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CITY OF PLEASANT GROVE v. UNITED STATES

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


August 3, 1983

CITY OF PLEASANT GROVE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant

The opinion of the court was delivered by: GREENE

MEMORANDUM ORDER

H. GREENE, District Judge:

 The City of Pleasant Grove, a residential community in Jefferson County, Alabama, brought this action under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, seeking a declaratory judgment that the annexation by the city of certain land *fn1" did not have "the purpose or effect of denying or abridging the right to vote on account of race or color." The Attorney General denied preclearance for the annexations because contiguous areas inhabited by blacks which had petitioned for annexation were not annexed by Pleasant Grove.

 Presently before the Court is plaintiff's motion for summary judgment. *fn2" Plaintiff argues (1) that there is no evidence that the annexations were the product of a purpose to abridge the right of blacks to vote or had such an effect, and (2) that even if a purpose to discriminate could be established, it alone would not sustain the refusal of the Attorney General to clear the annexations.

 I

 Pleasant Grove has a population of 7,086 people, all of them white. *fn3" Jefferson County as a whole has 671,197 residents, one-third of them black. Other municipalities in west central Jefferson County have substantial black populations, *fn4" and there are several unincorporated black communities directly to the south and southeast of Pleasant Grove. Pleasant Grove may thus accurately be described as an all-white enclave in an otherwise racially mixed area of Alabama.

 The basic issue here is whether the Voting Rights Act forbids the annexation by Pleasant Grove of areas inhabited or likely to be hereafter inhabited by whites at a time when Pleasant Grove is refusing to annex contiguous areas which are inhabited by blacks. Resolution of this issue demands examination of two subsidiary questions -- first, can an intent to discriminate be attributed to Pleasant Grove on the present record, and second, assuming that such an intent exists, is Pleasant Grove prohibited from proceeding with its annexations in the absence of any allegation by the govenment that the voting power of blacks will be impaired or diluted?

 II

 The government's evidence, which, for purposes of the motions must be regarded as true, *fn5" shows an astounding pattern of racial exclusion and discrimination in all phases of Pleasant Grove life.

 As early as in the 1940s, the Pleasant Grove city council acted to prevent the construction of a "colored housing project" within the city and directed the city attorney to draft a zoning ordinance designed to "restrict colored property." The city has thereafter consistently maintained a dual housing market through advertising and marketing directed exclusively to white buyers. In 1978, the city council adopted an exclusionary zoning ordinance which was found by a federal court to have a racially restrictive effect. *fn6"

 Pleasant Grove's annexation policy followed a similar pattern. For example, the city refused to annex the site on which the "black" Woodard School was located in an attempt to avoid school desegregation orders issued by a federal court. See p. 5 infra. However, shortly after that refusal, the city annexed the Glasgow Addition which is located several miles outside the city limits past a black neighborhood which was not annexed. The city also declined at various times to annex two parcels of land *fn7" because of their location adjacent to black areas and the possibility that these areas might, in turn, press for annexation. In 1979, Pleasant Grove began its effort to annex the Western Addition which, together with the Glasgow Addition, is now directly before the Court in this action. *fn8" While the Western Addition annexation was taking its course, two black areas (Pleasant Grove Highlands and the Dolomite area) petitioned for annexation. Both were rejected. *fn9"

 Pleasant Grove's discriminatory policies have not been confined to housing, annexations, and zoning. *fn10"

 Prior to 1969, Pleasant Grove maintained a rigidly segregated school system: black children living in close proximity to Pleasant Grove were bused elsewhere. When a federal court mandated an end to this system on August 4, 1969, *fn11" the city council voted to secede from the county school system on the very evening of the day the court order was issued. *fn12" Moreover, although the County is one-third black, Pleasant Grove itself has never had a black employee. *fn13"

 From all of these facts, a court could appropriately draw the inference that the City of Pleasant Grove had and has the purpose to discriminate against blacks with respect to voting as with respect to other subjects. To be sure, the incidents of discrimination do not directly involve voting, nor could they, since there were and are no blacks eligible to vote in Pleasant Grove: all blacks have simply been kept out. Nevertheless, as the Supreme Court has said, the "historical background of (a) decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes." Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977). For that reason, proof of discrimination in a variety of fields may be used as proof in an action charging discrimination in voting. See note 10 supra.

 The present record, if unrebutted, would warrant a finding that the City of Pleasant Grove had the purpose, in its annexation decisions, of "denying or abridging the right to vote on account of race . . . ." 42 U.S.C. § 1973c. The next question to be determined is whether such a finding would entitle the United States to judgment in its favor after a trial and, thus, would defeat plaintiff's motions for summary judgment.

 III

 Pleasant Grove contends most vigorously that, especially in an annexation case, proof of a discriminatory purpose is insufficient; that there must be proof of a discriminatory effect. It further reasons that, since there are no black voters (or persons even arguably eligible to vote) in the city, there could be no proof of a discriminatory effect, and the government's claims must therefore be rejected.

