thing is the emergence of a
Civil Rights group, which focused its atten-
tion on rcads, on rnoads for blacks. That, so
far as I know, had never been a focus of
substantial activity and never been sort of
Publicly identified as a racial issue.

a. When did this emergence occur?

A. It occurred in 1980. I believe that the
first records that I have seen in the newspa-
per came in 1980 when the organization
called JONAH began to ask for particular
consideration to be given to roads in the
black community.

a. Did this movement accelerate in 1g8l?

A. Yes, it did. There were a series of
public hearings detailed in the newspapers,
in which JONAH asked for monel to be
spent on roads in black communities.

a. Dr. Kousser, what was the response
from your research of the black community
to the proposed change through at-large
elections for the Road Commission?

A. The response detailed in the newspa-
pers was that they were overwhelmingly
against the change. There was a whole
crowd of people from JONAH at the ulti-
mate meeting which the Board of County
Commissioners had to vote to institute the
change. They seemed extremely displeased
at the ultimate outcome, and after having
presented evidence and agitated, they
walked out when they lost.

e. Was that being held on April tSth,
1982?

A. I believe that is the date-around then
at li:ast. i

e From your research, do you know or
can you expre$s an opinion on whether or
not the officials of the Haywood County
Commission knew of the black opposition to
the atJarge election system for the Road
Commission?

A. Yes, I can. I have before me part of
Exhibit Number 16 from the Jackson Sun,
in February, 1982. The title of the article
is, "Haywood Group questions voting plan.,'
There were several articles which indicated
that the black opposition to the atJarge
voting had been made quite clear to the
officials who had to vote on the issue.

In the Spring of 1981, following the re-
lease of 1980 census figures, the Honorable
Judge Dixon ^Elood, County Judge of Hay-
wood County, testified that he was in-
formed by the Tennessee State Planning
Commission and other sources, of the coun-
ty's need to reappcrtion the County Com-
mission based upon the new census figures.
The results of the 1980 census indicated
that the county's population was continuing
its movement from rural areas of the coun-
ty to areas u,ithin the city of Brownsville,
Tennessee. Acrording to the figures, fully
46% Lo 47% of the county's population was
u'ithin the boundaries of the city of
Brownsville.

Judge Hood acting on that information,
informed the Haywood C,ounty Commission
of the eounty's need to develop a reappor-
tionment plan and suggested that the com-
mission form a committee to develop such a
plan. The county commission responded by
giving Judge Hood authority to appoint a
Reapportionment Planning Committee
(hereinafter committee). Pursuant to that
authoritl' Judge Hood selected five persons
whom he knew well and were personal
friends to serve on the committee. Think-
ing the committee would need technical as-
sistance, Judge Hood contacted the State
Planning Office at Jackson, jn nelghboring
Madison Countl', Tennessee. It was decid-
ed that Mike Malone, of the Jackson office
of the State Planning C.ommission, would
assist Judge Hood and the comrrittee in the
formulation of a ner.r, reapportionment plan.

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Mr. Malone, I graduate of Lambuth Col- the Hatchie River, and that those persons

lege, with a bachelor's degree in business who did live south of the river felt separat-

administration, had been employed as a ed from the remainder of the county. It
planner by the Tennesee Planning C,om- was felt those factors presented a substan-

mission for 13 years. As a state planner, tial problem in devising district boundaries.

Mr. Malone-indicated that part of his duties As Judge Hood testified nearly ten percent

included assisting cities and counties with of the county's population resided in one

mattcrs such as land use planning, zoning, small district found within the city of
suMivision eontrol and reapportionment. Brownsville.

------ 
-tlXIrB 

I.8AYT(X)D COLINTY. 1129

On September 16, 1981, the committee
held a meeting at which Malone presented 2

reapportionment plans he had drafted based

on guidelines given him by the C,ommittee.

Both plans developed provided for election
of 20 county commissioners from 9 districts.
Following discussion the committee tenta-
tively adopted one of Malone's plans. On

October 7, 1981, the Reapportionment Com-

mittee held a public hearing on the pro-
posed plan. Notice of the public hearing on

reappnrtionment of the county commission
was published in the State Graphies, a local

newspaper. Following that hearing the
plan was recommended to the County Corir-

mission. The County Commission met to
consider the plan and approved it. Judge
Hood testified that following the approval
of the new reapportionment plan for the
County Commission, he reappoinled the
same Reapportionment Committee to Jook

into reapportionment of the Road Commis-

sion and the Board of Education.

