This declaratory judgment action, which we now hold is moot, was brought by the City of Dallas to determine the validity of a voting plan for city council elections. The action was brought in this court pursuant to the Voting Rights Act, 42 U.S.C. § 1973c, and we initially refused the motion of the City of Dallas for summary judgment in its favor.
Subsequently, the original plan, which is the subject of this declaratory judgment action, was withdrawn, by repealing a city ordinance, and a new plan was enacted. The new plan has received the Attorney General's approval.
Since the City of Dallas now has an approved plan for holding its councilmanic elections, scheduled for January 19, 1980, the City has moved for dismissal of the declaratory judgment action involving the first plan on the grounds that the adoption of the second plan makes the first case moot. The Attorney General has consented to the City's motion.
Objections are interposed, however by the intervenors representing black and Mexican-American voters. Intervenors contend that this Court should exercise its inherent equitable powers to evaluate the new plan on the theory that both the repealed plan and the new plan which has been approved by the Attorney General establish, as required by the city charter, three at large seats on the eleven seat council, i. e., eight councilmen elected from wards as apportioned. This common thread between the two plans, the intervenors argue, provides a basis for concluding that the pending action is not moot.
We disagree. The Voting Rights Act requires approval of changes in procedures relating to voting, including apportionment of districts, in State or political subdivision under its prohibitions. 42 U.S.C. §§ 1973a, b. The statute, however, provides two alternative procedures for obtaining the required approval. Either the determination of the Attorney General Or of a three judge court convened in this district, pursuant to the statute, provides the requisite approval.
The standards for evaluating mootness in a declaratory judgment action were articulated by the Supreme Court in Golden v. Zwickler, 394 U.S. 103, 108, 89 S. Ct. 956, 959-60, 22 L. Ed. 2d 113 (1968) where the Court stated that
The District Court erred in holding that Zwickler was entitled to declaratory relief if the elements essential to that relief existed "(w)hen this action was initiated." The proper inquiry was whether a "controversy" requisite to relief under the Declaratory Judgment Act existed at the time of the hearing on the remand. We now undertake that inquiry.
"(T)he federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, "concrete legal issues, presented in actual cases, not abstractions,' are requisite. This is as true of declaratory judgments as any other field." United Public Workers of America v. Mitchell, 330 U.S. 75, 89, 67 S. Ct. 556, 91 L. Ed. 754 (1947). "The difference between an abstract question and a "controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 85 L. Ed. 826 (1941). (footnote omitted)
Applying these standards we determine that the case is moot because as between the parties, the City of Dallas and the United States, there exists no dispute. The original plan has been repealed, the City of Dallas is not attempting to implement the repealed plan and thus, since the plan has been repealed the basis for the controversy that previously existed is now non-existent. The City of Dallas had invoked our jurisdiction to determine the legality of the first voting plan. Subsequently, during the pendency of that proceeding in this court, the City successfully obtained approval by the Attorney General of the new voting plan (see letter appended hereto). Such approval is one of the two methods provided by the Voting Rights Act for instituting new voting procedures in affected States or political subdivisions. Under the statute the Attorney General's approval is not reviewable in this court.
As a result of the repeal of the first plan there no longer exists any controversy Between the parties. This is buttressed by the Attorney General's acceptance of the new voting plan for councilmanic elections. The Attorney General and the City of Dallas have no controversy between them. There is thus no factual base for this court's jurisdiction.
The intervenors also argue that the two plans embody the "same election plan" and no "new plan" has been submitted. Such is not a correct description of the facts.
We accordingly grant the motion to dismiss the pending action on the grounds of mootness.
Counsel may submit motions and memoranda in support of their request ...