Perez v. Pasadena Independent School District , 165 F.3d 368 ( 1999 )

Revised February 5, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
Nos. 97-20345 & 97-20489
_____________________
ROSALINDA L PEREZ; DOLORES E GARCIA; MAGGIE RAMIREZ; ZINA
GONZALES; MARIA GONZALES; CELESTINO M PEREZ, JR; JENKY M
DIAZ; DAVID R SEGURA; RUDY N TREVINO; ROBERT MARTINEZ;
YVONNE RUTH; PASADENA CITIZENS FOR EQUITABLE REPRESENTATION,
Plaintiffs-Appellants,
v.
PASADENA INDEPENDENT SCHOOL DISTRICT; CARMEN OROSCO; DENNY
DELAFIELD; VICKIE MORGAN; BOB BLAIR; MARSHALL KENDRICKS;
HARVEY TURNER; JOHN ELAM,
Defendants-Appellees.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
January 29, 1999
Before KING, Chief Judge, and JONES, and SMITH, Circuit Judges.
KING, Chief Judge:
Plaintiffs-appellants, Hispanic residents of the Pasadena
Independent School District and an unincorporated association
consisting of individual plaintiffs-appellants, allege that the
at-large election system used by defendants-appellees, Pasadena
Independent School District and members of its board of trustees,
for choosing school trustees violates Section 2 of the Voting
Rights Act of 1965, 42 U.S.C. § 1973 (1994) (as amended). The
district court found no violation and entered judgment in favor
of defendants-appellees. We affirm.
I. FACTUAL & PROCEDURAL BACKGROUND1
Defendant-appellee Pasadena Independent School District (the
PISD) is a political subdivision of the State of Texas that
covers approximately eighty-five square miles in the southwestern
part of Harris County, Texas. The PISD includes the cities of
Pasadena and South Houston, portions of Houston, and
unincorporated areas. The 1990 census found that approximately
190,000 people live in the PISD and that sixty-two percent of the
total population are Anglo, thirty percent are Hispanic, and four
percent are African-American. During the 1991-1992 school year,
the PISD had approximately 38,671 students attending fifty-one
schools. Forty-nine percent of these students were Anglo, forty-
two percent were Hispanic, and five percent were African-
American.
The PISD is governed by the Pasadena School Board of
Trustees (the Board), which consists of seven members who are
elected at-large by voters residing in the PISD. Two or three
positions are filled each year; each trustee runs for a specific
1
The district court’s thorough and well-reasoned opinion
provides a comprehensive review of the facts and procedural
history. See Perez v. Pasadena Indep. Sch. Dist., 958 F. Supp.
1196, 1202-08 (S.D. Tex. 1997). We therefore summarize only
those facts necessary for the disposition of this appeal.
2
position on the Board and is elected by a plurality of the votes
cast for that position. The individual defendants-appellees were
the elected members of the Board in 1992. Only one member of the
Board is Hispanic.
Plaintiffs-appellants (plaintiffs), Hispanic residents of
the PISD and an unincorporated association consisting of
individual plaintiffs, filed this suit in the United States
District Court for the Southern District of Texas on November 19,
1992, alleging that the PISD’s at-large election system deprives
Hispanics of an equal opportunity to participate in the political
process in violation of Section 2 of the Voting Rights Act of
1965, 42 U.S.C. § 1973 (1994) (as amended),2 and the Fourteenth
2
Section 2 provides in relevant part:
(a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or applied
by any State or political subdivision in a manner which
results in a denial or abridgement of the right of any
citizen of the United States to vote on account of race or
color . . . .
(b) A violation of subsection (a) of this section is
established if, based on the totality of circumstances,
it is shown that the political processes leading to
nomination or election in the State or political
subdivision are not equally open to participation by
members of a class of citizens . . . in that its
members have less opportunity than other members of the
electorate to participate in the political process and
to elect representatives of their choice.
42 U.S.C. § 1973.
3
and Fifteenth Amendments.3 Plaintiffs claimed that Hispanic
participation in the Board elections is limited by the use of
staggered terms without single-shot voting, the large population
of the district, the comparatively small number of polling
places, the absence of minorities as election officials, and
economic disparities between the Anglo and minority communities.
Plaintiffs sought a declaratory judgment finding the existing at-
large election method unlawful and an injunction preventing any
further elections using the at-large method.
The parties presented evidence to the district court from
May 31, 1995 through June 8, 1995. The district court heard
additional argument and evidence of subsequent demographic
changes on February 10, 1997 and entered an opinion and judgment
in favor of defendants-appellees (defendants) on March 13, 1997.
The district court found that to prevail on their claim
under Section 2, plaintiffs must meet the three-part test set
forth in Thornburg v. Gingles, 478 U.S. 30 (1986):
[F]irst, “that [the minority group] is sufficiently large
and geographically compact to constitute a majority in a
single-member district”; second, “that it is politically
cohesive”; and third, “that the white majority votes
sufficiently as a bloc to enable it . . . usually to defeat
the minority’s preferred candidate.”
