Brooks v. Georgia State Board of Elections

United States Court of Appeals,

Eleventh Circuit.

No. 94-8398.

Tyrone BROOKS, Lanette Stanley, Billy McKinney, Joe Beasley,
Venus E. Holmes, Michael Robinson, Edward Brown, John White, Mary
Young-Cummings, Mary Black, Willie Mays, William Young, Deanie
Frazier, G.L. Avery, Rev., Rev. Dr. William Howell, Plaintiffs-
Counter-Defendants-Appellants,

Donale E. Cheeks, Emil Klingenfus, Inez Wylds, Richard Dyson,
Vince Robertson, Intervenors-Plaintiffs, Cross-Claimants,

v.

GEORGIA STATE BOARD OF ELECTIONS, Max Cleland, Secretary of State
and Chairman of the Georgia State Board of Elections, Defendants-
Cross-Defendants, Appellees.

July 17, 1995.

Appeal from the United States District Court for the Southern
District of Georgia. (No. CV288-146), B. Avant Edenfield, Chief
Judge.

Before DUBINA, Circuit Judge, RONEY and ESCHBACH,* Senior Circuit
Judges.

DUBINA, Circuit Judge:

Plaintiffs/Appellants, a group of black registered voters in

the State of Georgia ("Plaintiffs"), appeal the district court's

order denying their motion for approval of a proposed settlement

agreement with Defendants/Appellees, the Georgia State Board of

Elections et al. ("Defendants" or "the state"), in this action

under Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c

(1988). The settlement agreement is opposed by certain intervenors

who argue that the terms of the agreement violate their state and

federal constitutional rights. Because we conclude that we cannot

*
Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for
the Seventh Circuit, sitting by designation.
give any meaningful relief in this case, we dismiss this appeal as

moot and remand the case to the district court for further

proceedings.

I.

Plaintiffs brought this action against the Defendant state

agencies and officers in 1988, alleging that the method of electing

judges of the state court, superior court, and court of appeals and

justices of the supreme court in Georgia1 violates Section 2 of the
Voting Rights Act ("VRA") and the United States Constitution.

Plaintiffs also claimed that superior court judgeships and circuit

configurations that had been enacted by the Georgia legislature

prior to November 1, 1964, required federal approval pursuant to

1
The Constitution of the State of Georgia and various
statutes promulgated thereunder provide for a system whereby
judges of the state court, superior court, and court of appeals
and justices of the supreme court are elected in nonpartisan
judicial elections. Ga. Const. art. 6, § 7, ¶ 1 (1983);
O.C.G.A. § 15-7-23 (1990). Georgia law, however, also empowers
the Governor with the authority to appoint individuals to fill
vacancies in the judiciary. Ga. Const. art. 6, § 7, ¶ 3 (1983);
O.C.G.A. § 15-7-23 (1990). Thus, as the district court
explained:

The Georgia judicial electoral system involves aspects
of both election and appointment. The vast majority of
judges in this state have reached the bench via
appointment. All judges and justices are subject to
challenge in open elections at the expiration of their
term of office. In reality, however, few incumbents
are actually challenged in contested elections, and, of
the few incumbents who are challenged, even fewer are
defeated at the polls. Nevertheless, under the current
system, qualified individuals can run against incumbent
judges or justices in open elections and when that
occurs, the voters choose who will serve them directly;
the candidate having a majority of the votes in the
election or the highest number of votes in a run-off
wins.

Brooks v. State Bd. of Elections, 848 F.Supp. 1548, 1557
(S.D.Ga.1994) (citation omitted).
Section 5 of the VRA.

Pursuant to Section 5, a three-judge panel ("the Panel") was

convened. In December 1989, the Panel held that Section 5 applied

to judicial elections, that the Georgia electoral scheme has the

potential for discriminating against minority voters, and that the

State of Georgia failed to obtain the required preclearance for

numerous changes to their electoral system. Brooks v. State Bd. of

Elections, 775 F.Supp. 1470, 1484 (S.D.Ga.1989), aff'd, 498 U.S.

916, 111 S.Ct. 288, 112 L.Ed.2d 243 (1990). Consequently, the

Panel enjoined further elections or appointments to judicial

positions that had not been precleared, but allowed incumbents to

serve out their terms. Id. at 1484.2

On June 17, 1992, Plaintiffs and Defendants reached a proposed

settlement agreement. The agreement, presented to the district

court in the form of a consent decree, provided, inter alia, that:

(1) the Governor will hereafter appoint all judges in Georgia;
(2) appointed judges will thereafter be subject only to
retention elections; (3) by the end of 1994 there will be at
least twenty-five black superior court judges and five
additional blacks will be appointed to either the state court
or the superior court; (4) in order to realize these
numerical requirements, a new category of judgeships, "State
Assignment Superior Court Judgeships" may be created and
filled by black candidates to serve by assignment in any of
the state's judicial circuits; and (5) any disputes that
arise under this system in the future will be overseen by
Senior District Judge Anthony A. Alaimo.