On January 8th and 9th of 1982, the
reapportionment committee met to discuss

reapportionment of the Haywood Countl'
Road Commission. The testimony of Judge

Hood indicates the committee voted unani-
mously to recommend to the County Com-

mission that the Road Commission be elect-
ed on an at-large basis. On January 18,

1982, the Ha1'ruood County Commission
passed a rcsolution asking the State Sena-

tor and State Representative for Haywood

County to introduce for passage by the Ten-

nessee General Assembly a private act pro-
viding for the at-large election of the Road

C,ommission. That resolution provided for a
decrease in the numh,er of Road Commis-

sioners from six to five, with the five com-

missioners designating one of their number
to serve as chairman each year. The legis-

Malone testified that he had worked with
Judge Hood and other Haywood County
officials on two previous occasions. Initial-
ly, he had provided assistance in regard to
subdivision regulation. Later he helped the
county qualify for participation in the Na-
tional Flood Insurance Program.

Prior to the committee's first meeting,
Malone provided memhrs of the committee
with brochures and other introductory ma-
terials explaining reapportionment. He
also prcvided memhrs of the committee
with statistics from the 1980 census. Judge
Hood attended that meeting and testified
the committee generally discussed objec-
tives to be accomplished by the new reap-
portionment plan. According to Judge
Hood the committee decided the new plan
should:

1) Maintain the present number of com-
mission seats, which wa^s at that time
(20) twenty.

2) Continue to elect 2 commissioners
from each district.

3) Attempt to follow district boundary
lines then in effect, or in the alterna-
tive, follow enumerated district lines
or natural boundaries such as roads,
rivers, or property lines; and

4) Maintain a deviation from one man
one vot€ rules of not more than plus or
minus five (57o) percent.

The Committee then requested that Mal-
one draft a reapportionment plan encom-
passing those various characteristics. Mal-
one was also advised of two factors the
committee considered as presenting prob-
lems in the drafting of a viable reapportion-
ment plan. First, 477o of the county's popu-

lation, a near majority, was encompassed

within the city of Brownsville, Tennessee.

Second, that not many people live south of



rril .i{'
I.'.ltrlENAL ST'PPLEMENT

The Court does not dispute the fact that
reapportionment of the Road Commission
may have been necessary because of the
shift in population in Haywood County as
indicated by the 1980 census. However, the
Court finds untenable Judge Hood's two
remaining reasons. Additionally, the Court
does not believe the shift in population, the
only sound basis for reapportionment, re_
quires that Haywood C.ounty elect Road
Commissioners on an at-large basis rather
than from single member districts as it has
been doing since the year 1gB?.

In his testimony Judge Hood stated that
race was not a factor in the development of
an at-large election plan for Road Commis_
sion seats. While the Court recognizes that
great strides toward resolving racial preju_
dices have been made in Haywood County,
events surrounding adoption of the at-large
plan and relevant past history dictate the
conclusion that, notwithstanding assertions
to the contrarv, race appears to have been a
factor. The record indicates that in Janu-
ary of 1982 Judge Hood received visits and
telephone calls from concerned citizens com_
plaining to him that the at-large election
plan was discriminatory in that it diluted
black voting strength. Judge Hood testi_
fied that he and members of the County
Commission, at the lrchest of the NAACi,
and other community organizations, attend_
ed a meeting at the First Baptist Church in
Brownsville, Tennessee, to discuss the plan
in the spring of 1982. At that meeting,
Judge Hood and others heard complainis
from black citizens in regard to the discrim_
inatorl' nature of the plan. Furthermore,
Judge Hood received telephone calls from
both the State Senator and State Repre-
sentative of Haywood County regarding a
petition by black citizens against the meas-
ure. A delegation of black citizens walked
out of the commission meeting in protest
when the plan was approved.