3
The district court dismissed plaintiffs’ Fourteenth and
Fifteenth Amendment claims after finding insufficient evidence of
intentional discrimination. See Perez, 958 F. Supp. at 1230.
Plaintiffs do not appeal the dismissal of these claims.
4
Growe v. Emison, 507 U.S. 25, 40 (1993) (quoting Gingles, 478
U.S. at 50-51). The district court stated that if plaintiffs
succeed in showing that the Gingles three-part threshold is
reached, plaintiffs must also show that under the “totality of
the circumstances” Hispanics do not possess the same
opportunities to participate in the political process enjoyed by
other voters, considering factors set forth in Zimmer v.
McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff’d sub
nom. East Carroll Parish Sch. Bd. v. Marshall, 424 U.S. 636
(1976), and the Senate Report of the Voting Rights Act Amendments
of 1982.4
4
The Zimmer factors are as follows: (1) the extent of any
history of official discrimination in the PISD that touched
Hispanics’ right to register, to vote, or otherwise participate
in the democratic process; (2) the extent to which voting in the
PISD is racially polarized; (3) the extent to which the PISD has
used unusually large election districts, majority vote
requirements, anti-single shot provisions, or other voting
practices that may enhance the opportunity for discrimination;
(4) whether Hispanics have been denied access to a candidate
slating process; (5) the extent to which Hispanics in the PISD
bear the effects of discrimination in areas such as education,
employment, and health, which hinder their ability to participate
effectively in the political process; (6) whether political
campaigns have been characterized by overt or subtle racial
appeals; and (7) the extent to which Hispanics have been elected
to public office in the PISD. See S. REP. NO. 97-417, at 28-29
(1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07 (citing
Zimmer, 485 F.2d at 1305). Two additional factors that may have
probative value in determining whether there is a violation of
the Voting Rights Act are (1) whether there is a significant lack
of responsiveness on the part of elected officials to the
particularized needs of Hispanics, and (2) whether the policy
underlying the PISD’s use of such a voting practice is tenuous.
See id. at 29; see also Brewer v. Ham, 876 F.2d 448, 451 n.4 (5th
Cir. 1989).
5
The district court found that plaintiffs failed to establish
the first element of the three-part Gingles test because they did
not show that it is possible to draw one or more districts in the
PISD with a majority Hispanic citizen voting-age population. The
district court considered several proposed plans which would have
seven single-member districts with at least one district
containing a Hispanic voting-age population exceeding fifty
percent. The district court found, and plaintiffs do not
contest, that approximately sixty percent of the Hispanic
population in the PISD are citizens, and therefore a proposed
district must have a Hispanic voting-age population exceeding
62.5 percent for the Hispanic citizen voting-age population to
exceed fifty percent.5
The district court rejected plaintiffs’ argument that they
only need establish that it is possible to create a single-member
district in which the majority of the voting-age population, not
the majority of the citizen voting-age population, is Hispanic.
Plaintiffs alternatively urged the district court to accept their
projections that at least two proposed districts would reach a
Hispanic citizen voting-age population exceeding fifty percent as
early as 1995. The district court rejected plaintiffs’
5
The proposed district with the largest Hispanic voting-age
population using 1990 census data had a 58.8 percent Hispanic
population and a 52.9 percent Hispanic voting-age population.
6
projections as unreliable and used 1990 census data in its
analysis.6
Although the district court found that plaintiffs failed to
meet the first Gingles requirement, the court exhaustively
considered the evidence presented, addressed the remaining two
Gingles requirements, and considered the “totality of
circumstances” using the Zimmer factors. The district court
found that Hispanics in the PISD voted cohesively and therefore
that plaintiffs had met the second Gingles requirement. The
district court also found that Anglo voters generally had not
voted for Hispanic candidates in PISD elections, but did not
decide if this was the result of racial polarization meeting the
third Gingles requirement. Finally, the district court evaluated
the totality of the circumstances and found that plaintiffs had
raised valid concerns that Hispanic citizens’ participation in
the Board elections was limited by voting barriers including a
small number of polling places, the absence of minority election
officials, and the operation of a slating committee.
Nonetheless, the court determined that because plaintiffs had not
6
Plaintiffs simply annualized the eighty percent growth
rate of the Hispanic population in the PISD between 1980 and 1990
and applied that rate to the 1990 population data. Plaintiffs do
not appeal the district court’s rejection of this method of
population projection, but argue instead that the district court
should have taken a “more flexible approach” to the first Gingles
factor by considering the total Hispanic population in the PISD,
high Hispanic voter-turnout in Pasadena in 1995, and other “non-
census” data.
7
met the “necessary precondition” of proving that it is possible
to create a single-member district in which the majority of
voting-age citizens is Hispanic, it “must find in favor of the
defendants.” Perez v. Pasadena Indep. Sch. Dist., 958 F. Supp.
1196, 1230 (S.D. Tex. 1997). Plaintiffs appeal.
