Case: 12-50131 Document: 00511787730 Page: 1 Date Filed: 03/14/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 14, 2012
No. 12-50131 Lyle W. Cayce
Clerk
LEAGUE OF UNITED LATIN AMERICAN CITIZENS, DISTRICT 19,
Plaintiff–Appellee
v.
CITY OF BOERNE; PATRICK R. HEATH, Mayor; R.L. BIEN, all in their
official capacities as members of the City Council for the City of Boerne,
Kendall County, Texas; DONALD L. GOURLEY, all in their official capacities
as members of the City Council for the City of Boerne, Kendall County, Texas;
ANN REISSIG, all in their official capacities as members of the City of
Boerne, Kendall County, Texas; BEN STAFFORD, all in their official
capacities as members of the City of Council for the City of Boerne, Kendall
County, Texas; RANDY BEDWELL, all in their official capacities as members
of the City Council for the City of Boerne, Kendall County, Texas,
Defendants–Appellees
v.
MICHAEL R. MORTON,
Intervenor–Appellant
Appeal from the United States District Court
for the Western District of Texas
Before KING, BENAVIDES, and DENNIS, Circuit Judges.
KING, Circuit Judge:
Case: 12-50131 Document: 00511787730 Page: 2 Date Filed: 03/14/2012
No. 12-50131
This appeal requires us to decide whether the district court properly
granted a joint motion by the City of Boerne, Texas, and the League of United
Latin American Citizens, District 19, to modify temporarily a consent decree.
Because we conclude that the district court erred in approving the temporary
modification without following the procedures mandated by an earlier panel, we
vacate the district court’s order and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1995, the City of Boerne, Texas, (the “City”) adopted a Home Rule
Charter (the “City Charter”), which provides, inter alia, for a City Council of five
members to be elected on an at-large, numbered-post basis. Under the City
Charter, elections are to be held once per year for two-year terms, with three
council members to be elected in one year and two council members plus the
mayor to be elected the next year. See City Charter §§ 3.02, 4.05(B).
Soon after the City Charter was adopted, the League of United Latin
American Citizens, District 19 (“LULAC”), filed suit against the City alleging
that the voting method adopted by the City Charter diluted minority voting
strength, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. The
City and LULAC settled in December 1996, and the district court entered a
consent decree in accordance with the parties’ settlement (the “Consent Decree”).
Among other things, the Consent Decree provided that City Council members
would be elected on an at-large basis using cumulative voting, instead of a
numbered-post system, and that the City would seek preclearance of that system
from the Department of Justice (“DOJ”) under Section 5 of the Voting Rights
Act, 42 U.S.C. § 1973c. Subsequently, preclearance was obtained. The City
Charter, however, was not amended, and therefore continued to provide for at-
large, numbered-post voting.
For several years, the City held elections in accordance with the Consent
Decree. One Hispanic member was elected to the City Council in 1997. She was
2
Case: 12-50131 Document: 00511787730 Page: 3 Date Filed: 03/14/2012
No. 12-50131
reelected unopposed in 1999 and 2001. In 2003, the Hispanic Council member
faced an opposing candidate for the first time and was defeated. No other
Hispanic candidate has run for City Council since that time.
On December 2, 2009, the City Council held a special meeting to discuss
moving from at-large elections to single-member district elections. Michael R.
Morton (“Morton”), Intervenor–Appellant, opposed the change. The City Council
voted to file a joint motion with LULAC, asking the district court to enter a
modified Consent Decree providing for single-member district voting. The
Council also passed an ordinance establishing five single-member districts and
delineating their boundaries. Because the issue was not submitted to the voters,
as is required to amend the City Charter, the City Charter continued to provide
for at-large, numbered-post voting.
LULAC and the City subsequently sought to modify the Consent Decree
to provide for single-member district voting, stating that the “cumulative voting
system has failed to produce the results desired by either LULAC or the City,”
and the modification was sought “in hopes of producing the desired remedy with
respect to minority candidate and voter participation and voting strength.” The
City and LULAC did not provide any supporting evidence. On December 11,
2009, the district court approved the agreement (the “Modified Consent Decree”).
