Brown v South Carolina Electric Gas Company Appellants Brief

    THE CITY OF JACKSON AND THE 
STATE OF TENNESSEE, et al.,

Defendants-Appellees.

On Appeal From The District Court Of The 
United States For The Western District 

Of Tennessee, Eastern Division

BRIEF ON APPEAL OF DEFENDANT-APPELLEE CITY OF JACKSON

WILLIAM RUSSELL RICE
Third Floor, Fox Building 
203 East Main Street 
Jackson, Tennessee 38301

CHARLES S. RHYNE 
MARTHA B. PEDRICK

1000 Connecticut Avenue, N. W. 
Suite 800
Washington, D, C. 20036

Attorneys for Defendant-Appellee 
City of Jackson



STATEMENT OF THE ISSUE PRESENTED FOR 
REVIEW

Whether the District Court below abused its discre­
tion by dismissing a complaint alleging a violation of the 
Fourteenth Amendment's Equal Protection Clause because 

"plaintiffs have failed to offer any proof of discrimina­
tory intent on the part of the defendants."

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TABLE OF CONTENTS

TABLE OF AUTHORITIES-..... .......  ii
STATEMENT OF THE CASE...... . . . . ............... ........... • 1
STATEMENT OF THE FACTS ............ ................ ....... . 3

Electoral Activity By Black Voters......................  5
Availability Of The Political Process to Black

Candidates .........................................  6
Responsiveness Of Elected Officials To Black Voting 

Power, And To The Particular Needs of Black City 
Residents..........        6

Employment Of Blacks And Representation In .
Appointive Positions. .................    9

Provision Of Municipal Services To The Black
Community...............   10

SUMMARY OF ARGUMENT. ............... ....... ........ ........ 10
ARGUMENT......... ............     13

I. On The Record Before The District Court, There 
Was No Genuine Issue of Material Fact Thus 
Requiring Denial of Defendants' Motion For 
Summary Judgment.... ....................... 15

A. Plaintiffs' Response To The Motion For Sum­
mary Judgment Failed To Establish The Exis­
tence Of A Genuine Issue Of Material Fact...... 15

B. The District Court Properly Applied The 
Principles Recognized By This Court In 
Determining That There Was No Genuine Issue
Of Material Fact In The Record................. 20

II. The Uncontroverted Facts of Record In This Case
Establish That The Commission Form Of Government 
In Jackson Was Created And Has Been Maintained 
For Non-Discriminatory Reasons And Thus, The 
District Court's Grant Of Defendants' Motion For 
Summary Judgment, Based On City of Mobile v.
Bolden, Was Proper. ...............................22

Page
STATEMENT OF THE ISSUE PRESENTED FOR REVIEW, ..............  i

-ii-



Page
III. The District Court Properly Exercised Its 

Discretion To Grant Summary Judgment 
Without A Hearing. ........... ................  29

CONCLUSION. • ............................................. 31

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Cases

City of Mobile v. Bolden, 446 U.S. 55 (1980)............passim
City of Richmond v. United States, 422 U.S. 358

(19757T'.T:t ;'77. ..... 777". 7TTT777.... ................... 27
Kibort v. Hampton, 538 F . 2d 90 (CA5 1976)......... . 30

Lodge v. Buxton, 639 F.2d 1358 (CA5), cert, granted
sub nom. Rogers v. Lodge, No. 80-2100 (Oct. 6, 1981) . . 15,23,25,26

McMillan v. Escambia County, 638 F .2d 1239 (CA5 1981)...15,28

Smith v . Allwright, 321 U.S. 649 (1943)............ ....25
Terry v . Adams, 345 U.S. 461 (1952).....................25
Washington v. Finlay, __F .2d__(CA4 Nov. 17, 1981).......23,24,26,27

Zimmer v. McKeithen, 485 F .2d 1297 (CAS 1973) (en banc) , 
aff'd on-other grounds sub nom. East Carroll Parish
School Board v. Marshall, 424 U.S. 636 (19 76) .........10,11,15,23,

24,25,28

Constitution and Statutes
Thirteenth Amendment....... ............. .......... . 1,2

Fourteenth Amendment................. ......... . 1,2,12,23
Fifteenth Amendment....... . . . ....................... . 1,2,23
Voting Rights Act of 1965, 42 U.S.C. §1973 , et seq.....  1,23
42 U.S.C. §§1981, 1983 , 1985, 1986, 1988 , 2000d...... . 1,2

Miscellaneous
Moore's Federal Practice (2d ed.) §56.27 (1).......... . 13

TABLE OF AUTHORITIES
Page

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STATEMENT OF THE CASE

On March 21, 1977, plaintiffs, three black citizens 
of the City of Jackson, Tennessee, filed a complaint 
challenging the City's commission form of government and 
its system of at-large elections, both of which have exist­
ed in Jackson since 1915. Plaintiffs purport to represent 
the class of black citizens who, similarly to plaintiffs, 
register and vote in city elections and participate in 
the political affairs of the city.

Plaintiffs alleged that the commission form of govern­
ment with its system of at-large elections dilutes the 
voting strength of black citizens in violation of the 
Thirteenth, Fourteenth, and Fifteenth Amendments and denies 
the rights of black citizens secured by 42 U.S.C. §§1981,
1983, 1985, 1986, 1988 and 2000d.

After all parties conducted extensive, discovery, defen­
dants filed a motion for summary judgment on October 21, 1981. 
Defendants' motion, containing proposed findings of fact and 
conclusions of law which constituted defendants' statement of 
material facts as to which there was no genuine issue under 
Fed. R. Civ. P. 56(c), was accompanied by three affidavits. 
Plaintiffs responded to defendants' motion and defendants 
replied.

On March 21, 1981, the District Court granted defendants'



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motion for summary judgment. The Court held that, under 

City of Mobile v. Bolden, 446 U.S. 55 (1980), the portion 
of the complaint alleging violation of the Thirteenth 
Amendment and 42 U.S.C. §§1981, 1983, 1985, 1986, 1988 
and 2000d failed to state a claim upon which relief could 
be granted. Slip op. at 3, J.A. 119. Because the record 
disclosed that plaintiffs and black citizens register to vote 

and vote without hindrance in Jackson, the Court held, under 
Mobile, that plaintiffs' claim under the Fifteenth Amend­
ment was foreclosed. Id. Finally, the Court held that 
plaintiffs failed to offer any proof of discriminatory in­
tent on the part of defendants; that plaintiffs failed "to 
prove that the disputed (form of government) was conceived 
to operate as a purposeful device to further racial dis­
crimination. ..;" and that plaintiffs had not shown "that 
defendants' purpose was invidiously to minimize the voting 
potential of Negroes." Id., at 4, J.A. 120. The portions 
of the deposition of defendant Robert Conger, relied upon by 
plaintiffs in opposing the motion for summary judgment, as 
their sole proof of discriminatory intent were insufficient 
to establish that genuine or material issues of fact were 
in dispute and thus summary judgment was granted in accordance 

with Fed. R. Civ. P. 56(c). Id.