Brooks v. State Bd. of Elections, 848 F.Supp. 1548, 1551

(S.D.Ga.1994) (citing Consent Decree at 10-14).3

2
By order dated February 28, 1994, this injunction was
extended until March 1, 1995.
3
We attach hereto as Exhibit A the proposed Consent Decree
in its entirety.
 On August 30, 1993, the Attorney General of the United States

("Attorney General") approved the proposed settlement, preclearing

the changes to the Georgia system of judicial elections provided

for in the settlement agreement. The Attorney General's approval

was conditioned upon approval of the agreement by the district

court and based on assurances by the Georgia Attorney General that

the terms of the plan do not violate the Georgia Constitution. The

Attorney General expressed concern, however, that certain

provisions of the plan may be contrary to the United States Supreme

Court's decision in City of Richmond v. J.A. Croson Co., 488 U.S.

469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989).

In November of 1993, the Panel denied a motion to allow

interim gubernatorial appointments to certain judicial posts

pending a final decision by the district court on the proposed

settlement agreement. Importantly, the Panel also severed the

Section 5 and Section 2 portions of the case, retaining control

over the Section 5 claims and directing that the Section 2 claims

be addressed by the district court.4

On November 22, 1993, the district court certified a Plaintiff

class consisting of all present and future black registered voters

in Georgia, ordering that notice be given to absent class members

4
The State of Georgia subsequently brought a declaratory
judgment action under Section 5 of the VRA in the District Court
for the District of Columbia. On February 3, 1995, that court
entered judgment in favor of the state and declared that the
statutes creating superior court judgeships after November 1,
1964, " "do[ ] not have the purpose and will not have the effect
of denying or abridging the right to vote on account of race or
color' " under section 5 of the Voting Rights Act of 1965.
Georgia v. Reno, 881 F.Supp. 7, 14 (D.D.C.1995) (quoting 42
U.S.C. § 1973c).
pursuant to Fed.R.Civ.P. 23(e). On January 12, 1994, the court

held a fairness hearing, at which the court heard evidence and

argument from the Plaintiff class representatives, the Defendants,

the intervenors, and several objectors.

Finally, on March 7, 1994, the district court entered an order

denying the joint motion of Plaintiffs and Defendants seeking

approval of the settlement agreement. The court first noted that

there had been no determination to date, and no admission by

Defendants, that the current Georgia judicial election system

violates Section 2 or the federal Constitution. The court reasoned

that absent such a finding, it would be inappropriate to force a

change upon Georgia's citizens that would reduce their rights to

elect public officials of their choice. Brooks, 848 F.Supp. at

1577. Furthermore, the court determined that certain provisions of

the settlement would violate Georgia law. Most notably, the court

found that a retention election system would not satisfy the

Georgia constitutional requirement that judges be elected. Id.

Moreover, the court held that some provisions of the settlement

would violate the Equal Protection Clause of the Fourteenth

Amendment, finding that the provisions requiring the appointment of

thirty black judges by December 31, 1994, and establishing state

assignment superior court judgeships were race-conscious measures

that were not narrowly tailored to achieve a compelling state

interest. Id. In sum, the court concluded that the settlement

agreement was not "fair, adequate, reasonable and legal" under the

"totality of [the] circumstances." Id. at 1578. Plaintiffs then
perfected this appeal pursuant to 28 U.S.C. § 1292(a)(1).5

II.

We first must address the threshold jurisdictional question

of whether this appeal is moot. Defendants suggest in their brief

that the issues raised by Plaintiffs "may be moot." Appellee's

Brief at 21. In response, Plaintiffs emphasize that "[t]he state

has not argued that the case is in fact moot." Appellants' Reply

Brief at 2. Regardless of whether the state has argued mootness,

however, "[i]t is incumbent upon this court to consider issues of

mootness sua sponte and, absent an applicable exception to the

mootness doctrine, to dismiss any appeal that no longer presents a

viable case or controversy." Pacific Ins. Co. v. General

Development Corp., 28 F.3d 1093, 1096 (11th Cir.1994).

Defendants point out that the proposed settlement agreement

requires the state to add approximately twenty black superior court

and/or state court judges to the bench by December 31, 1994,

bringing the total number of black trial judges to thirty.

Subsequent to January 1, 1995, the Governor of the State of Georgia

is to make judicial appointments without regard to race, color, or

ethnic origin. Obviously, because the deadline for the appointment

of these black judges has passed, it is impossible for the state to

comply with the "thirty-black-judge-minimum" requirement.

5
Although Plaintiffs and Defendants made a joint motion to
the district court for approval of the settlement, Defendants do
not contest the district court's rejection of the settlement in
this appeal. Instead, Defendants concede in their brief that
they "were well aware that the proposed court order stretched to
the limit the authority of both the state officials involved and
of the district court...." Appellee's Brief at 20. Accordingly,
Defendants assert that the district court did not abuse its
discretion in rejecting the proposed settlement.
Moreover, any race-conscious appointments made at this late date

would directly contravene the provision in the agreement requiring

that appointments made subsequent to January 1, 1995, be

"colorblind." Thus, even if we were to reverse the district

court's order rejecting the settlement agreement, the agreement

could not be implemented under its present terms.

Under Article III of the United States Constitution, federal

courts may adjudicate only actual, ongoing cases or controversies.

U.S. Const. art. III; Lewis v. Continental Bank Corp., 494 U.S.

