REVISED United States Court of Appeals,
Fifth Circuit.
No. 96-50714.
LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) OF TEXAS, Plaintiff-Appellant,
v.
STATE OF TEXAS, Defendant-Appellee.
May 27, 1997.
Appeal from the United States District Court for the Western District of Texas.
Before DAVIS, STEWART and PARKER, Circuit Judges.
PER CURIAM:
The sole issue on appeal is whether the single-judge district
court erred in determining that LULAC's claim under § 5 of the
Voting Rights Act of 1965, 42 U.S.C. § 1973c (1994), is "wholly
insubstantial" and, thus, undeserving of the attention of a
three-judge court. Because we conclude that neither the legal nor
the factual aspects of LULAC's claim is wholly insubstantial, we reverse and remand for the convening of a three-judge court.
I.
On June 20, 1996, Associate Justice Phil Hardberger of the
Fourth District Court of Appeals for the State of Texas tendered
his resignation, effective January 1, 1997, to Texas Governor
George W. Bush. The practice in Texas had been that if an elected
state official other than a judge submitted a written resignation
during an election year, then, under § 201.023 of the Texas
1 Election Code,1 the submission triggered an election to fill that
office, even though the official intended to occupy the position
until after the election. The parties dispute whether such a
practice ever existed for state judicial positions.
Governor Bush, however, determined that his acceptance of
Justice Hardberger's resignation created an immediate vacancy on
the Fourth District Court of Appeals to which he appointed Karen
Angelini to serve on an interim basis until the November elections.
Justice Hardberger refused to step down, and the State of Texas
sought an emergency writ of quo warranto in the Texas Supreme Court
barring Justice Hardberger from interfering with Angelini's
appointment.
On August 30, 1996, the Texas Supreme Court handed down its
decision in State ex rel. Angelini v. Hardberger, 932 S.W.2d 489
(Tex.1996). The court held, first, that because the Texas
Constitution prescribes the term judges hold office, no vacancy
could occur for election or constitutional purposes until Justice
Hardberger vacated his office on January 1, 1997. Second, the
court held that any interpretation of § 201.023 that permits an
incumbent judge to trigger an election to fill his vacancy by
tendering his resignation prior to a general election while holding
office until after the election unlawfully abridges the governor's
1 Tex. Elec.Code § 201.023 (West 1986 & Supp.1997) provides:
If an officer submits a resignation, whether to be effective immediately or at a future date, a vacancy occurs on the date the resignation is accepted by the appropriate authority or on the eighth day after its receipt by the authority, whichever is earlier.
2 appointment power under Article V, § 28 of the Texas Constitution.2
Hardberger, 932 S.W.2d at 495. As a result, although both the
Democratic and Republican parties had nominated candidates to run
for Hardberger's position on November 5, 1996, no election was
held, and Angelini was appointed to the position shortly after
Hardberger's departure. The next succeeding general election is in
November 1998.
LULAC filed this action to require the "new rules" in Texas's
election laws announced in Hardberger to be precleared pursuant to
§ 5 of the Voting Rights Act, 42 U.S.C. § 1973c, before they are
implemented. The district court, without convening a three-judge
court, ruled on the state's motion to dismiss, concluded that no
election change had occurred since the constitutional provision
interpreted by the Texas Supreme Court pre-dated the applicability
of § 5 to Texas, and dismissed appellants claims pursuant to
Fed.R.Civ.P. 12(b)(6). This appeal ensued.
II.
Generally, actions by private individuals seeking declaratory
and injunctive relief against violations of § 5 must be referred to
a three-judge court for the determination of whether the political
subdivision has adopted a change covered by § 5 without first
obtaining preclearance. Allen v. State Board of Elections, 393
2 Article V, § 28 provides in relevant part:
Vacancies in the office of judges of the Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals and the District Courts shall be filled by the Governor until the next succeeding general election.
3 U.S. 544, 554-63, 89 S.Ct. 817, 825-31, 22 L.Ed.2d 1 (1969);
Trinidad v. Koebig, 638 F.2d 846 (5th Cir.1981); Sumter County
Democratic Executive Comm. v. Dearman, 514 F.2d 1168, 1170 (5th
Cir.1975). However, where § 5 claims are "wholly insubstantial"
and completely without merit, such as where the claims are
frivolous, essentially fictitious, or determined by prior case law,
a single judge may dismiss the claims without convening a
three-judge court. See, e.g., United States v. Saint Landry Parish
Sch. Bd., 601 F.2d 859, 863 (5th Cir.1979); Broussard v. Perez,
572 F.2d 1113, 1118 (5th Cir.), cert. denied, 439 U.S. 1002, 99
S.Ct. 610, 58 L.Ed.2d 677 (1978); Carr v. Edwards, 1994 WL 419856
(E.D.La. Aug. 8, 1994).