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By an act in 1915, the Tennessee legislature 

created a commission form of government for the City of 
Jackson. (Complaint %6 J.A. 8-9). From 1909-1915, the 
City operated under a mayor-alderman form, with eight 
aldermen elected from four multimember districts. Id.
There is at present no record of the deliberations lead­
ing to the adoption of the commission form of government 

in 1915 (Affidavit of Rice 1|2, J.A. 34).
Jackson's Board of Commissioners consists of a Mayor 

and two Commissioners. The Mayor serves as Commissioner 

of Public Affairs, Public Safety, Revenue and Finance.
One Commissioner is Commissioner of Education, Parks,
Recreation and Public Property. The third is Commissioner 
of Streets, Health and Sanitation, and Public Improvements 

(Complaint 1(5, J.A. 7-8).
Each of the 3 members of the City's Board of Commissioners 

has, since 1915, been elected at-large by all the voters of 
the City. Each member runs for a designated seat, and must 
obtain a majority of the votes cast for that seat. If no 
candidate for a particular Commission seat receives a majority, 
a runoff election is held between the two highest finishers 

(Complaint 1[6, J.A. 8-9).
Jackson's Charter was amended in 1969 to remove a 

high qualifying fee as a barrier to the candidacies of 
either blacks or whites (Answer of City of Jackson 1(6, J.A.

STATEMENT OF THE FACTS



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19-20). Since 1969, elections for City Commissioners 
have been non-partisan. Id.

One of the paramount purposes of the 1969 City 
Charter was to retain the commission form of government 
(Affidavit of Rice, 111, J.A. 33) , without substantial 
change (Tr. Depos. of Conger, at 90, J.A. 214). There 
was no request from anyone in 1969 to change the form 

of City government (Affidavit of Rice 1(3, J.A. 36). Black 
citizens served on the committee which studied the 1969 
Charter amendment (Tr. Depos. of Conger, at 33-34, J.A. 
157-158).

A proposal to change Jackson's form of government to 
a mayor-council plan was defeated in the recent past in a 
preference referendum (Tr. Depos. of Conger, at 59-62,

J.A. 183-86). The proponents of the change never asked 
for the first serious step in implementing a change, the 
appointment of a charter commission. (Id., at 65, J.A. 189). 
Similarly, a proposal for consolidation of the City govern­
ment with that of Madison County was defeated in the County 

Commission (Id., at 70, J.A. 194). Defendant Conger, who 
was sympathetic to a change in government (Id., at 70-71,
J.A. 194-95) assigned nonracial reasons to -the defeat of these 
proposals (Id., at 62, 70, J.A. 186, 194), and there is 
nothing in the record to suggest that proponents or opponents 
of the proposals for change were motivated by racial animus.



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Electoral Activity By Black Voters

Blacks constitute 33% of the voting-age population 
(18 years and over) of the City (Complaint 1(6 (a) , J.A. 9; 
Affidavit of Eugene R. Smith 1(11, J.A. 25). Each of the 

plaintiffs has for many years been a registered voter and 
has voted regularly in elections within the City of 

Jackson (Complaint 1(4, J.A. 7) . None of the plaintiffs 

has been denied the right to register or vote and none of 
the plaintiffs knows of any black person in the City of 

Jackson who has been denied these rights (Buchanan, Seals, 
Brooks Ans. to Interrog. Nos. 9-13, J.A. Supp. 8-9, 17-18, 
24) /

Each of the plaintiffs is active in the predominately 
black Tennessee Voters Council, known locally as Jackson- 
Madison County Voters Council (Buchanan, Seals, Brooks Ans. 
to Interrog. Nos. 5-6, J.A. Supp. 7, 16, 23). Mr. Buchanan 
serves as chairman of the Council (Tr. Depos. of Buchanan, 
at 8, J. A. 229).

Neither Tennessee, Madison County nor the City of 
Jackson has been covered by the provisions of :the Voting 
Rights Act of 1965, 42 U.S.C. §1973 et seq., designed to 
remedy low registration figures for black voters. Nor have 
federal voting registrars been appointed for the County 
or the City (Affidavit of Maridel Roberts,1(2, J.A. 21.)

V  J.A. refers to the Joint Appendix; J.A. Supp. refers to 
the Supplementary Joint Appendix.



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There never has been a complaint of racially discriminatory 

administration of the law pertaining to voters in City 
Commission elections. Id.

Availability Of The Political Process To Black Candidates 
The procedures for candidate qualification are open 

to black candidates equally with whites. There never has 

been a complaint of racially discriminatory administration 
of the laws pertaining to candidates for City Commissioner. 

Id. None of the plaintiffs could point to any interference 
with the right of any black Jacksonian to run for elective 
office (Buchanan, Seals, Brooks Ans. to Interrog. Nos. 15- 
16, J.A. Supp. 9-10, 17, 25).

Responsiveness Of Elected Officials To Black Voting Power, 
And To The Particular Needs of Black City Residents

Although black voters in Jackson have voted over­
whelmingly for black candidates for Commissioner (Compaint 
116(a)(1), J.A. 9), there has been substantial white voting 
for black candidates. This was demonstrated even within 
the paucity of election data available for City Commissioner



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o /elections.— '

The only black candidate to run for City Commissioner 
within memory is Dr, Wesley McClure, who ran in 1975 and 

1977. In 1975, Dr, McClure received 34% of the vote in a 
three-way general election; in the runoff election, Dr. 

McClure received 37% of the vote (Affidavit of Smith, 
at 1(3, J.A. 23) . In 1977, Dr. McClure again was in a run­

off election; there he received 40% of the vote (Id. at 

1!4, J. A. 24). Thus, Dr. McClure received substantial white 
suPPort every time he ran for commissioner.— This sub-