472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). "It has

long been settled that a federal court has no authority "to give

opinions upon moot questions or abstract propositions, or to

declare principles or rules of law which cannot affect the matter

in issue in the case before it.' " Church of Scientology of

California v. United States, --- U.S. ----, ----, 113 S.Ct. 447,

449, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651,

653, 16 S.Ct. 132, 133, 40 L.Ed. 293 (1895)). "For that reason, if

an event occurs while a case is pending on appeal that makes it

impossible for the court to grant "any effectual relief whatever'

to a prevailing party, the appeal must be dismissed." Id.; see

also Ethredge v. Hail, 996 F.2d 1173, 1175 (11th Cir.1993). An

appellate court simply does not have jurisdiction under Article III

"to decide questions which have become moot by reason of

intervening events." C & C Products, Inc. v. Messick, 700 F.2d

635, 636 (11th Cir.1983); United States v. Florida Azalea

Specialists, 19 F.3d 620, 622 (11th Cir.1994).

Research reveals no case law on mootness presenting the exact
situation in the present appeal; that is, an appeal from a

district court's rejection of a settlement agreement with specific

deadlines that have expired. In an analogous situation, however,

this court has consistently held that the appeal of a preliminary

injunction is moot where the effective time period of the

injunction has passed. For example, in Tropicana Products Sales,

Inc. v. Phillips Brokerage Co., 874 F.2d 1581 (11th Cir.1989), the

plaintiff appealed from the district court's denial of a motion for

a preliminary injunction that was to expire on February 13, 1989.

The appeal was argued on March 21, 1989, several weeks after the

end-date of the requested injunction. Id. at 1582. Because the

effective dates of the preliminary injunction had expired, the

court concluded that it could not grant effective relief and

dismissed the appeal as moot. Id. at 1583. The court reasoned

that "[t]he express limitation Tropicana's motion set for itself

has divested this Court of jurisdiction over the appeal." Id. See

also Pacific Ins. Co., 28 F.3d at 1096 (holding that "no meaningful

relief remains for us to provide" because "the injunction we are

asked to review has expired by its own terms").

Similarly, because of intervening events, we could not grant

effective or meaningful relief in the present case. The only issue

before us on this appeal is the propriety of the district court's

rejection of the proposed settlement agreement. As noted above,

some of the deadlines in the agreement have already passed, making

the settlement impossible to implement under its present terms.

Consequently, it appears that a decision by this court reversing

the district court's determination and ordering implementation of
the settlement agreement would not provide meaningful relief, since

the state could not possibly comply with the key requirements of

the settlement. Thus, any opinion we would render on the merits

would be purely advisory.

At oral argument, Plaintiffs' counsel suggested that we could

save this appeal from mootness by approving the settlement

agreement "now for then," with either this court or the district

court on remand modifying the dates in the agreement so that the

state could comply with its terms. We disagree. First, we

reiterate that the Article III "case or controversy" requirement

mandates that the case be viable at all stages of the litigation;

"it is not sufficient that the controversy was live only at its

inception." C & C Products, Inc., 700 F.2d at 636.

Second, we have found no authority for the proposition that

a federal court may modify the terms of a voluntary settlement

agreement between parties before a decree has been entered. In

Evans v. Jeff D., 475 U.S. 717, 106 S.Ct. 1531, 89 L.Ed.2d 747

(1986), the Supreme Court explained the role of the district court

in reviewing settlements in class actions:

Rule 23(e) wisely requires court approval of the terms of any
settlement of a class action, but the power to approve or
reject a settlement negotiated by the parties before trial
does not authorize the court to require the parties to accept
a settlement to which they have not agreed. Although changed
circumstances may justify a court-ordered modification of a
consent decree over the objections of a party after the decree
has been entered, ... Rule 23(e) does not give the court the
power ... to modify a proposed consent decree and order its
acceptance over either party's objection.

Id. at 726-27, 106 S.Ct. at 1537 (footnotes omitted). Similarly,

the duty of an appellate court is simply to ascertain whether or

not the trial judge clearly abused his discretion in approving or
rejecting a settlement agreement. Cotton v. Hinton, 559 F.2d 1326,

1333 (5th Cir.1977).6 "We are not free to delete, modify or

substitute certain provisions of the settlement. The settlement

must stand or fall as a whole." Id. at 1331-32. Accord Jeff D. v.

Andrus, 899 F.2d 753, 758 (9th Cir.1989) ("[C]ourts are not

permitted to modify settlement terms or in any manner to rewrite

agreements reached by parties."); In re Warner Communications

Securities Litigation, 798 F.2d 35, 37 (2d Cir.1986) ("[I]t is not

a district judge's job to dictate the terms of a class settlement;

he should approve or disapprove a proposed agreement as it is

placed before him and should not take it upon himself to modify its

terms.").

In light of this clear precedent, we are convinced that

neither this court nor the district court has the power to modify

the effective dates in the proposed settlement agreement in order

to afford meaningful relief and escape the jurisdictional bar of

mootness. See Gilpin v. American Fed'n of State, County, and Mun.

Employees, AFL-CIO, 875 F.2d 1310, 1313 (7th Cir.) ("Even the

United States Court of Appeals ... cannot make time run

backwards."), cert. denied, 493 U.S. 917, 110 S.Ct. 278, 107

L.Ed.2d 258 (1989). Moreover, even if we had the power to modify

the dates in the agreement as Plaintiffs suggest, we conclude that

it would be inappropriate to impose a settlement that has expired

by its own terms on parties no longer in agreement on the propriety

6
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc), this court adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
of the settlement. Cf. Thibaut v. Ourso, 705 F.2d 118, 121 (5th

Cir.1983) (dismissing appeal as moot and stating that plaintiff

"cannot ask this Court to reconstruct a legal and financial puzzle

which is now missing several pieces"). We have no way of reading

the minds of the parties to ascertain their evaluation of the

circumstances under which they settled or the importance of the

discrete terms of the agreement, including the date-specific

provisions involved in the proposed settlement. Thus, we decline

Plaintiffs' invitation to modify the terms of the agreement to save

this appeal from mootness. Accordingly, because we cannot afford

meaningful relief in this case, we conclude that this appeal must

be dismissed as moot unless it falls within a specific exception to

the mootness rule.