 The basis for these arguments is as follows. While according to City of Richmond v. United States, 422 U.S. 358, 45 L. Ed. 2d 245, 95 S. Ct. 2296 (1975), annexation constitutes a change n a voting practice or procedure, under that decision an annexation violates the Voting Rights Act if it reduces the proportion of voters of a particular race in the affected locality (or if the minority race has been denied the opportunity to obtain representation reasonably equivalent to its political strength in the enlarged community). It follows, according to plaintiff, that since there are no blacks eligible to vote in Pleasant Grove, the government cannot meet the City of Richmond standard. This conclusion is said to be buttressed by Beer v. United States, 425 U.S. 130, 47 L. Ed. 2d 629, 96 S. Ct. 1357 (1976) which held that the Voting Rights Act does not require preclearance for a failure to change a voting practice or procedure (as distinguished from an active alteration of such a practice or procedure). Again, since, with regard to the black areas at issue here, Pleasant Grove has simply failed to annex them, the Beer decision, so the reasoning goes, constitutes a complete defense.

 This argument is not persuasive. The City of Richmond case and other, similar annexation decisions discuss the applicable standard in terms of the effect of the annexation on black voters in the annexing community because in those cases there happened to be black voters in that community and hence the annexations did have the effect of reducing their voting power. These cases do not discuss, and hence they do not reject, the application of a purpose test, particulary not in the context of an annexation where, as here, there are no black voters in the annexing municipality.

 However, a number of recent decisions make it clear that a discriminatory effect (on blacks already living in a community) is not the only yardstick by which discrimination in violation of the Voting Rights Act may be measured, and that annexation decisions made with a discriminatory purpose -- regardless of effect -- also constitute violations of the Fifteenth Amendment and the Voting Rights Act.

 In City of Port Arthur, Texas v. United States, 459 U.S. 159, 103 S. Ct. 530, 535, 74 L. Ed. 2d 334 (Dec. 13, 1982), the Court held that

 

. . . even if [a particular] electoral scheme might otherwise be said to reflect the political strength of the minority community, the plan would nevertheless be invalid if adopted for racially-discriminatory purposes. . . (emphasis added). *fn14"

 The recent case of Lockhart v. United States, 460 U.S. 125, 103 S. Ct. 998, 74 L. Ed. 2d 863, decided February 23, 1983, further supports this conclusion. The Court there referred with approval to the district court's recognition "that the City must prove both the absence of discriminatory effect and discriminatory purpose . . .," id. at 1001, and that "in view of its decision on discriminatory effect, it was unnecessary for the District Court to reach the issue of discriminatory purpose." *fn15" Id. at n.4.

 Indeed, the Spreme Court has described as discriminatory the very fact situation presented by this case. In Perkins, v. Matthews, 400 U.S. 379, 388, 27 L. Ed. 2d 476, 91 S. Ct. 431 (1971), the Court said,

 

Clearly, revision of boundary lines has an effect on voting in two ways: (1) by including certain voters within the city and leaving others outside, it determines who may vote in the municipal election and who may not ; (2) it dilutes the weight of the votes of the voters to whom the franchise was limited before the annexation . . . (emphasis added).

 The second category mentioned by the Perkins court is that involved in City of Richmond, supra, and similar cases; the first category is that presented by this case. See also, Busbee v. Smith, supra, 549 F. Supp. at 515-16; and Allen v. State Board of Elections, 393 U.S. 544, 567-68, 22 L. Ed. 2d 1, 89 S. Ct. 817 (1969).

 The remark of the Fifth Circuit in United States v. Hinds County School Board, 417 F.2d 852, 858 (5th Cir. 1969) that "nothing is as emphatic as zero" is particularly apt here. It would be incongruous if the City of Pleasant Grove, having succeeded in keeping all blacks out, could now successfully defend on the ground that there are no blacks in the city whose right to vote would be diluted by the annexation of white, but not black, subdivisions. This Court is not prepared to endorse such an anomalous result. *fn16"

  It is also noteworthy that the Attorney General, who administers the Voting Rights Act in the first instance, has consistently objected to annexations which were the product of racially selective policies. See Supplemental Memorandum of the United States, pp. 2-4 and attachments. The Attorney General's interpretation of the requirements of the Voting Rights Act is, of course, entitled to considerable deference. See Perkins v. Matthews, supra, 400 U.S. at 390-94; United States v. Sheffield Board of Commissioners, 435 U.S. 110, 134, 98 S.ct. 965, 55 L. Ed. 2d 148 (1978). The Attorney General's objection letters were submitted to and made a part of the record of the Congress *fn17" at various times, including at the time when Congress recently considered the extension of the Voting Rights Act. See H.R. Rep. No. 97-227, 97th Cong. 2d Sess., p. 13 (1982). *fn18"

 It is thus clear from the precedents (1) that in the context of annexations, the Voting Rights Act applies if there is a discriminatory purpose irrespective of whether or not there is also a discriminatory effect and (2) that the failure to annex is a violation of the Act provided discriminatory purpose is shown.

 This does not mean, of course, that Pleasant Grove or any other community would be required to annex contiguous areas merely because such areas may be inhabited by blacks. But it does mean that a community may not annex adjacent white areas while applying a wholly different standard to black areas and failing to annex them based on that discriminatory standard. See Gomillion v. Lightfoot, 364 U.S. 339, 5 L. Ed. 2d 110, 81 S. Ct. 125 (1960). If a community subject to the Voting Rights Act cannot demonstrate that it is not engaged in such discrimination, the Attorney General and the Court will not grant clearance for the annexation of the white areas.

 For the reasons stated, it is this 3rd of August, 1983,

 ORDERED That plaintiff's motion for summary judgment and its motion for partial summary judgment be and they are hereby denied.


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