_Voter registration data in Jackson are not compiled by
the race of the registrant. (Affidavit of Smith, 1(6, J.A. 24). 
Using census data, it was determined that the voting age popula­
tion of the City in 1977 was 33% black. (Id., 1(11, J.A. 24-25).
Thus, if every eligible black voter registered, voted, and voted 
for a black candidate for Commissioner, that black candidate would 
receive 33% of the total vote, at least. He would receive greater 
than 33% of the vote if he attracted the votes of whites. Thus, 
assuming full black electoral participation, black candidates 
receive white votes to the extent they receive more than 33% of 
the total vote. But, not every eligible black has registered to 
vote. Plaintiffs alleged, in 1(6 (a) (2) of the Complaint, J.A.
9-10, a substantial disparity between registration rates of black 
and white voters. And, not every registered voter actually votes. 
Sometimes, as few as 20% of registered voters actually turned out 
for elections in the City (Affidavit of Smith, 1(5, J.A. 24). There­
fore, a black candidate receiving more than 33% of the vote likely 
received a substantial number of white votes.

_3/ Defendants also demonstrated the considerable support in the 
white community for Dr. McClure in the 1975 election. (Tr. Depos. 
of Conger, at 22, J.A. 146).



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substantial trend of white crossover voting (white voters 

choosing a black candidate) forecloses any inference that 
voting in Jackson is polarized along racial lines.

The incumbent Commissioners are well aware of this 
white crossover vote. They see black votes as essential 

to victory (Tr. Depos. of Conger, at 14, J.A. 138). Even 
when campaigning against a black opponent, the Commissioners 
seek black votes. Defendant Parham did so in running against 
Dr. McClure 1977 (Tr. Depos. of Conger, at 30, J.A. 154; Tr. 
Depos. of Parham, at 49, J.A. 319),

The black vote can, more easily than the white, be mar­

shalled behind an acceptable white (or black) candidate.
The Tennessee Voters Council, a black slating organization, has 
been active in Jackson politics. This organization endorses 
candidates, distributes sample (filled in) ballots (called 
guide cards) to its members, and assists black voters (e.g., 
by providing transportation to the polls) (Tr. Depos. of 
Buchanan, at 8, 11, J.A. 229, 232; Tr. Depos. of Brooks, at 6,7, 
J.A. 492-93).

In recent elections, every candidate —  black and white —  
has sought the support of plaintiff Buchanan's Voters Council 
(Tr. Depos. of Buchanan, at 13, J.A. 234). Each of the plain­
tiffs has been contacted, often as leaders in the black com­
munity, by white candidates seeking either individual or 
organization support (Buchanan, Seals, Brooks Ans. to Interrog. 
No. 17, J.A. Supp. 10, 18, 25).



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Employment Of _Blacks And Representation In Appointive Positions 

The City Commissioners' make appointments to advisory 
boards. No city board is without black representation (Tr. 
Depos. of Conger, at 42, J.A. 166). Plaintiff Buchanan 

has been appointed to both the City Utility Board and the 
Community Development Board (Buchanan Ans. to Interrog. No.
18, J.A. Supp. 25). Plaintiff Brooks served on a private 
Goals for Jackson committee to study Jackson's form and 
operation of government (Brooks Ans. to Interrog. No. 20,
J.A. Supp. 11-12). Blacks were appointed to the Commission 
whose study led to the 1969 City Charter (Tr. Depos. of Conger, 
at 35, J.A. 159). Plaintiff Seals serves as the City's 

affirmative action officer (Tr. Depos. of Seals, at 6, J.A.
477). He was appointed based on his agreeability to the 

three Commissioners, and on his prior service as president 
of the NAACP (Tr. Depos. of Conger, at 50-52, J.A. 174-76).

All hiring in the City government is done by the Com­
missioners themselves (Tr. Depos. of Parham, at 15, J.A. 284;
Tr. Depos. of Conger, at 44-46, J.A. 168-70). Municipal 
employment of blacks is improving (Tr. Depos. of Buchanan, 
at 43-44, J.A. 264-65). For example, in 1970 there were no 
black foremen or operators in the City's Streets Department.

Now, 5 of 17 are black, a proportion that approaches the 
racial composition of the City population. Including laborers,



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two-thirds of the Department's employees are black (Tr.

Depos. of Parham, at 53-55, J.A. 323-25). In the Health 

and Sanitation Department, over half of the foremen are 

black (Tr. Depos. of Parham, at 55, J.A. 325).

Provision Of Municipal Services To The Black Community
Federal funds are directed at the provision of municipal 

services in the black areas of Jackson (Tr. Depos. of 
Buchanan, at 21, 36, J.A. 242, 257; Tr. Depos. of Conger, at 
88, J. A. 212). Much of the direction is performed by the 

City's Community Development Board, on which Mr. Buchanan 
sits (Tr. Depos. of Buchanan, at 21, J. A. 242) and the 
head staff-member of which is black (Id. , at 43; Tr. Depos. 

of Smith, at 37, J. A. 434).
The Planning Commission, which has black members (Tr. 

Depos. of Conger, at 42, 87, J.A. 166, 211), develops the 

plan from which street improvement projects are selected 
(Tr. Depos. of Parham at 23, 32, J.A. 297-301).

SUMMARY OF ARGUMENT

Plaintiffs filed this suit nearly five years ago.
Plaintiffs' Fourteenth Amendment vote dilution claim was

4 /pleaded in the language of Zimmer v. McKeithen.—  In

4/ 485 F .2d 1297 (CAS 1973) (en banc), aff'd on other grounds
sub nom. East Carroll Parish SchooT~"Board v. Marshall, 424 U.S. 
636 (1976) .



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Citi^fjtobile v. Bolden, 446 U. S. 55 (1980), the Supreme 

Court held that a Fourteenth Amendment vote dilution claim 
required a showing of intentional discrimination, 446 U.S., 
at 66, and further held that the Zimmer factors were in­

sufficient to prove intentional discrimination, Id., at 73.
Three years after the commencement of this action, 

and after extensive discovery conducted by all parties, 

defendants moved for summary judgment. That motion was based 
on a record of uncontroverted facts which established the 
absence of discriminatory intent in the creation and main­

tenance of the Commission form of government with its system 
of at-large elections in the City of Jackson, Tennessee.