The order entering the Modified Consent Decree did not provide reasons for the
decision or include findings of fact or conclusions of law. Instead, the court
directed LULAC and the City to present a joint motion to dismiss the suit when
implementation of the single-member district system was complete.
On January 6, 2010, Morton filed a motion to intervene in the lawsuit,
contending that the Modified Consent Decree deprived him of his right under the
City Charter to vote for all of the City Council members through an at-large
election. The district court denied the motion, concluding that Morton lacked
standing. On that same day, the City submitted its single-member district plan
3
Case: 12-50131 Document: 00511787730 Page: 4 Date Filed: 03/14/2012
No. 12-50131
to the DOJ for preclearance, which the DOJ subsequently granted. On the City
and LULAC’s joint motion, the district court dismissed the suit on April 19,
2010. Morton timely appealed the denial of his motion to intervene and the
dismissal of the suit. Meanwhile, the 2010 and 2011 City Council elections
proceeded under the single-member district plan established in the Modified
Consent Decree.
On appeal, a panel of this court reversed the district court’s denial of
Morton’s motion to intervene, vacated the court’s order approving the Modified
Consent Decree, and remanded for further proceedings. League of United Latin
Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 440 (5th Cir. 2011)
(“LULAC I”). The panel held that Morton had standing and the right to
intervene. Id. at 428-35.1 The panel also concluded that the district court had the
power to modify the Consent Decree, but it abused its discretion in doing so,
because the record “provided an insufficient basis for the district court to
determine that modification was warranted” pursuant to the two-factor test for
modification of consent decrees established in Rufo v. Inmates of Suffolk County
Jail, 502 U.S. 367 (1992). Id. at 437-38. Although the decision was rendered on
September 28, 2011, the mandate did not issue until December 29, 2011.
When the case returned to the district court in January 2012, the City and
LULAC filed a motion seeking modification of the Consent Decree to allow for
single-member district voting in the upcoming May 12, 2012 City Council
election. The City and LULAC sought only a temporary modification because
they concluded that it would not be possible to comply fully with the LULAC I
mandate before the election. On February 3, 2012, the court granted the motion
1
The panel recognized that Morton’s claim arose under state law. It stated, “Morton
does not claim to have suffered any violation of a voting right under the U.S. Constitution or
a federal statute such as the Voting Rights Act. Rather, his claim, which is sufficient to show
an injury in fact for Article III standing purposes, is that he has a voting right under the city
charter and this right has been abridged by the modified consent decree.” 659 F.3d at 428 n.4.
4
Case: 12-50131 Document: 00511787730 Page: 5 Date Filed: 03/14/2012
No. 12-50131
for temporary modification and ordered that single-member districts be used for
the May election (the “Order”). Arguing that the Order was contrary to LULAC
I, Morton first sought a writ of mandamus,2 and subsequently filed a notice of
appeal, along with an emergency motion to expedite the appeal and stay the
Order. We expedited the appeal, and now vacate the Order.
II. STANDARD OF REVIEW
Although we normally apply an abuse of discretion standard to a district
court’s modification of a consent decree, see Ruiz v. Lynaugh, 811 F.2d 856, 861
(5th Cir. 1987), “we review de novo whether the trial court faithfully and
accurately applied our instructions on remand.” Sobley v. S. Natural Gas Co.,
302 F.3d 325, 332 (5th Cir. 2002).
III. DISCUSSION
1. The District Court Failed to Comply with LULAC I
On appeal, Morton contends that the district court failed to comply with
the mandate of LULAC I, as the Order approves modification of the Consent
Decree without the required evidentiary showing. We agree.
The LULAC I panel discussed in detail the evidence and procedures
required before the district court could authorize modification of the Consent
Decree. While advocating a “flexible approach,” the panel relied upon the test for
modification of consent decrees developed by the Supreme Court in Rufo v.
Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992). The panel explained:
First, the party seeking modification must show that “a significant
change either in factual conditions or in law” that “make compliance
with the decree substantially more onerous [or] . . . unworkable
because of unforeseen obstacles[,] . . . or when enforcement of the
decree without modification would be detrimental to the public
interest.” Second, the court must then “consider whether the
2
Mandamus relief was denied by a panel of this court, which held that the temporary
modification was a type of temporary injunction, appealable pursuant to 28 U.S.C.
