353 F.2d 650
UNITED STATES of America, Appellant,
v.
A. L. RAMSEY, Circuit Court Cleark and Registrar, Clarke
County, Mississippi, and State of Mississippi, Appellees.
Ex parte: In the Matter of the UNITED STATES of America, Petitioner.
No. 22315.
United States Court of Appeals Fifth Circuit.
Nov. 12, 1965.
Harold H. Greene, Gerald P. Choppin, Attys., John Doar, Asst. Atty. Gen., Charles Nenan, Atty., Dept. of Justice, Washington, D.C., Robert E. Hauberg, U.S. Atty., David Rubin, Atty., Dept. of Justice, Washington, D.C., for appellant.
William A. Allain, Asst. Atty. Gen., State of Mississippi, Jackson, Miss., Tally D. Riddell, Quitman, Miss., Joe T. Patterson, Atty. Gen. of State of Mississippi, Peter M. Stockett, Jr., Sp. Asst. Atty. Gen. of State of Mississippi, Jackson, Miss., for appellees.
Before HUTCHESON and BROWN, Circuit Judges, and MORGAN, District judge.
JOHN R. BROWN, Circuit Judge.
The second appeal (plus the parallel proceeding for mandamus) in a case filed by the Government in 1961 presents for determination the question whether the District Court, having found flagrant discrimination against Negroes in voter registration in Clarke County, Mississippi, has accorded effective, timely adequate relief. We hold in the negative and reverse with directions.
As framed in the outset of this appeal, the Government's criticism was twofold: the trial Court's failure (1) specifically to find pattern and practice, 42 U.S.C.A. 1971(e), and (2) to apply the freezing principle so that Negroes currently applying would be tested, not by the newer and more exacting standards presumably being applied uniformly without distinction as to both whites and Negroes alike, but by the more lax standards long accorded to whites.
Now time has wreaked change. First, Ramsey has been succeeded as Registrar by Mrs Evie Harris. Second, and more important, Congress has twice since 1961 markedly changed the law by the enactment of the Civil Rights Act of 1964, and, more significantly-- and more recently, the Voting Rights Act of 1965. The result is that the Government, insisting quite properly that we must now apply the new law, now urges that in spelling out standards the decree must speak in terms of the 1965 Act. Time has also been working in Mississippi, and working for good. By constitutional amendments approved overwhelmingly by her people and by legislation, Mississippi has adopted a simplified procedure and standards, and now the only prerequisites for registration are (a) ability to read and write, (b) citizenship, age and residence, and (c) absence of felony conviction, thus eliminating the good-moral-character, the duties-of-citizenship, and the read-and-interpret requirements which have been the engine of discrimination for so long.10
Because of these intervening developments, it is helpful to summarize the background, much of which appears in our prior decision. United States v. Ramsey, 5 Cir., 1964, 331 F.2d 824, modified on rehearing, 331 F.2d at 838.
The suit, filed July 6, 1961, was brought by the Government under 42 U.S.C.A. 1971(c), asserting long continued discriminatory practices against Negro voters. After a trial on December 26-28, 1962, the District Court on February 5, 1963, entered its judgment. The Court found that Negro citizens had been discriminated against by the Registrar, but that this discrimination did not form a pattern or practice within the meaning of 1971(e). The Court enjoined the Registrar from engaging in any act or practice which would deprive any citizen in Clarke County of the right to vote on account of his race or color. But the Court declined to grant the freezing relief. Rather it specifically ordered the Registrar to apply to all applicants (white or Negro) the tests currently required by the statutes of the State of Mississippi. On the Government's appeal, this Court on February 20, 1964, 331 F.2d 824, at 829, modified the judgment by (1) enjoining not only the present Registrar (Ramsey), but also his successors in office and (2) by directing the Registrar to file monthly reports with the Clerk of the District Court as to applications received, granted and rejected.
Thereafter the Government sought a rehearing on this Court's holding that the trial Court 'had discretion to omit action' as to the pattern or practice and on the refusal of the trial Court to grant freezing relief. On rehearing this Court found the finding of no pattern or practice clearly erroneous, but in 'the light of that holding' it concluded 'that the question of further relief should be first ruled on by the District Court' and accordingly denied rehearing as to the freeze order. 331 F.2d at 838.
This sets the stage for the subsequent in the trial Court now under review. Since no action was taken by the trial Court on receipt of our mandate in May 1964, the Government in August moved for an order to implement our mandate. On December 1, 1964, the trial Court deleted its 'no pattern or practice' finding, but declined to find it affirmatively and declined to grant freezing relief.