Although plaintiffs "Zimmer allegations" (contained in 
1(6 of the Complaint, J. A. 8-11) were not relevant to a claim 

of vote dilution under the Fourteenth Amendment after Mobile, 

defendants demonstrated, nevertheless, by comparing plaintiffs' 
allegations with the proof produced in Mobile, that each of 

plaintiffs' allegations had been rejected by the Supreme Court. 
(Memorandum of Points and Authorities in Support of Defendants' 
Motion for Summary Judgment, at 13-22, J.A. 89-98). Moreover, 

contrary to plaintiffs' assertions of racially polarized voting 
and nonresponsiveness, defendants demonstrated the presence 
of white cross-over voting in elections with a black candidate



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(Proposed Findings of Fact, 1(30-38, J.A. 66-68 , hereafter 
referred to as "Proposed Findings"); the responsiveness 

of elected officials to black voting power (Id., 1I38-50,

J.A. 67-69) and to black needs as measured by the distribution 

of municipal services between the black and white communities 
and black representation on city boards, committees and 

in municipal employment. (Id., 1(52-56, 59 , 62-64 , J.A. 9-10).
Plaintiffs' response to the motion made only three 

references to the record in an effort to identify the exis­
tence of disputed facts. The only reference relevant to a 
claim of a violation of the Fourteenth Amendment's Equal 

Protection clause was to defendant Conger's statements re­
garding a change in the wording of a referendum proposal to 
change the commission form of government. As defendants 

demonstrated, the statement did not establish the existence 
of a genuine issue and, as a matter of law, was insufficient 

to prove the existence of discriminatory intent. (Defendants' 
Reply, at 2-3, J. A. Supp. 2-3).

Plaintiffs' failure to meet their burden of producing 
sufficient evidential material to establish the existence of 
a genuine issue of material fact made disposition by summary 
judgment appropriate. Because the uncontroverted facts of 
record established the lack of a discriminatory motive in 
the creation and maintenance of the commission form of govern­
ment , under Mobile, summary judgment for defendants was proper.



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By local rule, the grant of defendants' motion for 
summary judgment without affording the opportunity for a 
hearing was within the District Court's discretion. The 
standard guiding the court's exercise of discretion was 
whether the hearing would be helpful or necessary. In 

light of the plaintiffs' response to the motion for summary 
judgment, and the record before the court, it was apparent 

to the court that plaintiffs had had ample time to assemble 
their proof. Plaintiffs had made no claim under Fed. R. 
Civ. P. 56(f), of the unavailability of proof. Given the 

facts produced by plaintiffs, it was obvious that a hear­
ing would produce no more facts, and thus, the Court's

exercise of its discretion not to afford a hearing was pro­
per .

ARGUMENT
In reviewing the grant of a motion for summary judg­

ment, the court reviewing the record must determine whether 
there is any genuine issue of material fact, and, if not, 

whether the substantive law was correctly applied. Moore's 
Federal Practice (2d ed.) 1(56.27(1).

In light of the requirement that racially discriminatory 
intent be shown in a vote dilution case, City of Mobile v.



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Bolden, 446 U. S. 55 (1980), the only facts relevant to 

the District Court's consideration of defendants' motion 
for summary judgment where those regarding the intent behind 

the creation and maintenance :o£ the at-large election system 
of the commission form of government of Jackson , Tennessee, 

Plaintiffs' six page response to defendants' motion 

for summary judgment consisted principally of a restatement 
of the allegations contained in the complaint, most of 

which, after Mobile were irrelevant to a vote dilution case. 
Even had they been relevant, plaintiffs' allegations, lack­
ing any supporting facts as required by Fed. R, Civ. P.

56(e), of racially polarized voting and nonresponsiveness 
failed to show that there was any genuine issue for trial. 
Similarly, statements of defendant Conger relief upon by 
plaintiffs to show the existence of a genuine issue as to 
the intent behind maintenance of the commission form of 

government, were insufficient to establish the existence of 
discriminatory intent. The District Court, applying Mobile, 
concluded that summary judgment for defendants was proper,

On appeal, plaintiffs succeed only in showing that 
their response to the motion for summary judgment, as well 
as the entire record before the District Court, lacked the 
requisite demonstration of facts showing the existence of 
a genuine issue for trial. Contrary to plaintiffs' inter-



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pretation of the governing principles in Lodge v. Buxton,
639 F.2d 1358 (CA5), cert, granted sub nom. Rogers v. Lodge, 
No. 80-2100 (October 6, 1981),— / the District Court 
correctly applied the principles of Mobile to the facts 

before it and, therefore, the grant of summary judgment 
for defendants was proper.

I. ON THE RECORD BEFORE THE DISTRICT COURT, THERE WAS 
NO GENUINE ISSUE OF MATERIAL FACT THUS REQUIRING 
DENIAL OF THE MOTION FOR SUMMARY JUDGMENT

A. Plaintiffs Response To The Motion For Summary 
Judgment Failed To Establish The Existence Of 
A Genuine Issue Of Material Fact

Fed. R. civ. P. 56(c) provides that a motion for

summary judgment "shall be rendered forthwith if the plead-
ings, depositions, answers to interrogatories, and admissions

The decision in Lodge is in direct conflict with the de­
cision of another panel of the same court decided one month 
earlier. In McMillan v. Escambia County, 638 F .2d 1239 (CA5 
1981), the Court held that "Zimmer v. McKeithen has been in­
validated by Bolden," 638 F.2d, at 1247T~n. 16 7 and that the 
Zimmer factors of whether whites campaign for black votes and 
whether people in elective positions are responsive to minority 
needs are no longer relevant. Id., at 1248.



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on file, together with the affidavits, if any, show that 

there is no genuine issue as to any material fact and that 
the moving party is entitled to a judgment as a matter of 
law...." The opposing party's response to a motion for 
summary judgment, supported by affidavits or as otherwise 

provided by the rule, "may not rest upon the mere allegations 
or denials of his pleading, but his response, by affidavits 
or as otherwise provided..." must set forth specific facts 
showing that there is a genuine issue for trial. Fed. R.
Civ. P . 56(e).

Responding to defendants' motion for summary judgment, 
plaintiffs recognized their burden to prove discriminatory 
intent. (Plaintiffs' Response, at 4, J.A. 114.) Plaintiffs 
made three references to the record in an attempt to show 
the existence of a dispute on this issue. Two of those re­
ferences were irrelevant to the intent issue. The remaining 
reference was insufficient to establish the existence of a 
genuine issue as to intent.

