Jose Aranda v. J. B. Van Sickle

600 F.2d 1267, 1979 U.S. App. LEXIS 13254

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 12, 1979
• Docket: 77-2714
• Status: Published

Opinions

BARNES, Senior Circuit Judge:

This is an appeal from the granting of a motion for summary judgment made by the defendants, who were once members of the city council, and the Mayor, of the City of San Fernando, California.

The district court found that the plaintiffs, members of the San Fernando Mexican-American community, who brought this class action under 42 U.S.C. § 1983, had failed to establish that the at-large election scheme used by the City of San Fernando to elect its city council was unconstitutional under the Fourteenth, Fifteenth, Nineteenth, and Twenty-sixth Amendments to the United States Constitution.

I. FACTS:1

The City of San Fernando, which has a population of 16,500, was incorporated in 1911 under California Government Code Section 34102. It has used an at-large election scheme under California Government Code Section 36503 or its predecessors in selecting its members of the five-person city council since that time. Council members are elected for terms of four years. The mayor is selected from among the council members.

Since 1911 only three Mexican-Americans have been elected to the city council despite the fact that Mexican-Americans comprise approximately fifty percent of the population. Because of this, plaintiffs, all members of the Mexican-American community and some of whom ran for the city council and lost, bring this class action alleging that they have been denied equal protection.

Plaintiffs contend that San Fernando is racially polarized. In support of this proposition they present certain historical data: old newspaper articles with racist overtones, and deeds which contain racially restrictive covenants until these covenants were declared unconstitutional by the Supreme Court in 1948 in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948).

The city is divided into geographically separate communities. Census tract 3202 which is known as the barrio contains 37% of the total city population. However, the tract contains 80.1% of the population with Spanish surnames. The tract has a higher density, more children per woman, fewer high school graduates, higher unemployment, more low income families and families below poverty level, than the rest of the city. In short, the barrio is a geographically distinct community which is organized along racial lines.

Although Mexican-Americans comprise 48.9% of the population (1970 census), they comprised only 28.7% of the registered voters in 1972. Voting appears to follow racial lines, that is members of the white community vote for white candidates while members of the Mexican-American community vote for Mexican-American candidates. Neither members of the city council nor the mayor have lived in the barrio for the ten years prior to the institution of this suit.

During the 1972 elections certain members of the Mexican-American community were subjected to harassment by the police. Specifically, certain Mexican-American poll watchers were followed by the police to different polling places and questioned intensively despite the fact that the poll watchers had a right to be at the polls and were operating with the knowledge of the city clerk. In addition, private homes of white citizens are often used as polling places: in 1972, 5 out of 15 polling places were located in public buildings; in 1970, 7 out of 13 polling places were located in public buildings; and in 1964, 3 out of 27 polling places were located in public buildings. The private homes which were used were invariably not Spanish-surnamed households. The percentage of Spanish-surnamed persons participating in the mechanics of operating the election was also low. In 1976 only 6% of the inspectors and 13% of the judges had Spanish surnames.

Mexican-Americans were also sparsely represented on 18 city commissions. None of the city commissions had 50% Mexican-American membership. Over the 10 years prior to the institution of this suit, 6 of the city commissions had no Spanish-surnamed appointees and the Planning Commission had only 3 members who were barrio residents during those ten years. The following commissions had from 6% to 18% Spanish-surnamed membership: Citizens Committee on Redevelopment, Community Cultural Development, Lopez House, Personnel Board, Planning Commission and Steering Committee — Recreation Park Issue. The city employed 35 Spanish-surnamed persons in 1974 in contrast to 92 whites and the vast majority of the Spanish-surnamed persons were the lower paid employees.

Plaintiffs also allege that the city is not responsive to the needs of the Mexican-American community. As specific examples the Newville-Meyer General Plan which would have expanded a street in the barrio and, so the residents felt damaged the “residential integrity” of the barrio; a high-rise apartment complex proposed by the city which would have forced low income Mexican-Americans from the city, and the failure of the city to place a stoplight at a street intersection located in the barrio despite the fact that many accidents had occurred at the intersection.