To review these actions, the Government appealed and to the extent the matters were not reviewable by appeal, subsequently sought and obtained leave to institute the mandamus proceedings. We think all is reviewable by appeal. 28 U.S.C.A. 1292(1). Thus the mandamus is superfluous, and such proceeding is dismissed.
Coming to the merits, little now need be said in view of the detailed and decisive treatment we have given these issues in United States v. Ward (Louisiana), 5 Cir., 1965, 349 F.2d 795, and the cases there discussed.
Consequently the Court was clearly in error in its handling of pattern and practice. It was not sufficient merely to delete the finding of no pattern and practice. The trial Court had the duty to make the affirmative finding so clearly called for by the facts of this record and to do so in words which to layman, lawyer, judge, voter applicant, and registrar alike set in train the machinery of 1971(e). 349 F.2d at 801, 805.
For all of the reasons outlined in depth in Ward (Louisiana), we likewise have the same firm conclusions as to freezing relief. In so concluding we necessarily reject the Registrars' contention that the District Judge merely applied the law of the case as declared in our prior opinion and that the same principle, Lincoln Nat'l Life Ins. Co. v. Roosth, 5 Cir. (en banc), 1962, 306 F.2d 110, 113-114, makes it inappropriate for us to scrutinize his holding a second time. Of course this would be so had the rehearing not been granted. The Court initially approved the trial Court's refusal to invoke the freezing principle. But this, it is quite evident, was based upon this Court's acceptance of the discretionary power of the trial Judge to find no pattern or practice. The whole case was changed when, on rehearing, we declared that finding to be clearly erroneous so as to compel-- what we now order-- the affirmative finding of a pattern and practice. It was in 'the light of that holding' (see note 12, supra) that we concluded that the District Court should first pass upon the question of further relief including a freeze order. Indeed, a finding of pattern or practice is not only relevant on the question of relief. It may impose a statutory standard on the extent-- both as to time and persons covered-- of the judicial freeze order required. United States v. Ward (Louisiana), 5 Cir., 1965, 349 F.2d 795, 804.
The facts of this record leave no doubt of the imperative need of a freezing order. Approximately 75% Of the white persons registered as of the trial had been registered prior to March 1955 during the time Registrar Ramsey had no requirement or procedures whatever and merely required white registrants to sign the book. His subsequent requirements covering the remaining 25% Were not significantly more severe. Many were examined only in a perfunctory way, given assistance where needed in filling out the form and answering the more difficult constitutional interpretation test, and the like. The unfortunate fact is that the overwhelming number of white persons registered were not required to comply with any of the paper requirements of the Mississippi law.
But Negroes have not fared so well. Indeed, for many years they did not fare at all. The effect of this racial discrimination cannot be eradicated merely by correcting the future through uniform nondiscriminatory tests applied to Negro and white alike. To alleviate this consequence, the case compelled an order extending to all now age-and-residence-eligible not suffering from statutory disqualifications (conviction of felony, etc.) the same lax standards previously applied to whites. Considering the history of this discrimination and the population of the county, the freeze period could not properly have been for less than the two years fixed in Lynd (appeal), 349 F.2d at 788, and in Ward (Louisiana), 349 F.2d at 802, 803-804.
The trial Court was also in error in the monthly reporting provision. See notes 2 and 13, supra. Our mandate called for a monthly report as to all applicants, white and Negro, rejected and accepted. It did so for the perfectly natural reason that discrimination is disparate treatment without an adequate basis, and it is frequently the comparison of applications accepted and those denied which starkly reveals the unlawful activity. See United States v. Lynd (contempt), 5 Cir., 1965, 349 F.2d 790, 792 n. 4.
The result is that up to August 6, 1965, we would have reversed with directions to enter a Ward (Miss.), Lynd, or Ward (Louisiana) type of order. What does the 1965 Voting Rights Act do to the case and to the relief required? For reasons we briefly indicate, we think the relief now required is markedly different.
On August 7, 1965, the United States Attorney General and the Director of Census made and published (30 Fed.Reg. 9897) the determinations as to Mississippi under 4(b) of the 1965 Act. The effect of this is to eliminate any state-imposed voter qualification 'test or device,' 4(a), including of significance here those requiring demonstration of '(1) * * * ability to read, write, understand, or interpret any matter, (2) * * * educational achievement or * * * knowledge of any particular subject, * * *.' 4(c). Likewise, until declaratory judgment or administrative consent is first obtained, 5 of the Act restricts Mississippi to the use of voter qualifications, practices, or procedures in force and effect on November 1, 1964.