The only relevant support contained in plaintiffs' 
response, for the allegation of discriminatory intent relied 
solely on statements from defendant Conger's deposition. 
Plaintiffs utilized defendant Conger's statements regarding



-17-

the Commission's change in wording of a referendum pro­
posal to change the form of government to aver that the 
change had been confusing and, therefore, that the pro­
posal had been defeated by the electorate. (Id., at 3,
J.A. 113). Plaintiffs also cited defendant Conger's 

reference to a series of annexations which plaintiffs 
asserted, without proving, increased the number of white 
voters in Jackson.

As defendants showed (Defendants' Reply, at 2,
J. A. Supp. 2), defendant Conger stated that, in fact, 

there was no confusion (Tr. Depos., at 62-64, J. A. 186- 
188). Moreover, the wording, paraphrased at Tr. Depos. 
of Conger, 60, J.A. 184, is difficult to criticize as 
probative of racial animus.

Plaintiffs' reliance on defendant Conger's state­
ments regarding the annexations fell equally short of 

establishing the existence of a genuine issue of material 
fact. As defendants demonstrated (Defendants' Reply, 
at 3, J. A. Supp. 3), defendant Conger had testified that 
of the fifteen annexations he knew of, at least one was 
unpopulated and another was "almost a hundred percent black 
annexation." (Tr. Depos., at 80, J.A. 204). No other of 

the annexations was specifically addressed. Moreover, plain 
tiffs failed to establish any facts to support their alle-



-18-

gation that the annexations were accomplished for the 
sole purpose of reducing the black population percentage.

Plaintiffs also assert that the existence of racially 
polarized voting was in dispute. Brief for Appellants, 

at 22. In fact, plaintiffs' response on this issue amounted 

to no more than a restatement of the allegation of racial 

bloc voting contained in the complaint, without further offer 
of proof. (Plaintiffs' Response, If 8, J.A. 113). Plaintiffs 
made no response to defendants' demonstration of the 

existence of white crossover voting in elections in which a 
black was a candidate for the office of Commissioner. 

(Proposed Findings, 1(30-38, J.A. 66-68 .) This clearly did 
not comply with the requirement of Fed. R. Civ. P. 56(e).

The remaining "disputed facts" plaintiffs claim to have 
identified in their response to the motion for summary judg­
ment were responsiveness of defendants to the needs of 

black citizens as evidenced by disparate distribution of 
municipal services between black and white neighborhoods and 
by discrimination against blacks in municipal employment.

6/ In fact, as plaintiffs alleged, Jackson was 31.3% black 
in 1976 (Plaintiffs' Response, at 3, J.A. 113). As defendants 
attempted to show, using plaintiffs' figures, and assuming that 
every new Jackson resident from 1970-76 was an annexed white 
voter, the reduction in the percentage of black population was 
de minimis. (Reply at 4-5, J.A. Supp. 4-5).



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Brief for Appellants, at 23. In fact, plaintiffs made 
no response on the issue of employment of blacks other 
than to state, without offering any proof, that prior to 
1967, black citizens were excluded from the various boards 
and commissions of the City. (Plaintiff 's Response, 1[17,
J. A. 112.) Plaintiffs made no response to defendants' 
demonstration of the extent of black representation on 

city boards and in city departments (Proposed Findings,
111(52-55 , 59 , 62-65, J.A. 70-71), although plaintiffs in­

dicated that employment of blacks was improving. (Tr.
Depos. of Buchanan, at 43, J.A. 264).

With regard to the alleged disparity in municipal 
services between black and white neighborhoods, plaintiffs, 
in their response, again provided no reference to the record 
for "testi(mony) by the plaintiffs" on this point, (Plaintiffs' 
Response, at 3, J. A. 113), although plaintiffs indicated 
that they advised the City through service on boards and 

commissions (Buchanan Ans. to Interrog. No. 18, J.A. Supp.
25 26), and that blacks sometimes but not always, got the 
services they demanded. (Tr. Depos. of Buchanan, at 15-17,
25, 41, J.A. 236-238 , 246, 262.)-1/

_7_/ Plaintiffs only attempt to allege the existence of addi­
tional facts consisted of statements that they had engaged an 
expert to evaluate the extent of disparity in municipal services.

aintiffs Response at 3, n. 1, J.A. 113. Since service dis­
parities are irrelevant in a vote dilution case under Mobile, 

this _ overdue proof, even if supporting the disparities 
alleged, which is doubtful, could not have saved the plaintiffs' 
case. As the Court in Mobile suggested, 446 U. S ., at 73, there 
are other, more direct remedies for services disparities pro­perly proved.



-20-

In their brief, for the first time, plaintiffs maintain 
that summary judgment was improperly granted because "proof 
concerning defendants' (sic) of discriminatory intent was 
primarily in the hands of defendants...." Brief for Appellants, 
at 22. The short answer to this claim of error is that 
Fed. R. Civ. P. 56(f) provides a procedure for the opposing 

party in such a situation. The court is authorized to re­
fuse the application for judgemnt or to order a continuance 

to permit affidavits to be obtained or depositions to be taken 
or discovery where it appears from the affidavits of the 
opposing party that he cannot present facts essential to 
his position. Fed. R. Civ. P. 56(f). Plaintiffs made no 

such claim in their response to the motion for summary judg­
ment and made no attempt to avail themselves of the pro-

p /visions of Rule 56(f).— '

B. The District Court Properly Applied The Principles 
Recognized By This Court In Determining That There 
Was No Genuine Issue Of Material Fact In The Record

This Court has acknowledged that the provisions of 
Fed. R. Civ. P. 56(e) do not alter the basic standard govern­
ing the grant of a motion for summary judgment under Rule 
56(c). Smith v. Hudson, 600 F .2d 60 (6th Cir. 1979), cert.

8 / In their brief, plaintiffs aver generally to the lack of 
written legislative history for legislative enactments, but 
made no such claims in responding to the motion for summary judg­
ment. Brief for Appellants, at 13.



-21-

— _ -!-£se(̂ ' 444 U. S. 985 (1980). Plaintiffs rely on
— v ‘ Hudson, supra, for their argument that summary 
judgment was improperly granted because the issue involved 
was the intent behind the enactment and maintenance of 
the commission form of government in Jackson. Brief for 
Appellants, at 10.