Plaintiffs also state that discriminatory campaign tactics were used in elections in which there were strong Mexican-American candidates. In support of this they quote from a 1954 editorial which appeared in the San Fernando Sun. They allege the article which attacked Jose Aranda, a Mexican-American’s candidacy, was racially oriented. The article stated:

“For the record ... on June 8, 1951, JOSE ARANDA (together with Lee Ward, Sam Richardson, Gilbert Dotson, Robert Martinez and John Anderson), signed the official ‘notice of intention to recall’ ‘Herb’ Martin . . . one of the finest city councilmen we have ever had.

“For the record . . . JOSE ARAN-DA was the president of the so called ‘Civil Betterment League’ which backed Smith, Schofield and Padilla which tried to wreck the protection of civil service . . . which published the ‘Bulletin.’ ”

In 1972, Jess Margarito, Richard Corona, and Alfred Bernal were the Mexican-American candidates for the city council. At that time an extensive voter registration drive was initiated by the Mexican-American community. As a result of this drive, 28.7% of all voters were Spanish surnamed. Just prior to the election, the city clerk issued statements concerning alleged voter registration irregularities. The incumbent mayor then issued a press release in which he stated:

“Obviously our city election offers an enticing target to any outside organized group who needs a base of operations for their form of political activism. I believe it to be part of a State-wide trend whereby activists are attempting to wrest control of as many city governments in California as they possibly can from those they brand as ‘Establishment.’ They seek to gain entry into our houses of government that they may throw wide the doors to their followers who are waiting at the gates to join in the disruption of our orderly governmental processes. Their goal is chaos in government.”

Plaintiffs allege that the statement concerning outside political agitators was an obvious reference to the La Raza Unida Party, a Mexican-American organization, which had conducted the voter registration drive. Whether the statements were designed to spread racist fears or not, the largest number of people turned out to vote in a city election in San Fernando history.

The City of San Fernando in a letter to its California assemblyman has justified its preference for at-large elections in this manner:

“District elections in some cities are desirable and exist in these cities where residents have voted to use them. However, in some cities, the use of districts would not only artificially limit qualified people from serving on city councils, but would make it difficult for some cities to recruit candidates in every district which is necessary for meaningful choice by the voters.”

Plaintiffs contend that this statement is tantamount to saying that the statement must be taken to express doubt that qualified Mexican-American candidates from the barrio will present themselves and take issue with the statement.

II. ISSUES

1. Does the “at large” election method used by the City of San Fernando in electing members of the city council violate plaintiffs’, Mexican-American voters’, right to equal protection and right to vote under the Fourteenth, Fifteenth, Nineteenth and Twenty-sixth Amendments of the United States Constitution?

2. Did the district court err in its determination that there was no genuine issue of material fact present in this case and that viewing the evidence in the light most favorable to the plaintiffs, summary judgment in favor of the defendants should be granted as a matter of law?

Inasmuch as this is an appeal from the granting of a motion for summary judgment, we turn to the record to ascertain if the proceedings below complied with Rule 56 of the Rules of Civil Procedure. The court's Findings of Fact and Conclusions of Law appear at pages 1245 — 1249, Yol. V (or IV A) of the Record on Appeal, and appear in the attached Appendix A. The district court judge found there was no material issue of fact remaining to be litigated.

Thereafter a Memorandum Opinion was filed by the district court judge. It appears at pages 1171 to 1180 in Vol. V (or IV A) of the Record. The trial judge’s opinion is published in 455 F.Supp. 625.