Clearly, the racial implicatigns of the at-
large plan was an issue that wias dealt with.
To sa.1' that race u'as not an issue and was
ignored is inconsistent *'ith the record in
this ca^se and the racial hisror.r. cf Haywood
Countr'. The &rurt is troubled bv the as-

'' - 
lators, acting on the rcquest from the Hay-
wood C,ounty Commission, introduced the
private ac't, which the General Apsembly
passed on March ?i, lg8?. Subseqhently on
April 19, 1982, the County Commission met
to consider approval _of the private act.
Judge Hood testified that a two-thirds vote
of the commission was needed for approval.
However, on the first vote the measure
failed to get the necessary two-thirds vote.
The committee undertook further discussion
of the matter and a second vote was taken
following approval of a motion for reconsid_
eration. Judge Hood stated that on the
second vote the commission adopted the pri_
vate act, 14 votes in favor, 5 votes against,
with one member absent. Of the a Utact<
commissioners on the board, B voted against
the at-large measure. The record indicates
that the only black commissioner to vote for
the at-large election of County Commission_
ers, stated he was opposed to the measure.
However, he did not want to delay the
upcoming election, and he hoped follou.ing
the August 5, 1982, election the county
would return to the single member district
elections of Road Cnmmissioner.

In his testimony Judge Hood stated he
felt there were three reasons to reapportion
the Road Commission with the eleelion of
its members on an atJarge basis. He stat-
ed that race was not one of the reasons.
Judge Hood said his rea^sons were:

1) The population shift, as reflected b1,
the 1980 census, resulted in an unequal
population distribution requiring redis_
tricting.

2) There was a problem in continuing to
elect Road C,ommissioners from single
member districts trecause now there
were 9 districts rather than the previ_
ous l0 from which to elect 5 commis_
sioners. Consequently, he felt there
was no way to equal)y divide the com_
missioners among the districts for
election, and

3) Some Road Commissionerc then in of_
fice had morc power than others re_
sulting in an unequal distribution of
funds for roads in some parts of the
countl'.

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sertion of Judge Hood and Mike Malone of reapportionment. Al4rarcntly hc u'as rc-
that equal distribution of population w&s ferring to Rogers r,. kxlgc, ---- U.S. - ,

the predomihatc reason for switching from 
--, 

102 S.Ct. B2?2, gz7g,7g L.Ed.zl l0lz
election of Road Comirissioners by districts (1982) which sg:cifically discusscrl rliluting

---- i

-. I?AYL(N 
'.-HAYWOOD 

COUNTY, TENN.
Cltc rs 5,0{ Fsupp. I122 (1882)

I l3t

the voting power of black citizens in Burkc

the basic concept that at-large voting di-
lutcs minority voting strength, especially in
light of his background. The Court rejects
this testimony as lrcing incredible.

Thus, the Court finds that racial consider-
ations brought about the change in the
numlrcr of districts from 10 to 9. Had
there been developed a 10 district plan,
Road Commissioners could have been con-
tinued to be elected from districts rather
than on an at-large basis. The testimon.y of
Mr. Malone indicates that he could have
drawn a ten district plan adhering to the
one person one vote principle. He did not
do so, nor did thc county ask him to do so,
even in the facc of a multitude of com-
plaints regarding the discriminatory result
of thc 9 district at-large ltlan. The Court
does find credible Mr. Malone's statement
that he could draft a better plan.

Creation of 9 districts from u'hich to elect
Road Commissioners rather than the previ-
ous number of ten districts was not arrived
at arbitrarill', nor did it magicalll' appear,
nor was it mathematicalll, 61.1r*6, nor was
it dictated by an attempt at consistencl'.
Rather the Court finds from the evidence in
the record it otcurred as a result of the
puryroseful intention to dilute black voting
strength in Ha1,u'ood Countl', Tennessee.

Judge Hood testified that the Ha;lwood
County Reapportionment Committee faced

to the at-large plan.

than considerations of race.

The Court finds, however, that race alF
pears to have been a big factor in changing
the number of districls from 10 to that of 9
under the at-large plan. In effect, racial
considerations appear to have prompted the
peculiar logic and mathematics stated in
justification of the plan. Malone states
that he was not asked to develop a ten<lis-
trict plan, though he could have done so.

In defense of the plan, Malone states that
race could not have been a factor in his
drafting of the plan because he had no
statistics as to the racial make-up of the
county. In fact, he asserts that he knew
very little about the geography of the coun-
ty. Malone also testified that he had never
heard of the concept that atJarge voting
dilutes minority voting strength.