Texas advances two arguments for why LULAC's claim was
properly dismissed as wholly insubstantial. First, it argues that
state court interpretations of previously precleared state law are
not subject to § 5 preclearance. Second, it argues that the Texas
Supreme Court's ruling in Hardberger does not effect a change in
Texas' practice or procedure for filling a vacancy left by a judge
who resigns prior to the expiration of his elected term.
A.
The district court rejected Texas's contention that state
court interpretations of precleared state law are not subject to §
5 preclearance, concluding that the Supreme Court's decision in
Hathorn v. Lovorn, 457 U.S. 255, 102 S.Ct. 2421, 72 L.Ed.2d 824
(1982), overruled a well-developed line of cases holding that state
court constructions of precleared state law generally do not invoke
4 § 5's preclearance requirement. See, e.g., Gangemi v. Sclafani,
506 F.2d 570, 572 (2nd Cir.1974); Williams v. Sclafani, 444
F.Supp.
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REVISED United States Court of Appeals,
Fifth Circuit.
No. 96-50714.
LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) OF TEXAS, Plaintiff-Appellant,
v.
STATE OF TEXAS, Defendant-Appellee.
May 27, 1997.
Appeal from the United States District Court for the Western District of Texas.
Before DAVIS, STEWART and PARKER, Circuit Judges.
PER CURIAM:
The sole issue on appeal is whether the single-judge district
court erred in determining that LULAC's claim under § 5 of the
Voting Rights Act of 1965, 42 U.S.C. § 1973c (1994), is "wholly
insubstantial" and, thus, undeserving of the attention of a
three-judge court. Because we conclude that neither the legal nor
the factual aspects of LULAC's claim is wholly insubstantial, we reverse and remand for the convening of a three-judge court.
I.
On June 20, 1996, Associate Justice Phil Hardberger of the
Fourth District Court of Appeals for the State of Texas tendered
his resignation, effective January 1, 1997, to Texas Governor
George W. Bush. The practice in Texas had been that if an elected
state official other than a judge submitted a written resignation
during an election year, then, under § 201.023 of the Texas
1 Election Code,1 the submission triggered an election to fill that
office, even though the official intended to occupy the position
until after the election. The parties dispute whether such a
practice ever existed for state judicial positions.
Governor Bush, however, determined that his acceptance of
Justice Hardberger's resignation created an immediate vacancy on
the Fourth District Court of Appeals to which he appointed Karen
Angelini to serve on an interim basis until the November elections.
Justice Hardberger refused to step down, and the State of Texas
sought an emergency writ of quo warranto in the Texas Supreme Court
barring Justice Hardberger from interfering with Angelini's
appointment.
On August 30, 1996, the Texas Supreme Court handed down its
decision in State ex rel. Angelini v. Hardberger, 932 S.W.2d 489
(Tex.1996). The court held, first, that because the Texas
Constitution prescribes the term judges hold office, no vacancy
could occur for election or constitutional purposes until Justice
Hardberger vacated his office on January 1, 1997. Second, the
court held that any interpretation of § 201.023 that permits an
incumbent judge to trigger an election to fill his vacancy by
tendering his resignation prior to a general election while holding
office until after the election unlawfully abridges the governor's
1 Tex. Elec.Code § 201.023 (West 1986 & Supp.1997) provides:
If an officer submits a resignation, whether to be effective immediately or at a future date, a vacancy occurs on the date the resignation is accepted by the appropriate authority or on the eighth day after its receipt by the authority, whichever is earlier.
2 appointment power under Article V, § 28 of the Texas Constitution.2
Hardberger, 932 S.W.2d at 495. As a result, although both the
Democratic and Republican parties had nominated candidates to run
for Hardberger's position on November 5, 1996, no election was
held, and Angelini was appointed to the position shortly after
Hardberger's departure. The next succeeding general election is in
November 1998.
LULAC filed this action to require the "new rules" in Texas's
election laws announced in Hardberger to be precleared pursuant to
§ 5 of the Voting Rights Act, 42 U.S.C. § 1973c, before they are
implemented. The district court, without convening a three-judge
court, ruled on the state's motion to dismiss, concluded that no
election change had occurred since the constitutional provision
interpreted by the Texas Supreme Court pre-dated the applicability
of § 5 to Texas, and dismissed appellants claims pursuant to
Fed.R.Civ.P. 12(b)(6). This appeal ensued.
II.
Generally, actions by private individuals seeking declaratory
and injunctive relief against violations of § 5 must be referred to
a three-judge court for the determination of whether the political
subdivision has adopted a change covered by § 5 without first
obtaining preclearance. Allen v. State Board of Elections, 393
2 Article V, § 28 provides in relevant part:
Vacancies in the office of judges of the Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals and the District Courts shall be filled by the Governor until the next succeeding general election.