Because this is an appeal from a complaint charging invidious discrimination against a municipal government, we find ourselves in a legal area (once described as a “mathematical quagmire”), with no precise guidelines from the Supreme Court. See Wise, Mayor v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978).²

III. CONCLUSION

We are satisfied that the summary judgment granted by the District Court was properly granted, inasmuch as the plaintiffs failed to raise a genuine issue of material fact indicating that they have been denied access to political process (i.e., to register, to vote, to be candidates for public office, to campaign for office, to participate in the selecting of candidates, or to hold office), or that the San Fernando elections for City Council were “conceived or operated as purposeful devices to further racial [or economic] discrimination.” Whitcomb v. Chavis, 403 U.S. 124, at 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363 (1971). The defendants were hence entitled to summary judgment as a matter of law.

To paraphrase the Supreme Court in Whitcomb,

“Nor does the fact that the number of ghetto residents who were legislators was not in proportion to ghetto population satisfactorily prove invidious discrimination absent evidence and findings that ghetto residents had less opportunity than did other [City of San Fernando] residents to participate in the processes and to elect [councilmen] of their choice.” (Id. at 149), 91 S.Ct. at 1872.

Again to paraphrase the words of Mr. Justice White in Whitcomb v. Chavis, supra:

“The mere fact that one interest group or another concerned with the outcome of . elections has found itself outvoted and without . . . seats of its own provides no basis for involving constitutional remedies, where, as here, there is no indication that this segment of the population is being denied access to the political system.” (Id. at 154-155, 91 S.Ct. at 1875).

Here we have in the record no protracted history of racial discrimination affecting or touching a minority’s ability to participate in the electoral process (such as segregated schools, tests to qualify voters, or refusal to register Mexican-Americans) which are the background of many cases arising out of the Fifth Circuit. See Zimmer v. McKeithen, 485 F.2d 1297 (1973) where it was held a “panoply of factors” may be introduced to prove the fact of dilution, which is established “upon proof of the existence of an aggregate of these factors.” (Id. at 1305).

The defendants question the weight of any discernible aggregation of factors. They assert, for example, that the small size of the city — both in area — (2.1 sq. mi.) and in population (16,751 at the time of trial) militate against multi-district elections. We agree with appellants there is no per se rule against multi-district elections because of physical size or size of population. But obviously, there comes a time when the rule of de minimis should be considered; and this factor of size or the lack of it, is one of the factors which is to be considered when determining the weight of the aggregate.

Graves v. Barnes, 343 F.Supp. 704 (1972), a 3-judge case, was reviewed by the Supreme Court sub nomine White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1972). The Supreme Court found no invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment solely because there was a 9.9% variation between the number of voters in the largest and smallest district (412 U.S. 755, 761-764, 93 S.Ct. 2332); but that in Dallas and Bexar Counties there existed more than a mere variation between districts.³ As to the two counties last named the essential proof to comply with plaintiff’s burden of proof did exist—namely, that members of the swing group had “less opportunity than did other residents of the district to participate in the political processes and to elect legislators of their choice,” pointing out that in the opinion in the District Court it had listed previous race discrimination in Texas.⁴

The Supreme Court then stated:

“. . . These findings and conclusions are sufficient to sustain the District Court’s judgment with respect to the Dallas multimember district and, on this record, we have no reason to disturb them.” (Id. at 767, 93 S.Ct. at 2340)

As the Graves v. Barnes, supra, per cu-riam opinion states (following the principle of Kramer v. Union Free School District, 395 U.S. 621 at 626, 89 S.Ct. 1886, 23 L.Ed.2d 583):

“. . . [W]hen a minority group is invidiously disadvantaged by the concom-itance of poverty, past and continuing discrimination, a restrictive electoral system, and a peculiar districting scheme, which gives it ‘less opportunity’ to participate successfully, the Court will void such an apportionment scheme.” (Id. at 732)