§ 1292(a)(1). LULAC v. City of Boerne, No. 12-50111, slip op. at 2-3.
5
Case: 12-50131 Document: 00511787730 Page: 6 Date Filed: 03/14/2012
No. 12-50131
proposed modification is suitably tailored to the changed
circumstance.”
LULAC I, 659 F.3d at 437 (quoting Rufo, 502 U.S. at 383-84).
The LULAC I panel concluded that the district court erred in granting the
modification request without first requiring the parties to satisfy the Rufo test.
Id. at 438-39. The panel explained that the “paucity of the record . . . provided
an insufficient basis for the district court to determine that modification was
warranted.” Id. at 438. Recognizing that the Consent Decree was intended to
alleviate vote dilution, the panel concluded that “LULAC and the city have not
shown that the original consent decree had failed to achieve its intended purpose
or that there has been any other significant change in circumstance.” Id. at 439.
The panel found that the evidence presented to the district court was insufficient
to demonstrate satisfaction of the first step of Rufo, because the parties failed to
“include additional facts in their joint motion to modify the consent decree, to file
a summary of facts relied upon in the motion, and to file supporting affidavits
and other pertinent documents.” Id.3 Furthermore, the district court could have
“request[ed] further submissions or . . . schedule[d] a conference or hearing on
the matters,” but it did not do so. Id. The panel therefore vacated the district
court’s order approving modification of the Consent Decree, and reversed its
dismissal of the action. The panel instructed that, on remand, “the district court
should permit supplemental filings and conduct proceedings, as necessary, to
develop a sufficient record in order to decide whether, consistent with this
opinion, modification of the consent decree is appropriate.” Id. at 439-40.
It is well established that “an inferior court has no power or authority to
deviate from the mandate issued by an appellate court.” Briggs v. Penn. R.R. Co.,
334 U.S. 304, 306 (1948). The mandate rule requires that a “district court follow
3
LULAC I did not reach the second step of the Rufo analysis. 659 F.3d at 439.
6
Case: 12-50131 Document: 00511787730 Page: 7 Date Filed: 03/14/2012
No. 12-50131
both the letter and spirit of the mandate by taking into account the appeals
court’s opinion and circumstances it embraces.” United States v. Carales-Villalta,
617 F.3d 342, 344 (5th Cir. 2010) (citation and internal quotation marks
omitted). The district court’s proceedings upon remand, however, bore little
resemblance to those mandated by LULAC I. The district court did not, for
example, permit the parties to conduct discovery, or hold an evidentiary hearing
to receive competing expert and lay testimony, or even offer Morton a
substantial opportunity to rebut the evidence that the City and LULAC
presented.4 The court determined instead that it could order a temporary
modification of the Consent Decree if the City and LULAC could demonstrate a
likelihood of success under the Rufo standard. Basing its decision primarily upon
a single affidavit and an otherwise underdeveloped record, the district court
found that the parties satisfied this standard. By approving a modification of the
Consent Decree without holding a hearing and demanding a more developed
factual record, the district court failed to follow the “letter and spirit” of the
LULAC I mandate. See Carales-Villalta, 617 F.3d at 344.
Nor did the district court have the authority to approve a temporary
modification of the Consent Decree notwithstanding LULAC I. The court
believed it could do so because of the impending May 2012 election. On appeal,
the City and LULAC contend that the district court merely exercised its
“well-recognized equitable power to grant interim relief in the context of Voting
Rights Act challenges to election changes.” Although it is true that district courts
generally have broad authority to order interim equitable relief in voting rights
4
Before the district court, the City and LULAC submitted one affidavit from the
Administrative Services Director and Deputy City Secretary Linda Zartler, who attested to
voter confusion in at-large elections. They also submitted election results from 1996 to 2011,
minutes from various City Council meetings in which the modification was discussed,
correspondence with the DOJ regarding preclearance of the single-member district system,
and various newspaper articles on the proposed modification. Morton submitted no evidence.