3 U.S. 544, 554-63, 89 S.Ct. 817, 825-31, 22 L.Ed.2d 1 (1969);
Trinidad v. Koebig, 638 F.2d 846 (5th Cir.1981); Sumter County
Democratic Executive Comm. v. Dearman, 514 F.2d 1168, 1170 (5th
Cir.1975). However, where § 5 claims are "wholly insubstantial"
and completely without merit, such as where the claims are
frivolous, essentially fictitious, or determined by prior case law,
a single judge may dismiss the claims without convening a
three-judge court. See, e.g., United States v. Saint Landry Parish
Sch. Bd., 601 F.2d 859, 863 (5th Cir.1979); Broussard v. Perez,
572 F.2d 1113, 1118 (5th Cir.), cert. denied, 439 U.S. 1002, 99
S.Ct. 610, 58 L.Ed.2d 677 (1978); Carr v. Edwards, 1994 WL 419856
(E.D.La. Aug. 8, 1994).
Texas advances two arguments for why LULAC's claim was
properly dismissed as wholly insubstantial. First, it argues that
state court interpretations of previously precleared state law are
not subject to § 5 preclearance. Second, it argues that the Texas
Supreme Court's ruling in Hardberger does not effect a change in
Texas' practice or procedure for filling a vacancy left by a judge
who resigns prior to the expiration of his elected term.
A.
The district court rejected Texas's contention that state
court interpretations of precleared state law are not subject to §
5 preclearance, concluding that the Supreme Court's decision in
Hathorn v. Lovorn, 457 U.S. 255, 102 S.Ct. 2421, 72 L.Ed.2d 824
(1982), overruled a well-developed line of cases holding that state
court constructions of precleared state law generally do not invoke
4 § 5's preclearance requirement. See, e.g., Gangemi v. Sclafani,
506 F.2d 570, 572 (2nd Cir.1974); Williams v. Sclafani, 444
F.Supp. 895, 904 (S.D.N.Y.1977); Webber v. White, 422 F.Supp. 416,
427 (N.D.Tex.1976); Eccles v. Gargiulo, 497 F.Supp. 419, 422
(E.D.N.Y.1980). While arguably the Supreme Court's holding in
Hathorn need not be read so broadly, one three-judge district court
appears to have reached the same conclusion as the district court,
see Gresham v. Harris, 695 F.Supp. 1179, 1183-84 (N.D.Ga.1988),
aff'd sub nom., Poole v. Gresham, 495 U.S. 954, 110 S.Ct. 2556, 109
L.Ed.2d 739 (1990). Under the circumstances, we cannot conclude
that from a legal standpoint LULAC's claim is "wholly
insubstantial." See Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct.
854, 859, 35 L.Ed.2d 36 (1973) ("[C]laims are constitutionally
insubstantial only if the prior decisions inescapably render the
claims frivolous; previous decisions that merely render claims of
doubtful or questionable merit do not render them
insubstantial...."); Armour v. Ohio, 925 F.2d 987, 989 (6th
Cir.1991) ("A claim is unsubstantiated only when it is obviously
without merit or clearly determined by previous case law.").
B.
The same conclusion applies to the factual basis for LULAC's
claim. The district court concluded that no change had occurred in
Texas's election practices because the Texas Supreme Court's
decision in Hardberger, 932 S.W.2d 489 (Tex.1996), merely confirmed
what had always been true about the governor's constitutional
appointment powers. However, in determining whether a voting
5 change has occurred, a court must look to the state's actual
practices, not to what those practices should have been under a
correct application of the state's voting law. See Perkins v.
Matthews, 400 U.S. 379, 394, 91 S.Ct. 431, 439-40, 27 L.Ed.2d 476
(1971); City of Lockhart v. United States, 460 U.S. 125, 132-33,
103 S.Ct. 998, 1002-04, 74 L.Ed.2d 863 (1983).
It is undisputed that an election was held in almost identical
circumstances in 1988 after the Texas Supreme Court handed down its
decision in Texas Democratic Executive Comm. v. Rains, 756 S.W.2d
306 (Tex.1988). In that case, the court held that Tex. Elec.Code
§ 201.023 prevented the governor from refusing to accept the
resignation of a judge in Justice Hardberger's position, thus
triggering an election for the position. Rains also makes it clear
that the resigning judge remained in office until after the
election. It is also undisputed that at the time the Texas Supreme
Court decided Hardberger, the major political parties already had
selected candidates for the ballot to fill Justice Hardberger's
vacancy and the state was prepared to elect Justice Hardberger's
replacement. Under these circumstances, LULAC's claim as to the
existence of the practice is not wholly insubstantial.
III.
Because we conclude that neither the legal nor the factual
basis for LULAC's § 5 claim is "wholly insubstantial," we reverse
the district court's order dismissing LULAC's claim and remand for
the convening of a three-judge court pursuant to 42 U.S.C. § 1973c.
REVERSED and REMANDED.
6 7