' The result,' as we pointed out in Ward (Louisiana), 'is that where under our developing 'freeze' principles, we required that the less exacting practices followed' in the past '* * * in the registration of white applicants be extended to all for a period of two years, the 1965 Act extends the period initially to five years and forbids outright for such time every defined voter qualification 'test or device' whether previously applied to whites or not.' 353 F.2d at 331 (rehearing). (21 day of Oct., 1965) There is thus an outright conflict between Mississippi law and the outstanding decree of the trial Court in this very case (see note 11, supra), on the one hand, and the requirement of the 1965 Federal Act on the other. At this stage we must assume the validity of the 1965 Act and its supremacy under the Supremacy Clause. Under 14(b) of the Act this Court lacks the power at this time to determine the constitutional validity of the Act the more stringent Mississippi requirements and, indeed, the Registrar expressly disclaimed any purpose to here attack its validity. We are thus not even faced with the narrower question whether the restriction of 14(b) is valid. In view of this, we see no escape from the application of the plain, literal requirements of the 1965 Act. It is not for us to determine, certainly not at this stage or in this proceeding, whether the wisdom or unwisdom of a fairly administered literacy test gives constitutional protection to Mississippi's legislative determination. At the same time, we think the position of the Registrar is eminently reasonable that our opinion directing the entry of any specific decree reflect on its face that this Court is not undertaking to judge or prejudge any of these matters of validity, constitutionality, or interpretation of the Act. Thus, for example, the Registrar urges that the statutory period of five years-- which offhand appears to be mandatory-- may be subject to reduction or elimination under certain undefined conditions. We agree these matters should be left open. We therefore repeat what we said in Ward (Louisiana) on rehearing. 'If by the procedures specified in 14(b), or otherwise, the law is determined to be invalid or the provisions of the Act applied here are otherwise construed, the decree prescribed herein should be suitably modified. The same is true as to any declaratory judgment determinations by the District Court for the District of Columbia that the use of any such test or device in voter qualification to achieve discrimination has ceased. See, e.g., 4(a), 5.' 352 F.2d at 331.
Under these circumstances we think it clearly required that an order as set forth in the appendix be entered by the District Court. Upon our having made the judicial choice that the 1965 Act is thus far controlling, the form and content of the Government's proposed order is substantially acceptable to the Registrar. The point of difference is one of substance, the Registrar insisting that in lieu of the 1965 Federal standards articulated in Paragraph IV, these should be the currently effective Mississippi standards.
Reaching this conclusion, we necessarily overrule the motion to dismiss the appeal filed by the Registrar. When it is all boiled down, it comes to a plea that an injunction is not needed because the Registrar is now in compliance with the law. Without in the least implying any want of good faith, either personally or officially, in the part of this lady who obviously has many official responsibilities and duties to perform with limited staff, budget and physical facilities, we do not think dismissal is appropriate. Although her affidavits show that since the effective dates she has been applying the new, more lax, Mississippi standards (see note 8, supra), and more recently she is complying with the 1965 Federal Act apparently with unquestioned faithfulness even to the point of registering a great number of demonstrated illiterates, several factors are yet significant. At the outset one is that what she has done has been done under the compunction of the statutes,State and Federal, rather than the Court decree. It is the decree, not her performance under it, which the Government has long criticized. In a very real sense the appeal tests, not the correctness of her actions, but rather the asserted errors of the trial Court. Equally important there remains this conflict between Mississippi and Federal law. The rights of Negro voters, so long postponed in this County and which have remained substantially unsatisfied because of the restrictive relief now declared to have been inadequate in this 1961-1965 effort to obtain judicial vindication, ought not at this stage to rest upon the unpredictable continuance of Mrs. Harris in this trying office or upon her or her successors' continued willingness as an official of the State of Mississippi to take action under the 1965 Federal Act contrary to the express provisions of Mississippi law.
Nor do we think that dismissal of the appeal or incorporation of Mississippi law as the controlling standard in the decree is required here because of the action of the three-Judge District Court in its recent order in the Holmes County case. That Court, applying itself a modified freeze for all rejected applicants back to January 1, 1963, promulgates the standard requiring registration of those 'now qualified under the constitution, statutes and laws of the State of Mississippi.'
We do not undertake to determine whether the action of that Court is correct or incorrect. Of course each of the two Courts gives careful consideration to the action of the other but under the hierarchical structure, a three-Judge District Court within a Circuit and the Court of Appeals for that Circuit are independent, each being subject to review by the Supreme Court only, and each under an obligation independently to determine the case. See, e.g., 28 U.S.C.A. 1253, 1254, 2284. These considerations are especially pertinent here for we are not advised of the contentions or reasons asserted by the parties or reflected by that record which would pertain to the choice by the Court of the current Mississippi, rather than 1965 Federal, standards. All we have been furnished is a copy of the Court's formal order.
The result is that the case must be reversed with directions to enter the annexed decree and for other consistent action.
Reversed and remaned.