The Court, however, does not accept Mr.
Malone's assertions as credible for the fol-
lowing reasons. He testified that he had
assisted Judge Hood and Haywood County
on two previous occasions; in matters per-
taining to suMivision regulation and quali-
fication for the National Flood Insurance
Program. The Court finds that, contrary to
his asserbion, Malone had to be familiar
with Haywood County and its geography.
He also testified that before the hearing of
the case he had read a United States Su-
preme Court case dealing with the subject

Malone-testified that he drew up a plan County, Georgia. Moreover, the Court docs

with 9 districts of near equal populaiion. not find as creditrle the assertion that Ha.v-

In doing so, he states that race was not u wood County would choose a person so as-

factor. In his opinion and that of Judge sertedly lacking in knowledge of thc coun-
Hood, because there were only 5 Road Com- ty, its geography and demography to draft
missioners, a mathematically equal distribu- a reapportionmcnt plan. Also, Mr. Malonc
tion of road commissioners to districts coulcl is highly educatcd and experience<I. He
not be achieved. Simply stated, g districts possesses a bachelor's degree in business

could not be equally aiviaea among 5 com- administration' Hc hzs worked for thc
missioners; thus, they concluded there must State Planning Commission for 13 years.

be an election of Road Commissioners on an He testified he had assisted other counties
atJarge basis. Mr. Malone and Judge Hood in reapportionment prior to drafting the
assert that the above conclusion was tlictat_ Haywood County plan. It defies reason to
ed by simple logic and mathematic-s rather believe that Mr. Malone had never heard of



.!lp
special problems in devising equal represen-
tation for Road Commissioner districts. He
listed those speciai problems as being:

1) Approximatnly 467oln 47Vo of the pof
ulation of Haywood County is located
within the city limits of- Brownsville,
Tennessee.

2) The Hatchie River, being a natural
boundary, presented a special problem
because of the scarcity of population
south of that river in Haywood Coun-
ty. Judge Hood said the Hatchie Riv-
er tends to separate people and make
them feel they are not part of the
whole county. He testified there are
three bridges across that river located
on Highway M to Covington, Tennes-
see; Highway 70 to Memphis, Tennes-
see; and Highway 76 to Somerville,
Tennessee.

The Supreme Court of the United States
long ago ruled those special problems listed
by Judge Hood impermissible factors in jus-
tifying deviation from the equal population
principle basic to reapportionment:

Consideration of area alone provides an
insufficient justification for deviations
from the equal population principle.
Again, people, not land or trees or pas-

tures, vote. Modern developments and
improvements in transportation and com-
munications make rather hollow, in the
mid-1960's, most claims that deviations
from population-based representation
can validly be based solely in geographi-
cal considerations. Reynolds r,. Sims, 377
u.s. 5rJ3, 580, 84 S.Ct. 1362, 1391, 12

L.Ed.zd 506 (1963).

How much more true is that statement in
1982.

As stated, plaintiffs have filed this action
seeking declaratory and injunctive relief
against the newly+nacted at-large election
plan for Road Commissioners of Haywood
County. At the hearings, plaintiffs specifi-
cally moved the C,ourt to enjoin the election
of Road Commissioners presently set for
August 5, 1982.

In seeking preliminary injunctive relief
[plaintiffs] assumed the heavy burden of
showing either a substantial likelihood of

, iT. Ff,DIBAL STTPPI,EHENTT

suc@ss on the merits coupled with the
possibility of some irreparable injury to
[themselves] or that [they have] raised
serious questions going to the merils and
that the balance of hardships tips decid-
edly in [their] favor. Even in such a case

injunctive relief would be justified only
as a means of maintaining the status quo.
(Citations omitted).

Halder v. Avis Rent-A-Car System, Inc.,54l
F.2d 130 (2d Cir. 1976).

In approaching the plaintiffs' request,
then, the Court must first look to plaintiffs'
likelihood of success on the merits. This
entails an examination of the merits of
plaintiffs' legal eontentions and analysis.

Plaintiffs contend that the enactment of
the at-large election plan violates the Four-
teenth and Fifteen Amendments to the
Constitution, and also Section 2 of the Vot-
ing Rights Act of 1965, as amended. Since
the relevant standards of proof to show a
violation of the Fourteenth and Fifteenth
Amendments and of the Voting Rights Act
differ, each will bc discussed in turn.