Plaintiffs reliance on Smith v. Hudson, supra, is 
misplaced. In Smith, this Court reversed the grant of a 
motion for summary judgment because the lower court failed 
to examine all of the discovery materials in the case and 
relied instead solely upon the affidavits filed with the 
motion for summary judgment in determining that no genuine 

issue of material fact existed. In addition, the lower court 
relied on the lack of a timely response by the plaintiffs 
to the motion. 600 F.2d, at 65-66.

Unlike Smith, plaintiffs here responded to defendants’ 
motion for summary judgment with all of their proof. They 
made no claim that they were unable to present facts essen­
tial to justify their opposition. As demonstrated above, 
plaintiffs’ response amounted to little more than mere 
repetition of the allegations of the complaint. What

V  Despite the result reached in Smith, this Court acknow­
ledged that " [t]he thrust of Rule 56(e) is that a party may not 
simply rest on the allegations in his pleadings in opposing a 
motion for summary judgment...." 600 F.2d, at 64-65.



-22

proof" plaintiffs did produce, much of which was irrelevant 
to a claim of vote dilution, was insufficient to establish the 
existence of discriminatory intent. The District Court pro­
perly considered all of the documents filed in the case, the 

affidavits accompanying defendants' motion and plaintiffs' 
response thereto, and correctly concluded that no genuine 

issue of material fact as to the issue of intent existed.
Slip op., at 4-5, J .A . 120-21.

II. THE UNCONTROVERTED FACTS OF RECORD IN THIS CASE ESTABLISH
THAT THE COMMISSION FORM OF GOVERNMENT IN JACKSON WAS CREATED 
AND HAS BEEN MAINTAINED FOR NON-DISCRIMINATORY REASONS AND 
THUS, THE DISTRICT COURT'S GRANT OF DEFENDANTS' MOTION FOR 
SUMMARY JUDGMENT, BASED ON CITY OF MOBILE V. BOLDEN, WAS PROPER

Plaintiffs recognize that the effect of the decision

to require proof of an invidious racial motive 
on the part of those responsible for legislative action or 
inaction to invalidate an at—large local election plan under 
the Fourteenth Amendment. Brief for Appellants, at 17.

Plaintiffs maintain, however, that Mobile left open the question 
of what type and how much evidence is required to establish 
proof of a discriminatory purpose. Brief for Appellants, at



-23-

19 * ^ Based on the opinion in Lodge v. Buxton, 639 F.2d 
1358 (CA5) cert, granted sub nom. Rogers v. Lodge, No.

80-2100 (October 6, 1981), plaintiffs assert that the "Zimmer
factors" ^  may be used to prove the existence of discriminatory 
intent. Brief for Appellants, at 19.iH/

10./_ Plaintiffs remaining claims of questions left open by 
Mobile, i.e., whether vote dilution violates §2 of the Voting 
Rights Act of 1965 and whether a private right of action exists 
under §2, Brief for Appellants, at 16, are irrelevant. Tennessee 
has never been covered under §4 of the Voting Rights Act, 42 U.S.C. 
§1973b (because discrimination in voting cannot statistically be 
presumed to have occurred under the criteria of §4), and therefore, 
that statute is not, and cannot be, involved in this case. Plaintiffs 
9-lso maintain that the issue of whether a claim of vote dilution 
a proper Fifteenth Amendment claim was left open in Mobile. The re­
sults reached by the lower courts on this issue are in conflict as 
revealed by_plaintiffs' citations. Brief for Appellants, at 17.
Even if an inhibition on black voting had been shown, (and plain­
tiffs have denied that such an inhibition exists here, Plaintiffs' 
Answers to Interrog., Nos. 9-13, J.A. Supp. 8-9, 17-18, 24), it 
would ̂ violate the Fifteenth Amendment, under the rule in Mobile, 
only if undertaken for the purpose of discriminating against black 
voters. 446 U.S., at 65. Accord, Washington v. Finlay, F.2d 
(CA4 Nov. 17, 1981). For the same reasons that purposefuT~dis- 
crimination cannot be shown on this record under the Fourteenth 
Amendment, that discrimination cannot be shown under the Fifteenth 
Amendment.

11/ Zimmer v. McKeithen, 485 F.2d 1297 (CAS 1973) (en banc), aff'd
g'rounds_sub nom. East Carroll Parish School Board v. Marshall, 

424 U.S. 636 (1976) . The Supreme Court specifically disclaimed-  
any "approval of the constitutional views expressed by the Court 
of Appeals." 424 U.S., at 638.

12/ Applying Mobile, the Fourth Circuit has recently upheld the 
at-large election system of the commission form of government of 
Columbia,South Carolina, in the absence of sufficient proof of 
discriminatory effect or purpose. Washington v. Finlay, F.2d 
(CA4 Nov. 17, 1981) .Although the trial court's decision was issued 
prior to Mobile, the Fourth Circuit rejected plaintiffs' argument 
that remand for consideration in light of Mobile was required. The 
facts of record in that case established that blacks ran unrestricted 
for office, registered and voted without hindrance and that voting 
was not substantially polarized. Moreover, the court found the de­
fendants responsive to black needs as measured by substantial black 
employment and representation in appointive positions, heavy allocation 
of federal funds to the black community and substantially equal pro-

footnote continued next page)



-24-

Use of the Zimmer factors as the sole proof of dis­
criminatory intent was clearly rejected by the Supreme Court 
in Mobile, 446 U . S ., at 73. As demonstrated by defendants 
in their motion for summary judgment, application of the 
Supreme Court's discussion of each of the Zimmer factors in 
Mobile to the facts pleaded by the plaintiffs here in their 

complaint made clear that the Supreme Court had specifically 
rejected that theory of these plaintiffs' case. (Memorandum 
of Points and Authorities in Support of Defendants' Motion 
for Summary Judgment, at 13-22, J.A. 89-38, hereafter referred 
to as "Points and Authorities".)

Specifically, plaintiffs maintain that the presence of
13/racially polarized voting—  may be utilized to show dis­

criminatory intent and that the existence of racially polarized 
voting in Jackson was in dispute. Brief for Appellants, at
22. Proof of the existence of racially polarized voting,

14 /relied upon by the District Court in M o b i l e w a s  rejected

(footnote continued from previous page)

vision of essential services and improvements. Plaintiffs' "proof" 
of polarized voting and unresponsiveness in this case fell far short 
of the proof offered and rejected in Washington v. Finlay.
13/ The first Zimmer factor (access of blacks to the electoral 
system) was reflected in plaintiffs' claims of failure to elect 
a black; past inhibitions on registering and voting resulting in 
a present disparity in registration rates between blacks and whites; 
and racially polarized voting. (Complaint 116(a) (1) - (3) , (6) , J.A.
9-10).
_lj/ See 423 F.Supp., at 388-89. From the fact of racially polarized 
voting, the District Court found that blacks could never be elected 
at-large (unless they increased their share of the Mobile population 
from 35% to a majority), id., and that at-large elections discouraged 
blacks from seeking public office, id. The Supreme Court described 
these as "gauzy sociological considerations (which have no constitu­
tional basis.)" 446 U . S ., at 75, n .22.