There are several well-established exceptions to the mootness

doctrine. First, a case is not moot where the issue raised is

"capable of repetition, yet evading review." See, e.g., Naturist

Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir.1992)

(citations omitted). This exception allows a court to reach the

merits of a case which is otherwise moot if (1) there is a "

"reasonable expectation' or a "demonstrated probability' that the

same controversy will recur involving the same complaining party,"

and (2) the "challenged action was in its duration too short to be

fully litigated prior to its cessation or expiration." The News-

Journal Corp. v. Foxman, 939 F.2d 1499, 1507 (11th Cir.1991)

(quoting Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d

353 (1982) (per curiam)). Thus, "[a] controversy is not capable of

repetition if there is only "a mere physical or theoretical
possibility' of recurrence." C & C Products, 700 F.2d at 637

(citations omitted).

This exception is inapplicable in the present case. The

issues in this case are theoretically capable of repetition, in

that the parties could propose a new settlement agreement with

similar terms of questionable constitutional validity. In light of

the changed circumstances (including the declaratory judgment in

favor of the state in the Section 5 action), however, we deem it

extremely unlikely that the state will settle the Section 2 action

again and cause an identical dispute over the validity of a

settlement agreement.7 Consequently, this case does not manifest

"a demonstrated probability that the same controversy will recur,

involving the same complaining party." Murphy, 455 U.S. at 482,

102 S.Ct. at 1183.

In addition, we are not persuaded that the issues in this case

"evade review." First, we note that the issues in this appeal

evade review only because of date-specific provisions set

voluntarily by the parties. Thus, while it is true that this

particular appeal was mooted before the issues raised could be

addressed, it does not follow "that similar future cases will evade

review." Neighborhood Transp. Network, Inc. v. Pena, 42 F.3d 1169,

1173 (8th Cir.1994). A dismissal of this appeal as moot would not

preclude the parties from proposing a new settlement agreement with

different terms and litigating the issue of its validity in a

7
At oral argument, counsel for the state assured this court
that in light of the intervening decision of the District Court
for the District of Columbia in Georgia v. Reno, see supra note
3, the state "certainly has no interest" in reaching another
settlement in the Section 2 action.
subsequent appeal. There is no reason to expect that any

subsequent agreement by the parties would necessarily include

stringent time limitations likely to expire before an appeal could

be heard. Accordingly, "we do not believe this type of claim is

inherently of such short duration that it consistently will evade

future appellate consideration." Pacific Ins. Co., 28 F.3d at

1097. Furthermore, the district court retained jurisdiction of the

case, which may be litigated on the merits and the outcome appealed

should the parties choose to take that route. See Tropicana, 874

F.2d at 1583 (holding that the case did not "evade review" where

the trial court still had the opportunity to address the merits of

the case). For these reasons, we conclude that the rare exception

for issues "capable of repetition, yet evading review" is

inapplicable in the present case.

Another exception to mootness applies where "an appellant has

taken all steps necessary to perfect the appeal and to preserve the

status quo before the dispute becomes moot." B & B Chemical Co. v.

EPA, 806 F.2d 987, 990 (11th Cir.1986). "This exception, however,

is an extremely narrow one that has been limited primarily to

criminal defendants who seek to challenge their convictions

notwithstanding that they have been released from custody."

Ethredge, 996 F.2d at 1176-77 (footnote omitted). Therefore, the

"all necessary steps" exception does not save the appeal in this

case from dismissal for mootness.

A third exception to the doctrine of mootness allows review

of an otherwise-moot case if the district court's order will have

dangerous collateral consequences if not reversed. See, e.g., B &
B Chemical Co., 806 F.2d at 990. There is no such danger in the

present case, however, as the district court's order is limited to

the specific terms of the settlement agreement. Thus, no

collateral consequences are present to warrant an exception to

mootness in this case.

In summary, Plaintiffs have not articulated a persuasive

argument against dismissing this appeal as moot. Alternatively,

they contend that "[w]hether or not the settlement agreement could

be implemented in the event of a reversal by this Court is

essentially a factual determination which could best be determined

in the first instance by the district court." Appellants' Reply

Brief at 2. Thus, Plaintiffs propose that, in the event of a

reversal, this court should "remand for implementation of the

agreement, or with directions for the district court to withhold

approval of the agreement in the event it found the settlement to

be moot after the parties have the opportunity to develop a current

record going to that issue." Id.

We reject this argument. First, mootness is a threshold

jurisdictional inquiry. As discussed above, "Article III denies

federal courts the power "to decide questions that cannot affect

the rights of the litigants in the case before them.' " Lewis, 494

U.S. at 477, 110 S.Ct. at 1253 (quoting North Carolina v. Rice, 404

U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971)). It would

be clearly improper for us to ignore the obvious mootness issue in

this case, decide the merits of the appeal, and then remand to the

district court for an after-the-fact determination of whether a

case or controversy exists to give us jurisdiction. In addition,
we believe it unnecessary to remand to the district court for a

"factual determination" of whether the settlement agreement could

be implemented, as it is apparent from the dates in the agreement

that the state cannot possibly comply with its terms. Therefore,

we reject Plaintiffs' suggestion that we remand to the district

court to determine the mootness issue. Instead, based on the

expired terms of the proposed agreement at issue, we conclude that

we cannot afford meaningful relief in this case, that no exception

to the mootness doctrine applies, and that this appeal is therefore

moot and ought to be dismissed.