7
Case: 12-50131 Document: 00511787730 Page: 8 Date Filed: 03/14/2012
No. 12-50131
cases,5 this authority is constrained when acting pursuant to an appellate court’s
mandate. Indeed, the City and LULAC have not provided any authority that
would permit the district court to approve a temporary modification of the
Consent Decree while operating under the LULAC I mandate. Nor have we
found any such cases. Whatever authority the district court may have had to
order an interim or temporary modification of the Consent Decree prior to
LULAC I certainly disappeared after the mandate was issued. See, e.g., Gen.
Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th Cir. 2007) (“‘The
mandate rule requires a district court on remand to effect our mandate and to
do nothing else.’”) (citation omitted). The district court was therefore not free to
grant the City and LULAC’s temporary modification request.
Although the district court had limited time to conduct the proceedings
required by LULAC I before the May 2012 election,6 it was not free to depart
from that mandate. If the parties believed that there was insufficient time in
which to comply with LULAC I, they could have sought to modify the mandate.7
5
See Mahan v. Howell, 410 U.S. 315, 332 (1973) (“Application of interim remedial
techniques in voting rights cases has largely been left to the district courts.”); see also Branch
v. Smith, 538 U.S. 254, 265 (2003); Lopez v. Monterey Cnty., Cal., 519 U.S. 9, 18 (1996);
Reynolds v. Sims, 377 U.S. 533, 585 (1964); Campos v. City of Houston, 968 F.2d 446, 450 (5th
Cir. 1992) (holding that district court “had the power to grant some form of interim relief” for
the Houston City Council elections, pending an unresolved Section 2 Voting Rights Act case
and in the absence of a Section 5 precleared redistricting plan).
6
As noted above, the mandate was not issued until December 29, 2011, and the district
court states that it did not receive the mandate until January 9, 2012. The pre-election filing
deadline for City Council candidates was set for February 4, 2012.
7
Fifth Circuit Rule 41.2 provides that “[o]nce issued a mandate will not be recalled
except to prevent injustice.” In accordance with that rule, “[o]n a number of occasions, this
court has recalled and modified its mandates.” Hall v. White, Getgey, Meyer Co., LPA, 465 F.3d
587, 593 (5th Cir. 2006) (footnote omitted). This court “has the innate power to recall and then
relax its mandate on a proper showing. The more orderly way is . . . for the party affected to
formally petition this Court to relax or modify its mandate to permit the trial court to take the
requested action.” Dickerson v. Cont’l Oil Co., 476 F.2d 635, 636 (5th Cir. 1973) (citation
omitted); see also Hall, 465 F.3d at 593 n.21 (citing Dickerson). A panel may recall and amend
a mandate if “the circumstances warrant deviation from the rehearing procedure and the
8
Case: 12-50131 Document: 00511787730 Page: 9 Date Filed: 03/14/2012
No. 12-50131
They failed to do so, and therefore had no alternative but to abide by the
mandate’s instructions.
Because the district court did not comply with the mandate of LULAC I
and was without authority to order a temporary modification of the Consent
Decree, we conclude that the Order was erroneous. We therefore vacate the
Order and remand this case to the district court. On remand, we direct the
district court to fully comply with the LULAC I mandate, and issue a final
decision on the requested permanent modification of the Consent Decree no later
than May 31, 2012. It goes without saying that sooner would be better. Any
subsequent appeal or interim motions will be heard by this panel.
2. Election Schedule
Texas law provides that general elections may be held on either the second
Saturday in May or the first Tuesday after the first Monday in November. TEX.
ELEC. CODE § 41.001(a). Although City Council elections are presently set for
May 12, 2012, it will not be possible for the district court to comply with the
LULAC I mandate and our mandate before that date. Therefore, at the
suggestion of the City and LULAC, we order that the election for City Council
be held on November 6, 2012, as provided by Section 41.001(a)(3) of the Texas
Election Code. On remand, the district court should consult with City election
officials to determine any changes to pre-election deadlines that may be
necessary in advance of the November 6, 2012 election.8 Upon motion by the City
equities of the case require recall and reformation of a mandate.” In re Incident Aboard the
D.B. Ocean King on Aug. 30, 1980, 877 F.2d 322, 327 (5th Cir. 1989) (footnote and internal
quotation marks omitted); id. (recognizing an appellate court’s power to “recall and amend a
mandate to prevent injustice”).