-25-

by the Supreme Court as insufficient to prove discrimina- 
15 /tory intent.— 7

Even if racially polarized voting was sufficient to
prove discriminatory intent, contrary to plaintiffs' 
assertion, the record in this case reveals that the exis­

tence of racially polarized voting in Jackson was not in 

d i s p u t e . P l a i n t i f f s '  response to defendants' demonstra­
tion of the existence of white crossover voting in elections 
with a black candidate (Proposed Findings, 1(30-38 , J.A. 66-68) 
consisted of the bare assertion that "black and white voters 
tend to vote as a bloc and along racial lines." (Plaintiffs' 
Response, at 3, J.A. 113). In the absence of any proof to 
support the allegation of racially polarized voting, the 
District Court properly found that there was no dispute as 
to this issue

The remaining alleged disputed facts identified by 
plaintiffs involved the second Zimmer factor (responsiveness 
of elected officials to black needs): discrimination against 
blacks in employment and on city boards and disparate 
provision of municipal services between black and white 
neighborhoods (Plaintiffs' Response, at 2-3, J.A. 112-

15/ 446 U.S., at 65 (rejecting the argument from Smith v. Allw -
right and Terry v. Adams) . ~~

16̂ / The Fifth Circuit's opinion in Lodge v. Buxton, supra, upon 
which plaintiffs rely, is noteworthy for its discussion of the 
weight to be given evidence of racially polarized voting. "Like 
unresponsiveness, it is a factor of greater significance in its 
absence. A plaintiff would be hard pressed to prove that a system 
was being maintained for invidious purposes, without proof of bloc 
voting. 639 F.2d, at 1378 n. 41. In light of defendants' demonstra­
tion of the presence of white crossover voting in elections with a 
black candidate, and of the necessity of the black vote to incumbents 
seeking re-election, plaintiffs' failure to produce any proof in 
support of this allegation was fatal.



-26-

113).•—  Again, as demonstrated by defendants (Points and

Authorities, at 16-17, J.A. 92-93), evidence of racial dis­
crimination is relevant only as the most tenuous and cir­
cumstantial evidence of the constitutional invalidity of 

the at-large electoral system under Mobile, 446 U.S., at 
74. Moreover, the record compiled in this case revealed 
that the city and its commissioners are in fact responsive 
to black needs. (Proposed Findings, at 5-11, J.A. 66-72).— 7 

Moreover, defendants showed that white candidates cam­
paigned actively for black votes and, as incumbents, saw 
the black vote as essential to re-election. (Proposed Findings 
1138-45, J.A. 67-69). These facts disproved any allegation 
that the incumbent commissioners maintained the system 
of at large elections for the purpose of discriminating 
against black citizens.

17 /

17/ As indicated, supra, p. 19, plaintiffs failed to support 
even these allegations with evidence from the record.
18/ Indeed, evidence of unresponsiveness is essential to the 
successful establishment of a vote dilution claim, under the 
reasoning of the Fifth Circuit in Lodge v. Buxton, supra, upon 
which plaintiffs rely. "An essential element of a prima facie 
case is proof of unresponsiveness by the public body in question 
to the group claiming injury. Proof of unresponsiveness, alone, 
does not establish a prima facie case sufficient to shift the 
burden of proof to the party defending the constitutionality of 
the system; responsiveness is a determinative factor only in its 
absence. (Emphasis added) 639 F.2d, at 1374.
Once again, plaintiffs' failure to produce facts in support of the 
allegation of unresponsiveness was fatal in the face of defendants' 
demonstration of the extent of black representation on city boards 
and in city departments, and of the extent of the expenditure of 
federal funds for services in predominately black neighborhoods. 
Plaintiffs produced no proof such as that produced by the plaintiffs 
in L°dge v. Buxton, supra, 639 F.2d, at 1377 , n. 37 on the extent of 
services disparities or such as that offered in Washington v. Finlay,
_F .2d __(CA4 Nov. 17, 1981). In the latter case, the Fourth Circuit
characterized the testimony or non-expert witnesses for the plaintiffs 
as "impressionistic observations, unsupported by any technical data

(footnote continued next page)



-27-

Plaintiffs rely on statements from defendant Conger's 
deposition regarding the change in wording of a referendum 
proposal to change the commission form of government, and 
statements regarding a series of annexations which plaintiffs 
asserted, without proving, increased the number of white 

voters in Jackson, to show the existence of a genuine issue 
of intent. As defendants demonstrated, supra n. 6, 

plaintiffs own numbers refuted their assertion that the 

annexations significantly increased the number of white voters 
in proportion to the number of black voters. (Defendants' 

Replyt at 3-5, J.A. Supp. 3-5.) Moreover, plaintiffs failed 
to establish the necessary prerequisites to a successful 

claim of a racially motivated annexation —  a pre-annexation 

black population near 50% and a post-annexation diminution of 
black population strength and that the annexations were not 
supported by neutral, non-racial reasons. City of Richmond 
v. United States, 422 U. S. 358 (1975).

Based on defendant Conger's statements regarding the 
change in wording of a referendum proposal to change the

(footnote continued from previous page)

and preponderate^ non-specific as to time and extent" and re­
jected it "because of its nonspecificity and limited nature where 
specificity and comprehensiveness are both possible and critical
to fair fact-finding." ___F.2d., at __, n. 7. Consisting of
no more than the mere allegation of employment discrimination and 
disparate provision of services, plaintiffs "proof" was properly 
rejected by the District Court.



-28-

commission form of government, plaintiffs averred that the 
change was confusing and, thus, defeated by the electorate. 
Plaintiffs rely on these statements to show the existence 
of a genuine issue of intent. Brief for Appellants, at 20. 