III.

As a general rule, "[w]hen a case becomes moot after the

district court enters its judgment but before this court has issued

a decision, we are divested of jurisdiction and must dismiss the

appeal and vacate the underlying judgment." Ethredge, 996 F.2d at

1175 (citations omitted). In the case of interlocutory appeals,

however, "the usual practice is just to dismiss the appeal as moot

and not vacate the order appealed from." In re Tax Refund

Litigation, 915 F.2d 58, 59 (2d Cir.1990) (citations omitted); see

also 13A C. Wright, A. Miller & E. Cooper, Federal Practice and

Procedure § 3533.10, at 435-36 (2d ed. 1984). We have followed

this practice and dismissed moot appeals without vacating the

underlying district court order in cases involving appeals from

preliminary injunctions and interlocutory orders. See, e.g.,

Pacific Ins. Co., 28 F.3d at 1097; Tropicana, 874 F.2d at 1584;

C & C Products, 700 F.2d at 638. Accordingly, we dismiss the

appeal as moot, but we do not vacate the district court's order.
 We emphasize that our dismissal of this appeal as moot is

necessarily limited to the specific order before us: the district

court's rejection of the proposed settlement agreement. See

Ethredge, 996 F.2d at 1175. Still pending before the district

court is the broader issue of the merits of Plaintiffs' Section 2

claim.

For all of the foregoing reasons, Plaintiffs' appeal is

DISMISSED, and the case is REMANDED to the district court for

further proceedings consistent with this opinion.

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
GEORGIA BRUNSWICK DIVISION

Tyrone Brooks, et al., Plaintiffs,

v.

State Board of Elections, et al., Defendants.

Civil Action File No. CV288-146

CONSENT DECREE

This matter comes before the Court for judicial approval of a

settlement entered into between the parties in the above captioned

case.

A. Introduction

Brooks v. Georgia State Board of Elections, Civ. No. CV288-146

(S.D.Ga.) (hereinafter "Brooks I") was filed on July 13, 1988,

alleging violations of Sections 2 and 5 of the Voting Rights Act,

42 U.S.C. § 1971, et seq., as well as the First, Thirteenth,

Fourteenth and Fifteenth Amendments of the Constitution of the

United States, in the manner in which the State of Georgia elects

its superior court judges.
 Brooks v. Miller, Civ. No. 1:90-CV-1001-RCF (N.D.Ga.)

(hereinafter "Brooks II"), was filed on May 8, 1990, alleging that

the use of a majority vote requirement for federal, state, and

county elections in Georgia, O.C.G.A. § 21-2-501, was in violation

of Section 2 and the First, Thirteenth, Fourteenth and Fifteenth

Amendments of the Constitution of the United States.

The courts have jurisdiction of the above described actions

pursuant to 42 U.S.C. §§ 1971(d), 1973j(f) and 28 U.S.C. §§ 1331,

1343, 2201 and 2202.

B. Parties

1. Brooks I

The plaintiffs in Brooks I are twenty-two (22) black citizens

and voters from throughout the State of Georgia. They allege that

the use of at-large, numbered post elections for superior court

judges, using a majority vote requirement, violates both Sections

2 and 5 of the Voting Rights Act. They also challenge the manner

in which certain judicial circuits are drawn. Further, they allege

that the State of Georgia has illegally implemented numerous

statutes creating additional superior court judgeships, without

first obtaining preclearance from the United States Department of

Justice or the United States District Court for the District of

Columbia. Since the filing of the complaint, plaintiffs have

broadened their challenge to include the statewide method of

electing appellate court judges, i.e., the judges of the court of

appeals and supreme court, and the at-large method of electing

state court judges.

Defendants are the Secretary of State and the Georgia Board of
Elections, who are charged with the responsibility for supervising

the conduct of elections for judges of the superior court in the

various circuits throughout the state.

2. Brooks II

The plaintiffs in Brooks II are twenty-seven (27) black

citizens and voters throughout Georgia, and include the plaintiffs

in Brooks I. They allege that the statewide majority vote

requirement was adopted in 1964 with a racially discriminatory

purpose, and that it has a discriminatory result in violation of

Section 2 and the Constitution.

Defendants are the Governor, the Georgia Board of Elections,

the Secretary of State, and the Constitutional Officers Election

Board, who have the duty of administering and implementing the

statewide majority vote requirement, and the DeKalb County, Georgia

Board of Elections, and the Superintendent of Elections of DeKalb

County, who were sued on their own behalf and as representatives of

a class consisting of other boards and entities in Georgia which

administer and implement the statewide majority vote requirement in

their respective counties.

C. Course of Relevant Proceedings to Date

1. Brooks I

Between 1964 and 1988, Georgia enacted 80 statutes regarding

the election of superior court judges. All told, seventy-seven

judgeships and five new circuits were created. The judgeships and

new circuits were implemented by the state shortly after enactment.