APPENDIX
FINAL DECREE
i. This Court finds that the original defendant, A. L. Ramsey, has engaged in acts and practices which have deprived Negro citizens of Clarke County, Mississippi, of their rights secured by 42 U.S.C. 1971(a), to register to vote without distinction by reason of race, and that such deprivation has been pursuant to a pattern or practice of discrimination against Negro citizens in the registration for voting process in Clarke County, Mississippi. The Court also takes notice of the fact that the United States Attorney General and the Director of the Census have made and published on August 7, 1965 (30 Fed.Reg. 9897), the determinations which invoke the provisions of Section 4 of the Voting Rights Act of 1965, and related provisions (Pub.L.No. 89-110, 89th Cong. 1st Sess., 79 Stat. 437, 42 U.S.C.A. 1973 et seq.).
II. It is ordered, adjudged and decreed by the Court that Mrs. Evie Harris, Registrar of Voters of Clarke County, Mississippi, her deputies, employees and her successors in office and all persons acting in concert or participation with them be, and each hereby is enjoined from engaging in any act or practice which involves or results in distinctions based on race or color between Negro citizens and other citizens in the registration for voting process in Clarke County, Mississippi.
III. It is further ordered, adjudged, and decreed by the Court that Mrs. Evie Harris, Registrar of Voters of Clarke County, Mississippi, her agents, officers, employees and her successors in office and all persons acting in concert or participation with them be, and each hereby is enjoined, for a period of five years after the entry of any final judgment of any court of the United States determining that denials or abridgments of the right to vote on account of race or color through the use of any 'test or device' as defined in section 4(c) of the Voting Rights Act of 1965, P.L. 89-110, 79 Stat. 436, 437, 438-439, have occurred anywhere within the State of Mississippi, and in any event until the United States District Court for the District of Columbia has determined that no such test or device has been used during the five years preceding the filing of the action for the purpose of denying or abridging the right to vote on account of race or color, from (a) requiring any applicant for voter registration in Clarke County, as a precondition to such registration, to take or pass any test of literacy, knowledge, or understanding or to comply with any other test or device as defined in section 4(c) of the Voting Rights Act of 1965, supra, 79 Stat. 438-439, i.e., any requirement that he (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or the members of any other class, or (b) rejecting any applicant for voter registration in Clarke County for failure to comply with any such requirement.
IV. It is further ordered, adjudged, and decreed by the Court that for the period specified in paragraph III, except to the extend that the State of Mississippi has obtained a declaratory judgment under section 5 of the Voting Rights Act of 1965, supra, 79 Stat. 439, that a qualification, prerequisite, standard, practice or procedure enacted subsequent to November 1, 1964 does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or has submitted such qualification, prerequisite, standard, practice or procedure to the Attorney General of the United States and the Attorney General has not interposed an objection within sixty days after such submission, Mrs. Evie Harris, Registrar of Voters of Clarke County, Mississippi, her agents, employees, and her successors in office and all those acting in concert or participation with them are enjoined from determining the qualifications of citizens in Clarke County, Mississippi, in any manner or by any procedure different from or more stringent that the following:
(a) He is a citizen and is or will be 21 years of age or older at the time of the next election; (b) He, at the time of the next election, has or will have resided in the State two years and in the election district in which he intends to vote one year; (c) He is not disqualified by reason of conviction of a disqualifying crime, insanity or idiocy;
V. It is further ordered that Mrs. Evie Harris, her agents, employees, and successors in office, and all those acting in concert or participation with them, in conducting registration of voters in Clarke County, Mississippi, are enjoined and ordered to:
(a) Afford each applicant for registration an opportunity to apply and complete the application form whether either the registrar or deputy registrar is present. (b) Advise each applicant, when he or she applies, whether the applicant is accepted or rejected; if accepted, the applicant must be registered at that time; if rejected, the applicant must be informed of the reason of reasons for his rejection. (c) Receive and process each applicant as expenditiously as possible to the extent that the physical facilities of the registration office permit and take all reasonable steps to insure that, whenever possible, each applicant is processed on the day he appears for registration. The office of the registrar shall be open during the office hours observed by Mrs. Evie Harris in her capacity as the circuit clerk of Clarke County for registration.
VI. Mrs. Evie Harris, her deputies, agents, and successors in office shall, until further order of this Court, make the registration records of Clarke County, Mississippi, available to attorneys or agents of the United States at any and all reasonable times in the circuit clerk's office in Quitman for the purpose of inspection, copying, and photographing.
VII. Jurisdiction is retained of this cause for all purposes and especially for the purpose of issuing any and all additional orders as may become necessary or appropriate for the purposes of modifying and/or enforcing this order.
VIII. Costs in this Court are awarded to Plaintiff.