In recent years the United States Su-
preme Court has made clear the standard of
proof which must be met in order to show a
violation of the Fourteenth and Fifteenth
Amendments in the context of claims of
racial discrimination affecting voting.

The case of City of Mobile v. Bolden, M6
u.s. 55, 100 s.ct. 1490, M L.Ed.2d 47 (1980),

wa^s a class aetion brought in the United
States District Court for the Southern Dis-
trict of Alabama by a class of black citizens
of the City of Mobile, Alabama, (a city
governed by a commission consisting of
three members elected atJarge, jointly ex-
ercising all legislative, executive, and ad-
ministrative pou'er in the city) alleging,
among other things, that the city's practice
of electing commissioners at-large by ma-
jority vote unfairly diluted the voting
strength of blacks in violation of the Four-
teenth and Fifteenth AmendmenG. The
District Court found the plaintiff's constitu-
tional rights had been violated. The United
States Court of Appeals for the Fifth Cir-
cuit affirmed on appeal.

\ t .:,

The Sr

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t:{l',::.t,

TAYLOR V. HAYWOOD COUNTY, td}tN.
Clte as 5{4 F.SuPP. I 122 (1982)

1133

.The Supreme Court, however, in a deeply Mass. r'. Feeney,442 U.S. 256 [99 S.Ct.

split decision, reversed,.fildinS that racially m2, ffi L.Ed.2{i 8701. The Court explic-

discriminatory motivation-is a necessary in- itly indicated in Washington r'. Daut.s that
gredient of a Fifteenth Amendment viola- this principle applies to claims of racial

tion, and thaf only if there is a purposeful discrimination affecting voting just as it
discrimination can there be a violation of does to other claims of racial discrimina-
the Equal Protection Clause of the Four- tion.
teenth Amendment.

Our deeisions . . . have made clear that
action by a State that is racially neutral
on its face violates the Fifteenth Amend-
ment only if motivated by a discriminato-
ry purpose.

446 U.S. at 62, 100 S.Ct. at 1497.

Whitn v. Regester,412 U.S. ?55 [93 S.Ct.

?332, 37 L.Ed.2d 3141; Whitcomb v.

Chavis, supra [403 U.S. 124,91 S.Ct. 1858,

29 L.Ed.2d 3&31; Kilgarlin v. Hill, 386

u.s. lm [87 s.cr. 820, 17 L.Ed.2d 771];

Burns v. Richardson, SS4 U.S. 73 [86 S.Ct'
1286, 16 L.Ed.zd 3761; Fortson v. Dorcey,
379 U.S. 433 [85 S.Cr. 498, 13 L.Ed.zd
401]. We have recognized, however, that
such legislative apportionments could vio-
late the Fourteenth Amendment if their
purpose were invidiousll' to minimize or
cancel out the voting potential of racial
or ethnic minorities. See Vrlhite v. Begc's-

tcr, supra; Whitcomb v. Chavis, suPra;

Burns v. Richarclson, supra; Fortson v.

Doney, supra. To prove such a purlrcse
it is not enough to show that the group
allegedly discriminated against has not
elected representatives in proportion to
its numbers. White v. Rcgester, supra

[412 U.S.] at ?65-766 [93 S.Ct. at 2339];

Whitcomb v. Chavis,403 U.S., at 149-150

[91 S.Ct. aL 1872). A plaintiff must prove

that the disputed plan was "conceived or
operated as [a] purposeful devic[e] to fur-
ther racial . . . discrimination," id., at 149

[91 S.Ct. at 1872].

This burden of proof is simply one aspect

of the basic principle that only if there is
purposeful discrimination can there be a

violation of the F,qual Protection Clause

of the Fourteenth Amendment. See

Washington v. Davis, 426 U.S. 299 [96
S.Ct. 2040, ,A L.Fxl.2d 5971; Arlington
Heights v. Metropolitan Housing Dev.

Corp., 4D U.S. 2t2 [9? S.Ct. 555, 50

L.Ed.2d 4501; Personnel Administrator of

466 U.S. at 6G{7, lm S.Ct. at 1499.

tl] In short, under the rule in Mobilc r'.
Bolden, disproportionate impact alone is not
sufficient to show a violation under thc
Fourteenth and Fifteenth Amendments.