On June 27, 1988 the State submitted these statutes to the

Attorney General for preclearance. By letter of August 26, 1988
the Attorney General notified the State he did not object to

thirty-one of the proposed changes, and requested additional

information regarding the remaining changes. The State elected

instead to litigate the question of Section 5 coverage in the

Brooks I court rather than complete the administrative submission.

Because that submission was not completed, the Attorney General

objected to the remaining pending statutes on June 16, 1989, at

which time none of the additional requested information had been

submitted.

On May 16, 1989, plaintiffs filed a motion for preliminary

injunction, seeking to enjoin any further implementation of these

unprecleared statutes. By order of December 1, 1989, the court

gave defendants thirty (30) days within which to submit the

information requested by the Attorney General and ordered that no

further appointments or elections could be made as to 48 judgeships

until preclearance was obtained. Brooks v. Georgia State Board of

Elections, 775 F.Supp. 1470, 1482-83 (S.D.Ga.1989).

The State of Georgia provided the requested information to the

Attorney General within the time frame set by the court. On April

25, 1990, the Attorney General entered an objection on the merits

to all 48 judgeships, finding that the state had not carried its

burden of proving that the changes had neither a discriminatory

purpose nor discriminatory effect. A copy of that objection letter

is a part of the stipulated evidence in the record in these cases.

By order of May 29, 1990, as amended on June 25, 1990, the

court provided that incumbent judges could continue to hold office

until the preclearance question was finally resolved in the United
States District Court for the District of Columbia, but continued

the bar against appointment or election as to those judgeships

which had not yet been precleared. The orders of the court finding

that the disputed voting practices were covered by Section 5, and

implementing a remedy, were affirmed by the Supreme Court. Brooks

v. Georgia State Board of Elections, 498 U.S. 916, 111 S.Ct. 288,

112 L.Ed.2d 243 (1990), and Georgia State Board of Elections v.

Brooks, 498 U.S. 916, 111 S.Ct. 288, 112 L.Ed.2d 243 (1990).

Although a declaratory judgment action was filed by the state in

the U.S. District Court for the District of Columbia, Georgia v.

Barr, C.A. No. 90-2065 (D.D.C.), no preclearance has been obtained

as of this date as to a total of 62 judgeships.

No proceedings have yet been held as to plaintiffs' claims

under Section 2 of the Voting Rights Act.

2. Brooks II

The statewide majority vote requirement provides in relevant

part that "no candidate shall be nominated for public office in any

primary or elected to public office in any election unless such

candidate shall have received a majority of the votes cast to fill

such nomination or public office." O.C.G.A. § 21-2-501. The

statute applies to all federal, state, and county elections, except

the general election for Governor, in which a majority vote

requirement is separately provided for by Ga.Laws 1968, pp. 977 and

1562. A majority vote requirement is also in effect for municipal

elections by virtue of Ga.Laws 1968, p. 885, O.C.G.A. § 21-3-407,

except for those municipalities whose charters provide otherwise.

The plaintiffs in Brooks II did not challenge the majority vote
requirement for municipal elections, nor did they challenge the use

of a majority vote requirement pursuant to a court ordered or court

approved district election plan adopted subsequent to the enactment

of the state wide majority vote rule.

Plaintiffs filed a motion for a preliminary injunction against

further use of the majority vote requirement on May 31, 1990, on

the ground that the requirement was adopted with a racially

discriminatory purpose and had a racially discriminatory effect in

violation of Section 2. After conducting an evidentiary hearing

July 9-14, 1990, the court denied the motion on July 17, 1990. The

court denied injunctive relief, inter alia, on the ground that

"such relief would not be in the public interest at this point in

the election cycle." (Order at 14)

On July 17, 1990, the court entered an order certifying the

case as a class action on behalf of all present and future black

registered voters of Georgia. On November 14, 1990, the court

entered a further order with the consent of plaintiffs dismissing

the DeKalb County defendants based upon the stipulation by the

state defendants that they would enforce any outstanding order of

the court that awarded plaintiffs relief, not only in the election

of statewide officers but also in the election of county offices

affected by the majority vote requirement. Dismissal of those

local defendants was without prejudice to their being added later

and with plaintiffs reserving the right to move for defendants'

class certification in that event.

On August 9, 1990, the United States filed a similar challenge

to the statewide majority vote requirement, United States v.
Georgia, Civ. No. 1:90-CV-1749 (N.D.Ga). The defendants were

essentially identical in both cases, except that the State of

Georgia was named as a defendant in United States v. Georgia,

supra, and not in Brooks II. The Dekalb County defendants have

also been retained in the United States' case, and those defendants

have become representatives of a class of local defendants.

The United States requested an injunction against further use

of the majority vote requirement in those jurisdictions where the

majority vote requirement produces discriminatory results or where,

absent discriminatory results, no legitimate non-racial overriding

governmental purpose exists for the continued use of the

requirement. Upon motion of the plaintiffs in Brooks II, the two

majority vote cases were consolidated by order of the court on

December 21, 1990. A proposed pretrial order was filed by the

parties in the consolidated cases on February 28, 1992, but the

court has not entered a pretrial order as of this date.

On July 16, 1992, upon joint motion of the parties in Brooks

II, which was unopposed by the United States, the court entered an

order designating the Honorable Anthony A. Alaimo, Senior Judge for

the U.S. District Court for the Southern District of Georgia, to

serve as a mediator to mediate toward a successful settlement of

the judicial selection and majority vote cases.