8
The parties have identified the following pre-election dates that will require alteration
for the November 6 election: (1) deadline for candidate filing, (2) date upon which candidates
draw for ballot position, (3) deadline for candidate withdrawal from the ballot, (4) deadline for
mailing of ballots to military and overseas voters, (5) date for public logic and accuracy testing
for early voting, (6) deadline for voters to apply for a ballot to vote by mail, and (7) date for
9
Case: 12-50131 Document: 00511787730 Page: 10 Date Filed: 03/14/2012
No. 12-50131
and after any hearing that is advisable, the district court should exercise its
authority to order any necessary changes to those deadlines.
3. Other Relief
Morton seeks attorneys’ fees as a sanction for the City and LULAC’s
actions in this case, pursuant to our inherent authority or under 28 U.S.C.
§ 1927. Morton also requests that we reassign this case to a different district
judge in the Western District of Texas upon remand.
We deny Morton’s request for attorneys’ fees. Such fees may be warranted
where we find conduct to be in bad faith, fraudulent, unreasonable, or otherwise
deserving of sanction. See Boland Marine & Mfg. Co. v. Rihner, 41 F.3d 997,
1005 (5th Cir. 1995) (“A court should invoke its inherent power to award
attorney’s fees only when it finds that ‘fraud has been practiced upon it, or that
the very temple of justice has been defiled.’”) (quoting Chambers v. NASCO, Inc.,
501 U.S. 32, 46 (1991)); Elliott v. Tilton, 64 F.3d 213, 217 (5th Cir. 1995); see also
28 U.S.C. § 1927 (stating that attorney’s fees are warranted where “[a]ny
attorney . . . so multiplies the proceedings in any case unreasonably and
vexatiously”). While we disagree with their legal arguments, we have no reason
to conclude that the City and LULAC have not litigated this matter in good
faith. Attorneys’ fees are therefore unwarranted.
We also deny Morton’s request for reassignment. Although we have the
authority to order reassignment, see Johnson v. Sawyer, 120 F.3d 1307, 1333
(5th Cir. 1997), we have emphasized that it is an “extraordinary power that is
rarely invoked.” In re DaimlerChrysler Corp., 294 F.3d 697, 701 (5th Cir. 2002)
(citation and internal quotation marks omitted). We have explained that
reassignment may be authorized where “the original judge would reasonably be
expected upon remand to have substantial difficulty in putting out of his or her
public logic and accuracy testing for election day voting.
10
Case: 12-50131 Document: 00511787730 Page: 11 Date Filed: 03/14/2012
No. 12-50131
mind previously-expressed views or findings determined to be erroneous or
based on evidence that must be rejected,” or where “reassignment is advisable
to preserve the appearance of justice.” Id. at 700-01 (citation omitted). We have
also ordered reassignment where “the facts might reasonably cause an objective
observer to question [the judge’s] impartiality.” Id. at 701 (alteration in original)
(citation and internal quotation marks omitted). Neither standard is satisfied
here. Morton has not provided any evidence that might lead us to question the
district court’s impartiality; he points only to erroneous legal decisions. Morton
also contends that the district court has “at times expressed hostility” towards
him, but we find no evidence of such hostility.
IV. CONCLUSION
For the foregoing reasons, we VACATE the Order of the district court
entered February 3, 2012 and REMAND this case to the district court for further
proceedings consistent with LULAC I and with this opinion. We direct the
district court to issue a final decision on the requested permanent modification
of the Consent Decree no later than May 31, 2012. We also DENY Morton’s
request for attorneys’ fees, and DENY Morton’s request to reassign this case
upon remand.
We order that the City Council election shall be held on November 6, 2012,
pursuant to Section 41.001(a)(3) of the Texas Election Code, and direct the
district court to order any necessary modifications to pre-election deadlines.
Any subsequent appeal or interim motions will be heard by this panel.
Morton’s Motion for Stay is DENIED AS MOOT.
The mandate shall issue forthwith.
11