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CITY OF PLEASANT GROVE v. UNITED STATES

October 25, 1985

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



The opinion of the court was delivered by: GREENE

On October 9, 1980, the City of Pleasant Grove, a community in Jefferson County, Alabama, brought this action under section 5 of the Voting Rights Act of 1965, 42 U.S.C. ยง 1973c, seeking a declaration that the annexation by the city of the so-called "Western Addition" did not have the purpose or effect of denying or abridging the right to vote on account of race or color. In March 1982, plaintiff moved for summary judgment, *fn1" and on August 3, 1983, after a hearing, the Court denied plaintiff's motion. City of Pleasant Grove v. United States, 568 F. Supp. 1455 (D.D.C. 1983).

 The Court's opinion on the motion and Judge MacKinnon's dissent focused on the question whether a community without black voters would be in violation of the Act by annexing areas inhabited by whites while refusing to annex similarly situated, contiguous areas inhabited by blacks. On that issue, the Court held that, in the context of annexation, a violation occurs upon a showing of discriminatory purpose alone, and that it was not significant in terms of the Voting Rights Act that, since there were no black voters in the City of Pleasant Grove, there could be no dilution of the voting rights of blacks and hence no discriminatory effect. The Court further decided that a political entity may not annex adjacent white areas while applying a wholly different standard to adjacent black areas and failing to annex them based upon that discriminatory standard. 568 F. Supp. at 1460.

 That decision is, of course, the law of the case. Fogel v. Chestnutt, 668 F.2d 100, 108-09 (2d Cir. 1981); Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir. 1981); Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); United States v. Fernandez, 506 F.2d 1200, 1204 (2d Cir. 1974); White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967); Schupak v. Califano, 454 F. Supp. 105, 114 (E.D.N.Y. 1978). See generally 1B Moore's Federal Practice paragraphs 0.404[1], 0.404[4.-1].

 The action is now before the Court on the merits and, as the plaintiff, the City of Pleasant Grove has the burden of proof. City of Rome v. United States, 446 U.S. 156, 162, 183-87, 64 L. Ed. 2d 119, 100 S. Ct. 1548 (1980); City of Richmond v. United States, 422 U.S. 358, 362, 45 L. Ed. 2d 245, 95 S. Ct. 2296 (1975); Georgia v. United States, 411 U.S. 526, 538, 36 L. Ed. 2d 472, 93 S. Ct. 1702 (1973); City of Port Arthur v. United States, 517 F. Supp. 987, 1010-11 (D.D.C. 1981), aff'd, 459 U.S. 159, 74 L. Ed. 2d 334, 103 S. Ct. 530 (1982); Mississippi v. United States, 490 F. Supp. 569, 581 (D.D.C. 1979), aff'd, 444 U.S. 1050, 100 S. Ct. 994, 62 L. Ed. 2d 739 (1980); City of Petersburg v. United States, 354 F. Supp. 1021, 1027 (D.D.C. 1972), aff'd, 410 U.S. 962, 35 L. Ed. 2d 698, 93 S. Ct. 1441 (1973).

 It is in this procedural framework that the Court now considers the factual issues.

 I

 During its history, Pleasant Grove approved the following four annexation requests: a parcel of land to the southeast of the city (1945); land in the northern, southern, and western areas (1967); the Glasgow Addition (1971); and the Western Addition (1979). *fn2" None of these areas had any black residents. During the same period, the city rejected annexation petitions from the Woodward School (August, 1971), *fn3" the Pleasant Grove Highlands (April 18, 1979); and the Dolomite area (October, 1979). Each of these areas has been identified as a "black" area. *fn4"

 The annexations directly at issue in this proceeding are those of the Western Addition (Western), the Glasgow Addition (Glasgow), and the Pleasant Grove Highlands (Highlands). The basic rationale offered by Pleasant Grove in discharge of its burden of proof is that its decisions to annex the "white" Western *fn5" and Glasgow areas, but not the "black" Highlands, were based not on race but on the city's economic self-interest.

 In support of that rationale, Pleasant Grove adduced evidence *fn6" tending to show that, when the residents of the Highlands requested annexation (some two months after the annexation of Western), the mayor of Pleasant Grove appointed a committee to investigate. That committee, it is said, reported to the City Council that annexation would not be financially advantageous, and a second committee later likewise concluded that annexation would be economically costly to the city. *fn7" The principal substantive contentions Pleasant Grove is making in support of these conclusions are (1) that by annexing the Highlands, it would give up approximately $59,000 in development fees, *fn8" and (2) that the Highlands, unlike the "white" areas which had recently been annexed, requires more than its per capita share of City revenues, particularly in the form of police, fire, and sanitation services. We find, based on the evidence, that these contentions are without merit, and that they are a mere pretext for race-biased annexation decisions.

 II

 First. Neither in connection with the Highlands' petition nor at any other time did Pleasant Grove conduct an economic study to determine the advantages and disadvantages of a particular annexation; all the economic conclusions reached in this regard were developed after the fact. The evidence clearly shows that the City did not assess the economic or other impacts of annexation prior to its decision not to annex the Highlands, *fn9" and that it likewise performed no such studies in connection with its decisions to annex the Western and the Glasgow areas.

 Second. Pleasant Grove's reliance upon the determination of its so-called "Annexation Committee" -- that annexation of the Highlands would be too costly -- is unpersuasive for other reasons as well. Although the City asserts that the committee was established in March, 1981 to consider economic impacts, committee members have testified that they were not notified of their appointments until one year later. *fn10" It is likewise established that, if the committee met at all, it did so only once and then only on an informal basis, and that it never gathered its own information, but what data it had were provided to it by the Mayor from various city department heads who had already prejudged the issue. *fn11" The committee never questioned these individuals regarding economic issues; it generated no documents; and it made no official report to the City Council. Based on these uncontroverted facts, it is difficult to escape the conclusion that reliance by the City on the committee's recommendation for its decision not to annex Pleasant Grove Highlands is a sham. *fn12"

 Third. Substantively, the economic justification presented to the Court for the City's failure to annex the Highlands is no more persuasive. *fn13" The factors that have been cited in that regard are fire protection, streets ...


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