D. The Course of Settlement Dealings Between the Parties.

On many occasions, the Brooks plaintiffs and representatives

of the State of Georgia have met to discuss the possibility of

settling the claims asserted in these cases. Those discussions

become particularly earnest at the time of the 1990 session of the
General Assembly. However, notwithstanding the extended good faith

efforts of the parties in search of possible settlements, it was

not until 1992 that the parties' efforts yielded an agreement that

could be the basis of resolving their disputes. As a practical

matter, the success of the settlement discussions in 1992 coincided

with the efforts of the Honorable Anthony A. Alaimo to serve as a

mediator between the parties. Under Judge Alaimo's guidance and

direction, the Brooks plaintiffs' representatives met with the

representatives of the State on a number of occasions from April,

1992 to June, 1992, when all concerned explored a variety of

possible ways of resolving the parties' claims, defenses and

legitimate interests. An agreement was ultimately reached between

the Brooks plaintiffs and the State on June 17, 1992, and the terms

of their agreement is reflected in the June 17, 1992 Settlement

Memorandum of Michael J. Bowers and Laughlin McDonald to the

Honorable Anthony A. Alaimo, which has been signed by Attorney

General Bowers and Governor Miller on behalf of the State, and by

Laughlin McDonald, Tyrone Brooks and others on behalf of the

plaintiffs. This agreement is part of the stipulated evidence

before the court.

As set forth in that Settlement Memorandum, the settlement

itself is contingent upon the United States' approval and

concurrence with the settlement regarding both the method of

electing Georgia's judges and disposition of the majority vote

claims. Pursuant to the June 17, 1992 Settlement Memorandum and

the Brooks II court's official designation of Judge Alaimo as a

mediator in the majority vote cases, further negotiations took
place between the United States and the State of Georgia. Those

negotiations produced a final Agreement on July 29, 1992 between

those parties that was signed by Attorney General Bowers on behalf

of the State of Georgia and by John R. Dunne, Assistant Attorney

General, Civil Rights Division, Department of Justice, for the

United States of America. That Agreement provides terms for the

resolution of the claims between the United States and the State of

Georgia. It, too, is part of the stipulated evidence before the

court.

E. The Terms of Settlement.

By entering into this Consent Decree, defendants make no

admission of liability and specifically deny plaintiffs'

allegations and claims. At the same time, the defendants and

plaintiffs acknowledge that, in their respective opinions based on

the advice of their counsel, neither party is certain of prevailing

on any particular claim or defense in this action. The parties

hereto are desirous of ending the lawsuits pending between them,

and other lawsuits between the State of Georgia, its officers, and

the United States (to which the Brooks plaintiffs are not parties).

To that end, all of the parties hereto have agreed to resolve the

Brooks I and Brooks II class actions on the following terms and

conditions.

1. The complaint in Brooks I is hereby amended to allege that

the use of at-large, numbered-post elections for appellate court

judges, those of the Court of Appeals and the Supreme Court, and

for state court judges, using a majority vote requirement, violates

Section 2 of the Voting Rights Act.
 2. By December 31, 1994, there will be a total of no fewer

than 25 black superior court judges serving, which would be a total

derived from (1) those serving in existing seats, (2) those serving

in enacted but unfilled (frozen) seats, (3) persons appointed to

the State Assignment Judgeships, and (4) persons appointed to newly

enacted seats in existing circuits prior to December 31, 1994. In

addition, by December 31, 1994, five other black persons will be

appointed to either state or superior court seats in addition to

the number serving as of June 17, 1992.

3. Superior court, state court, and appellate court judges

will be subject only to "retention" elections after this order

takes effect. That is, any judge who seeks an additional term for

the same judicial office will be retained in office by vote of the

electorate. The retention election will be nonpartisan, will be

held at the time of the regular general election, and will require

the affirmative vote of a majority of those voting on the question

to retain the judge. The question submitted to the electorate will

be substantially in the following form: "Shall ___ be retained as

[justice] [judge] of the ___ court for ___ years? ___ yes ___ no."

4. Future appointments to the superior courts shall serve no

less than two years prior to standing for a retention election.

5. The present Judicial Nominating Commission (JNC) will be

increased by two persons, to serve until December 31, 1994, one of

whom will be one of the attorneys for the plaintiffs, and the other

of whom will be chosen by the Governor from a list of four names

that the plaintiffs will give to the Governor. These names may

include the plaintiffs.
 6. The Governor and the JNC will be responsible for

affirmative outreach to fill existing and upcoming vacancies and

the JNC will assist in the implementation of this agreement.

7. In the event any vacancies occur by virtue of a "no vote"

in a retention election held prior to December 31, 1994, or in the

first retention election for any judge appointed pursuant to

Paragraph E(2) of this Order, the then-existing JNC, but augmented

pursuant to Paragraph E(5) of this Order, will be responsible for

making recommendations to the Governor for the filling of those

vacancies.

8. A special category of superior court judges will be created

known as State Assignment Superior Court Judgeships, and this

category of judges shall exist for a period not to exceed 10 years.

Qualified minority lawyers will be appointed as such judges by the

Governor, upon review and recommendation by the JNC. State

assignment judges will be authorized to serve, by assignment, in

any circuit in the state.

9. Gubernatorial appointment will be limited to JNC

recommendations until such time as the court's jurisdiction

terminates pursuant to Paragraph E(16) of this Order.