Courts must look to evidence of puryrose.

Necessarily, however, an invidious discrimi-
natory purpose may often lrc inferred from
the totality of the relcvant facls. Wash-

ington r,. Darr.s, 426 U.S. 2n,96 S.Ct. 2040,

48 L.Ed.2d 597 (1976). Further, "[d]eter-
mining whether invidious discriminatory

I)urpose was a motivating factor demands a

sensitive inquiry into such circumstantial
and tlirect cvidencc of intent as may bt:

available." Arlington Heights t'. Metro
Housing Corp.,4N U.S. 252, 97 S.Ct. 555, 50

L.Ed.2d 450 (1977).

Ver1, 1s..rt1, thc Supreme Court, in Bog-

ers v. l,ulga, 
- 

U.S. 

-, 
102 S.CI. 3n2,

73 L.Ed.2d 1012 (1982), reaffirmed its deci-

iion in Mobile v. Bolden, supra, that a con-

tention of voting <lilution can produce a
violation of the Fourteenth Amendment
only if thc allcged unconstitutional plan

was conccived or maintained as a purpose-

ful device to further racial discrimination.
Results alonc are not enough.

The law regarding the standard of proof

required to show a violation of the Voting
Rights Act has undergone vast change-s in

recent years. ln Mobile v. Bolden, supra,
,146 U.S. at 60-61, 100 S.Ct. at 1496, the

Supreme Court discussed the Voting Rights
Act (more specifically S 2 of the Act).
There, the Court found that "it is apparent
that the languagg of S 2 no more than
elaborates upon that of the Fifteenth
Amendment, and the legislative history of
S 2 makes clear that it was intended to
have an effect no different from that of the

Fifteenth Amendment ilself." As stated,

the C,ourt then went on to find that thc

L -"'ish}.-'_ l5-*



if i::'
1lt4 544 FEDERAL SUPPLEMENT

Fifteenth Amendment is violated only if
action by'a State that is racially neutral on
its faee was motivated by a discniininatory
purpose.

When Mobile v. Bolden was decided, g 2
of the Voting Rights Act read as follows:

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

On June n, 1982, the President signed
into law a bill extcnding and amending the
Voting Rights Act. The amended g 2 of
the Act reads as follows:

a) No voting qualifieation or prerequisite
to voting or standard, practice, or pro-
cedure shall be imposed or applied by
any State or political subdivision in a
manner which resu/ts in a denial or
abridgement of the right of any eiti-
zr-n of the United States to vote on
account of race or color.

b) A violation of subsection (a) is estali-
lished if, based on the totality of cir-
cumstances, it is shown that the politi-
cal processes leading to nomination or
election in the state or political subdi-
vision are not equally open to partici-
pation by members of a class of citi-
zens protected by subsection (a) in
that its memtrcrs have less opportunit.r'
than other members of the electorate
to participate in the political process
and to elect representatives of thcir
choice. The extent to which memlrcrs
of a protected class have been elected
to office in the state or political sulxli-
vision is one "circumstance" which
may be considered, provided that noth-
ing in this section establishes a right
to have memherc of a protected class
elected in numbers equal to their pro-
portion in the population. (emphasis
added).

The legislative historl' of the above
amendment makes its meaning above ques-
tion. The Senate Judiciary Committee Re-
port on the Voting Rights Act Extension
states as follows:

The proposed amendment to Section 2 of
the Voting Rights Act is designed to re-
storc the legal standard that governed
voting dlscrimination cases prior to the
Supreme Court's decision in Bolden. In
pre-Bolden eases plaintiffs could prevail
by showing that a challenged election law
or procedure, in the contex of the total
circumstances of the local electoral proc-
ess, had the result of denying a racial or
language minority an equal chance to
participate in the electoral process. Un-
der this results test, it was not necessary
to demonstrate that the challenged elec-
tion lau' or procedure was designed or
maintained for a discriminatory purpose.

t2l Although the Voting Rights Act
Amendment in no way affects the recent
Supreme Court intcrpretations of the Four-
teenth and Fifteenth Amendments, it does
make abundantly clear that to show a viola-
tion of the Voting Rights Act, a plaintiff
need not prove intent, but merely results.

t3l Pursuant to the above stated stan-
dard for granting or denying a preliminary
injunction, the Court must determine
whether plaintiffs have a substantial
chance of success on the merits under either
the intent test of the Fourteenth and Fif-
teenth Amendments or the results test of
the Voting Rights Act. After a thorough
consideration of the entire record, the oral
argument of the parties, and the applicable
law, thc Court finds that plaintiffs do have
a substantial likelihood of success under
either theory.