This allegation was the only allegation of a violation of 
the Equal Protection clause that was not cast in the terms 
of the discredited Zimmer analysis. However, as defendants 
demonstrated (Defendants' Reply, at 2-3, J.A. Supp. 2-3), 
plaintiffs unsupported claim was insufficient in light of 
the rejection of an even stronger claim of referendum mani­
pulation in McMillan v. Escambia County, 638 F .2d 1239 (CA5 
1981). In McMillan, evidence that commissioners had preserved 
the at-large sytem by refusing, against the recommendation 
of charter revision commissions, to submit proposals to change 
to single-member districts was held insufficient to prove

1 Q /discriminatory maintenance. 638 F.2d, at 1246.

1 9 / Here, as the record demonstrated, the proponents of a 
proposal to change the commission form of government never asked 
for the first serious step in implementing a change —  the appoint­
ment of a charter commission. (Tr. Depos. of Conger, at 59-62,
J.A. 183-186). Blacks served on the committee which studied the 
1969 charter amendment. (Tr. Depos. of Conger, at 33, 34, J.A. 
157-58). There was no request from anyone in 1969 to change the 
form of government. (Affidavit of Rice, 1(3, at 4, J.A. 36).



-29-

III. THE DISTRICT COURT PROPERLY EXERCISED ITS DISCRETION
TO GRANT SUMMARY JUDGMENT WITHOUT A HEARING

Fed. R. Civ. P. 56 does not expressly require that 
a hearing be held on a motion for summary judgment. Fed.
R. Civ. P. 78 and 83 authorize the district courts to 

provide for the submission and determination of motions 
without oral hearing upon brief written statements of reasons 
in support and opposition.

By local rule, grant of defendants' motion for summary 
judgment without a hearing, despite plaintiffs' request, 
was within the discretion of the District Court.— ^

20_/ Local Rule 8(b) of the U. S. District Court for the Western 
District of Tennessee, provides: "Upon the filing of a motion 
and the timely filing of the response, if any, the motion shall 
be submitted to the Court for a ruling unless a hearing has been 
requested and granted as hereinafter provided...." Rule 8(c) 
provides: "If a hearing on the motion is desired by counsel,
such hearing should be requested in the motion or response; 
if the Court determines that such hearing would be helpful or 
necessary, the Court will set the date and time of the hearing...."



-30-

It has been held that the hearing referred to in Fed. R.
Civ. P. 56(c) does not necessarily mean an oral hearing.
Kibort v. Hampton, 538 F.2d 90 (CA5 1976).

What the rule contemplates is 10 day 
advance notice to the adverse party 
that the matter will be heard and 
taken under advisement as of a cer­
tain day. This provides the adverse 
party with an opportunity to prepare 
and submit affidavits, memoranda and 
other materials for the court to con­
sider when ruling on the motion. If 
the adverse party is given this oppor­
tunity, then he has been heard within 
the meaning of Rule 56(c). 538 F.2d, 
at 91. 21/

Defendants' motion for summary judgment was filed on
October 21, 1980. The District Court granted the motion on
March 31, 1981. Plaintiffs had ample time to respond to

2 2/the motion and did so.—  Plaintiffs responded with all of

21/ The Court also expressed its opinion that local rules, such 
as the rule involved here, requiring motions for summary judgment 
to be accompanied by briefs and requiring opposing affidavits 
and briefs to be filed within a period of not less than 10 days 
after which the court will consider the motion, appear to afford 
adequate hearing within the meaning of Rule 56. 538 F.2d, at 91, 
n . 1.

22/ As plaintiffs' citation to authority, Brief for Appellants, 
at 25, reveals, motions for summary judgment without affording 
an opportunity for a hearing have been reversed where the court 
failed to comply with the time requirements of Rule 56(c) and 
the opposing party lacked adequate time to respond to the motion.



-31-

their proof of the alleged discriminatory intent of de­

fendants and of alleged nonresponsiveness of defendants.— ^ 
Plaintiffs' three "citations" to the record consisting 
primarily of statements of defendant Conger, failed to 

establish the existence of disputed fact as to intent.
A hearing would have produced no more facts, therefore, 
the District Court properly exercised its discretion to 
grant summary judgment without oral argument.

CONCLUSION
Plaintiffs commenced their challenge to the City 

of Jackson's commission form of government and its system 
of at large elections nearly five years ago. Defendants' 
motion for summary judgment, filed over three years after 

the initiation of the suit, and subsequent;to the decision 
in Mobile, demonstrated the lack of a basis in law and 
fact for plaintiffs' claims.

23/ Plaintiffs' claim of the unavailability of a study by its 
expert on the subject of municipal services distribution between 
black and white neighborhoods (Plaintiffs' Response, at 3, n.l,
J .A . 113) failed to comply with the requirements of Rule 56(f). 
Whatever the phantom study would have shown, the District Court 
properly disregarded it as irrelevant to a showing of discrimina­
tory intent in light of Mobile.



-32-

Identical assertions to those made in this case 
of failure to elect a black, inhibitions on registration 
of black voters prior to 1950 resulting in a lower per­

centage rate of registered blacks than of whites, and 
racially polarized voting were proved and rejected in 

Mobile as insufficient to support a finding of intentional 
discrimination. Moreover, defendants uncontroverted facts 
demonstrated the presence of white crossover voting in 
elections with a black candidate, the significant re­
presentation of blacks on city boards and in municipal 
employment, the expenditure of substantial federal funds 
for services in predominately black neighborhoods, and the 
responsiveness of the elected incumbents to black voting 
power.

Plaintiffs' response to the motion for summary judg­
ment only served to further strengthen the basis for de­

fendants' motion. Consisting of little more than mere re­
petition of the allegations of the complaint, the response 
failed to identify any genuine issue of material fact that 
would prevent the grant of summary judgment. Given the 
uncontroverted facts in the record, disposition by summary 
judgment was proper. In light of the plaintiffs' response, 
it was apparent that a hearing on the motion would produce 
no more evidence and, thus, the grant of summary judgment



-33-

for defendants without a hearing was proper.

For the foregoing reasons, the District Court's 
grant of summary judgment for defendants should be 
affirmed.

Respectfully submitted,

dUJb, j Xit,, >
WiiriairTRussell Rice V v 

Rice & Rice
Third Floor, Fox Building 
203 East Main Street 
Jackson, Tennessee 38301 
(901)424-1181

Charles S. Rhyne 
Martha B. Pedrick 

Rhyne and Rhyne 
1000 Connecticut Avenue, N. W. 
Suite 800
Washington, D. C. 20036 
(202)466-5420

December 23, 1981