10. A new executive order shall be promulgated concerning the

JNC, its functions, objectives, and composition, after January 1,

1995, and those portions of that order that are germane to the

resolution of the issues in this case shall be adopted and made an

order of the court in Brooks I, such order to terminate when the

Jurisdiction of this court terminates under Paragraph E(16) of this

Order. If the parties are unable to agree on the terms of such an
order, these differences shall be resolved by the Honorable Anthony

A. Alaimo pursuant to Paragraph E(13) of this Order. In the event

that the State Bar of Georgia is appointed an ex-officio member of

the JNC, then the President of the Georgia Alliance of African-

American Attorneys shall be appointed ex officio to the JNC.

11. Subsequent to January 1, 1995, the Judicial Nominating

Commission shall make recommendations for the superior, state and

appellate courts to the Governor without regard to race, color or

ethnic origin and the members thereof shall be specifically

prohibited from discriminating on the basis of race in making said

recommendations.

12. Subsequent to January 1, 1995, the Governor of the State

of Georgia shall make his/her appointments to the superior, state,

and appellate courts without regard to race, color or ethnic origin

and he/she shall be prohibited from discriminating in appointments

on the basis of race.

13. The Honorable Anthony A. Alaimo shall serve as an

arbitrator of disputes concerning the enforcement of this order,

until jurisdiction is terminated pursuant to Paragraph E(16) of

this order, and in the event of the inability of Judge Alaimo to so

serve, the court shall appoint a successor or substitute to Judge

Alaimo. Judge Alaimo shall specifically have the authority to

oversee the actions of the JNC and the Governor with regard to the

appointment of judges under the terms of the order, and he shall be

empowered with regard to those appointments occurring on or after

January 1, 1995 to review the recommendations and appointments of

the JNC and the Governor to ensure that said actions have been made
without discrimination on the basis of race, color or ethnic

origin. The specific right of the plaintiffs to challenge the

actions of the JNC or of the Governor hereunder does not

contemplate the right to "second guess" individual appointments,

but rather the right of the plaintiffs to challenge the actions of

the JNC or the Governor because of a pattern of appointing white

applicants over equally or more qualified black applicants.

14. There shall be no residency requirement for appointment to

the superior court bench other than residency within the circuit at

the time of taking office and the existing requirement prescribed

by law concerning residency within the State of Georgia.

15. The goal of the State of Georgia is a diverse judiciary

reflective of the population of the State as a whole.

16. The jurisdiction of the court in Brooks I shall terminate

upon the State achieving a racially diverse appellate, superior and

state court bench which shall be reasonably representative of the

population of the State as a whole considering among other factors

the percentage of African-American attorneys eligible to serve as

judges. The State may petition the court for an end to its

jurisdiction at any time it deems it has complied with this

paragraph.

17. A class action on behalf of all present and future black

voters in the State of Georgia has already been certified in both

Brooks I and Brooks II.

18. The plaintiffs' claims in Brooks I are hereby dismissed

with prejudice. This dismissal, however, does not preclude the

plaintiffs from making claims under Section 2 to the system of
nominations, appointments, and retention elections that are

established pursuant to this Consent Decree. No such challenge,

however, may be brought before all judges appointed on or before

December 31, 1994 have gone through at least one retention

election.

19. This consent decree is conditioned upon approval of a

consent decree in Brooks II incorporating the terms of the

settlement agreement between the parties that relate to the

majority vote issues. Specifically, that would include the

dismissal of the complaint in Brooks II with prejudice, provided

that such dismissal would not include the plaintiffs' claim

involving use of a majority vote requirement for all offices that

are elected state-wide, which claim would remain pending upon entry

of said decree. That remaining claim, however, would also be

deemed dismissed with prejudice unless plaintiffs file a written

demand for trial no sooner than December 31, 1994 and no later than

June 15, 1995.

20. This Consent Decree is further conditioned upon the entry

of a judgment of dismissal with prejudice of the complaint that has

been brought by the United States for the Northern District of

Georgia involving its challenge to the use of the majority vote

requirement in Georgia; provided, however, said dismissal with

prejudice shall not include the United States' claims involving use

of the majority vote requirement for all offices elected state-wide

and for all offices elected at-large on a countywide basis. Those

additional claims, however, would also be deemed dismissed with

prejudice unless the United States files a written demand for trial
no sooner than December 31, 1994 and no later than June 15, 1995.

21. Upon notification by the parties that the conditions

specified in the foregoing paragraphs 19 and 20 have been

satisfied, the court will enter an appropriate order making this

consent decree the final judgment of the court.

SO ORDERED this __ day of ________, 1994.

— — — — — — —

UNITED STATES DISTRICT

JUDGE

CONSENTED TO:

/s/ M. Laughlin McDonald M. Laughlin McDonald Counsel for

Plaintiffs ACLU Foundation, Inc. 44 Forsyth Street, N.W. Suite 202

Atlanta, Georgia 30303 404/523-2721

MICHAEL J. BOWERS Attorney General of the State of Georgia

Georgia Bar No. 071650

CAROL ATHA COSGROVE Senior Assistant Attorney General Georgia

Bar No. 189150 132 State Judicial Building Atlanta, Georgia 30334

404/656-2647

WALBERT & HERMANN

By: /s/ David F. Walbert David F. Walbert Georgia Bar

No. 730450 100 Peachtree Street Suite 1010 Atlanta, Georgia 30303

404/523-5000

Attorneys for State Defendants