The evidence is clear the new at-large
plan for electing Ha-vu'ood Count_v Highway
Commissioners would result in a dilution of
the voting strength of blacks in that coun-
ty.

In assessing the constitutionality of at-
large and multi-member district voting
schemes pursuant to the required intent
test, there are several factots which a court
must consider. Among these are a Iack of
minoritv access to the candidate selection
process, unresponsiveness of elected offi-
cials trr minority interests, a tenuous state
poiio' underl.r'ing the preference for multi-

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,,----
fITf OF PHILADELPHIA v. STEPAN.CIIEIIICAL CO.

Clte rs 5+{ FSup9. t tts (10t2)

memhr or atJarge districting, and the ex- It is intcresting to notc that this new
istence of past discrimination which pre- reapportionment plan was adopterl shortl.t'
cludes effective part(ipation in the elector- after an increase in complaints by black
al process. Factors which enhance the citizens over the conditions of roads in their
proof of voting dilution are the existence of distric[s. /
large districts, anti-single shot voting provi- This is an application for a preliminary
sions, and the absence of any provision for injunction. It is not the Couri's duty at
atJarge eandidates to run from geogaphic this time to make final conclusions as to lawsuMis'"ricts' *e Zimmer v. McKeithen, and facts, but rather to assess the likelihoori
485 F'2d 1297 (sth Cir' 1973)' of plaintiffs'success at a trial on the merits.

The Court finds these factors and more to The C,ourt finds plaintiffs' likelihood of suc-
have been met, which afford some evidence cess to be great.
of discriminatory intent: Afhr a balancing of the hardships which

1) There is overwhelming evidence of an injunction at tiiis time would produce,
bloc voting along racial lines. the Court finfls the scale tips in iayor of

2) Although approximately half the pop- plaintiffs.
ulation in Haywood County is black, For the above state6 reasons, the Court
no black has ever been elected to a hereby enjoins the election of the Haywood
countywide office. Couniy High*"1' Commissioners presentl.y

3) until 1960, no blacks were registered set for August 5, 1982, pentling a hearing
to vote in Haywood Count5'. on thc merits of this case.

4) There is a long history of discrimina-
tion in education in Haywood Countl..

5) Past history of Poll Tax, Secret Ballot
[,aw, and Registration Lar.r' has con-
tributed to denial of access to the po-
litical process by blacks in Haywood
C,ounty from 1880 until 1960.

6) The size of the county, combined with
the much greater proportion of blacks
below the poverty level, make it more
difficult for blacks to run for office, to
get to the polls on election day, or to
have faith they can reasonably expect
to elect black candidates to office.

Although Haywood County has madc
great strides toward racial equality in the
last few years, its contrary history has
made that County known throughout the
United States. Given this history of racial
inequality and the compelling factors in this
record, the Court finds that it is just not
credible for the Court to find that race was
not considered. The evidence is clear in
this record that the dissatisfaction of black
citizens in the community and the great
possibility of voter dilution by the new re-
apportionment plan was made known t.o the
County Commission before the plan was
adopted.

ll35

CITY OF PHILADELPHIA, Plaintiff,
v.

STEPAN CIIEMICAL COMPANY, et
al., Defendants.

Civ. A. No. 8l-851.

United Stat€s District Court.
E. D. Penns.vlvania.

Aug. 4, 1982.

Cit1, sought to recover cleanup costs
and consequential damages *'hich resulted
from illegal dumping in city landfill of in-
dustrial waste generated b1 defendants.
On motion of Cefendants for judgment on
the pleadings, the District Court, Ditter, J.,
held that: (1) even though cit.y, as ow-ner of
site, might have been liable to federal or
state governments had those entitie-s cont-
menced clcanup, this did not preclude cit.r'

*4