There seems little doubt that the plaintiffs herein represent a group which suffers poverty, but there is remarkably little, and no substantial, proof in the record of past discrimination, no substantial proof of continuing discrimination, and no proof whatsoever of any restrictive electoral system, or any peculiar districting scheme, which gives the group represented by plaintiffs “less opportunity” than other residents of San Fernando to participate successfully in the entire and complete electoral process in electing their municipal officers. In this case before us, the findings and conclusions made by the trier of fact are directly contrary to the findings and conclusions quoted by the Supreme Court in White v. Regester, supra. Just as in the latter case, “we have no reason to disturb them” (Id. at 767, 93 S.Ct. at 2340), and,

“On the record before us, we are not inclined to overturn these findings, representing as they do a blend of history and an intensely local appraisal of the design and impact of the Bexar County multi-member district in the light of past and present reality, political and otherwise.” (Id. at 769-770, 93 S.Ct. at 2341)

We adopt the opinion of the district court judge, 455 F.Supp. 625, and Affirm his action granting summary judgment to the defendants.

Appendix to follow.

APPENDIX “A”

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

The Motion of Defendants for Summary Judgment came on for argument on May 17, 1976 in courtroom 10 of the above entitled Court, the Honorable Jessie [sic] W. Curtis, Judge presiding.

John A. Lewis and Bill Thompson, attorneys of Lewis, Varni & Ghirardelli, counsel, appeared as attorneys for Defendants and Joaquin G. Avila of the Mexican American Legal Defense and Educational Fund, counsel, appeared for Plaintiffs. Plaintiffs’ filed a Memorandum of Points and Authorities in opposition to Defendants’ Motion for Summary Judgment. The matter was argued by counsel and submitted. Whereupon the Court on July 16, 1976 rendered its Memorandum of Opinion, finding and concluding as follows:

FINDINGS OF FACT

1. The City of San Fernando is not, nor has it been at any time in the recent past, racially polarized.

2. Mexican Americans can live anywhere in the city they choose to live.

3. The concentration of Mexican Americans in the “barrio”, cannot in any way be traced to city government but is the result of individual desire of the Mexican Americans to associate with those with similar racial and economic status.

4. The undesirable conditions in the barrio, such as old housing, unemployment, poverty, low levels of education, assuming they do exist, are social problems which, to a greater or lesser extent, face all communities and are problems which arise because local governments have not always been able to successfully accommodate the economically and educationally disadvantaged who constitute a portion of their citizenry and in San Fernando there is nothing in the record to indicate that race plays any role in the matter; the underprivileged, be they white, brown or black suffer the same unhappy fate.

5. Although Mexican Americans constitute 48.7 percent of the city’s population the highest percentage of registered voters they were able to obtain was 28.7 percent in 1972.

6. The failure of Mexican American voters to elect Mexican American candidates to the council in proportion to their population in the city is attributable, largely, to apathy of the Mexican American voters and not to racially polarized voting.

7. The electoral process is open to Mexican Americans to the same extent it is open to others.

8. There have been no racist campaign tactics against Mexican Americans either in the newspapers or by incumbents or anywhere else.

9. The charges of voter registration irregularities by the city clerk in the election of 1972 was not directed to the Mexican American Community and were made in the performance of her duties as city clerk.

10. The reference to the Mexican American candidates as activists in the elections of 1972 was probably in reference to La Raza Unida Party and its efforts to register Mexican Americans in the barrio and an attack upon this politically activist organization is no more evidence of racial polarity than an attack upon the John Birch Society.

11. There is no evidence of police harassment at the poles; if such incidents did occur, they were no more than a few isolated incidents which fall far short of establishing a pattern from which an inference of voter polarization may be drawn.

12. The concentration of Mexican Americans in nonprofessional categories with the accompanying lower salaries in the city government is attributable to low levels of education and low civic awareness not to any racial discrimination.

13. The small number of councilmen and commission members from the barrio is due to low civic awareness which is the result of high unemployment and low levels of education and not the result of racial discrimination.

14. In response to the needs of the Mexican American community, the city through the Redevelopment Agency was attempting to remove some of the blight in the barrio of which Plaintiffs complain.

15. The city government is not less responsive to Mexican American citizens than to other segments of the community.

16. The reason for maintaining the at large election scheme set forth by the City Administrator, Robert James, in a letter to Assemblyman James Kaiser, to the effect that it would make it difficult for small cities to recruit candidates in every district which is necessary for a meaningful choice by the voters, is reasonable and not arbitrary or capricious as San Fernando is a relatively small, compact city covering an area of approximately 17,000 persons.

17. The at large election scheme in the City of San Fernando is such as to allow all persons irrespective of race to participate in the governing process on an equal basis according to their wishes and their ability.

18. The failure of Mexican American registered voters to participate in the city government and to elect members to the council in proportion to their population has been due to apathy, lack of education, training and experience, lack of economic support and other similar reasons which are applicable to all persons irrespective of their race but who are otherwise similarly situated.

CONCLUSIONS OF LAW

(1) Plaintiffs’ have failed to prove any facts to support their contention that the city’s at large election scheme has brought about any dilution of the voting power of it’s [sic] Mexican American citizens or that it operates to invidiously discriminate against Mexican Americans.

(2) If all the facts alleged by plaintiffs are true, they do not support plaintiffs’ conclusions that the at large election scheme as utilized in the City of San Fernando invidiously discriminates against Mexican Americans.

The Court concludes therefore, that there is no substantial issue of fact which remains to be litigated and the Defendants are entitled to a Judgment as a matter of law. Defendants’ Motion for Summary Judgment is therefore granted and the clerk is ordered to enter Judgment therefore.

(s) JESSE W. CURTIS JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT.

1 . We adopt as facts those which, fairly read, are most supportive of appellants’ position.

2 . Apparently no Supreme Court case has ever explicitly held that an at-large system for election of members of a city’s council is unconstitutional.

“[W]e have never had occasion to consider whether an analogue of this highly amorphous theory (of White v. Regester, 412 U.S. 755, 765, [93 S.Ct. 2332, 37 L.Ed.2d 314] (1973)) may be applied to municipal governments. .

“[W]e need not today consider whether relevant constitutional distinctions may be drawn in this area between a state legislature and a municipal government.”

98 S.Ct. at 2502. Concurring opinion, Rehnquist, J.

3 . “The plaintiffs burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice Whitcomb v. Chavis, supra, [403 U.S.] at 149-150, [91 S.Ct. 1858.]” (White v. Re-gester, supra, 412 U.S. at 766, 93 S.Ct. at 2339).

4 . [T]he District Court first referred to the history of official racial discrimination in Texas, which at times touched the right of Negroes to register and vote and to participate in the democratic processes. 343 F.Supp. at 725. It referred also to the Texas rule requiring a majority vote as a prerequisite to nomination in a primary election and to the so-called ‘place’ rule limiting candidacy for legislative office from a multimember district to a specified ‘place’ on the ticket, with the result being the election of representatives from the Dallas multimember district reduced to a head-to-head contest for each position. These characteristics of the Texas electoral system, neither in themselves improper nor invidious, enhanced the opportunity for racial discrimination, the District Court thought. More fundamentally, it found that since Reconstruction days, there have been only two Negroes in the Dallas County delegation to the Texas House of Representatives and that these two were the only two Negroes ever slated by the Dallas Committee for Responsible Government (DCRG), a white-dominated organization that is in effective control of Democratic Party candidate slating in Dallas County. That organization, the District Court found, did not need the support of the Negro community to win elections in the county, and it did not therefore exhibit good-faith concern for the political and other needs and aspirations of the Negro community. The court found that as recently as 1970 the DCRG was relying upon ‘racial campaign tactics in white precincts to defeat candidates who had the overwhelming support of the black community.’ Id., at 727. Based on the evidence before it, the District Court concluded that ‘the black community has been effectively excluded from participation in the Democratic primary selection process,’ id., at 726, and was therefore generally not permitted to enter into the political process in a reliable and meaningful manner.” (White v. Regester, supra, at 766-767, 93 S.Ct. at 2339-2340).