II. DISCUSSION
Plaintiffs argue that the district court erred as a matter
of law in entering judgment in favor of defendants because it
created a “bright-line” rule that plaintiffs must demonstrate
that a majority of the citizen voting-age population in a
proposed single-member district is Hispanic. Plaintiffs further
contend that the district court erred in finding that the
majority of the citizen voting-age population in the proposed
districts is not Hispanic because plaintiffs demonstrated that
the districts contain a growing Hispanic population and have a
demographic composition similar to that of districts that have
elected Hispanic candidates. Finally, plaintiffs argue that the
district court erroneously taxed them for defendants’ costs.
A. Standard of Review
We review de novo the legal standards a court applies to
determine whether Section 2 has been violated. See Gingles, 478
U.S. at 79. We review the district court’s findings on the
Gingles threshold requirements and its ultimate findings of vote
dilution, however, for clear error. See id.; League of United
Latin Am. Citizens #4552 (LULAC) v. Roscoe Indep. Sch. Dist., 123
8
F.3d 843, 847 (5th Cir. 1997); Overton v. City of Austin, 871
F.2d 529, 532-33 (5th Cir. 1989) (“Reliance upon . . . the
Court’s voter dilution threshold analysis . . . [is] a fact-
bound, intensely local inquiry highly dependent upon the district
court’s conclusions. As such, the clearly erroneous test applies
to the district court’s findings.”). The application of the
clearly-erroneous standard to findings on the Gingles threshold
requirements thus “preserves the benefit of the trial court’s
particular familiarity with the indigenous political reality
without endangering the rule of law.” Gingles, 479 U.S. at 79.
B. Citizenship in the First Gingles Requirement
The Supreme Court has determined that the “right” question
in vote dilution claims under Section 2 is whether “as a result
of the challenged practice or structure plaintiffs do not have an
equal opportunity to participate in the political processes and
to elect candidates of their choice.” Gingles, 478 U.S. at 44
(quoting S. REP. NO. 97-417, at 28 (1982)). As a matter of law,
the use of at-large voting can impede the ability of minority
voters to elect representatives of their choice only if the
plaintiffs demonstrate that the group meets the three Gingles
requirements. See Growe, 507 U.S. at 40; Gingles, 478 U.S. at
50-51; Campos v. City of Houston, 113 F.3d 544, 547 (5th Cir.
1997) (“Failure to establish any one of these threshold
requirements is fatal.”).
9
The first Gingles threshold requires that plaintiffs
demonstrate that Hispanics in the PISD are “sufficiently large
and geographically compact to constitute a majority in a single-
member district.” Gingles, 478 U.S. at 50. Plaintiffs argue
that they have met this requirement because they proposed
districts containing an Hispanic voting-age population exceeding
fifty percent. We have unequivocally held, however, that courts
“must consider the citizen voting-age population of the group
challenging the electoral practice when determining whether the
minority group is sufficiently large and geographically compact
to constitute a majority.” Campos, 113 F.3d at 548 (emphasis
added). As we reasoned in Campos, such a result is required by
the plain language of Section 2. See id.; see also Barnett v.
City of Chicago, 141 F.3d 699, 704 (7th Cir.) (“We think that
citizen voting-age population is the basis for determining
equality of voting power that best comports with the policy of
[Section 2].”), cert. denied, 118 S. Ct. 2372 (1998). The
district court therefore correctly required that plaintiffs
demonstrate that Hispanics would represent a majority of voting-
age citizens in a proposed district.
C. Relevant Evidence in the First Gingles Requirement
Plaintiffs argue that courts should be “more flexible” in
evaluating the first Gingles requirement and that it is possible
to show that minorities have the ability to elect candidates of
their choice even if they comprise less than a majority of voting
10
age citizens in a given district. In making this argument,
plaintiffs rely on our decision in Westwego Citizens for Better
Government v. City of Westwego, 906 F.2d 1042, 1046 (5th Cir.
1990) (per curiam), in which we recognized that “[m]inority
voting-age population data, minority voter registration data and
evidence of success by minority preferred candidates is relevant
to the first Gingles factor.” Plaintiffs assert that the
district court erred in finding that Hispanics would not have the
ability to elect a preferred candidate in the proposed districts
because Hispanics represent a growing percentage of the total
population and Hispanic candidates have succeeded in similar
districts.
As we held in Westwego, however, evidence relating to
elections in similar districts and the total population in a
proposed district is relevant only in determining whether a
majority of the voting-age population in the proposed district is
Hispanic. See id. at 1045-47. “The appropriate method of
establishing the first Gingles factor is a ‘matter of fact’ which
the plaintiff must prove, but there is no ‘uniform method.’” Id.
at 1046-47 (quoting Brewer, 876 F.2d at 452). While such
evidence may inform the analysis as to whether a minority group
comprises a majority of the voting-age citizens in a proposed
district and therefore reaches the threshold requirement,
evidence that the group may succeed in electing preferred
11
candidates cannot remedy its failure to meet the Gingles
threshold.
The district court considered plaintiffs’ evidence regarding
elections in similar districts and the projected growth of the
Hispanic population, but the court found plaintiffs’ projections
unreliable. Furthermore, the court noted that the percentage of
Hispanics voting in the PISD and in elections in similar
districts has remained essentially unchanged since 1990 and that
the rate of growth in Hispanic voter registration has increased
at a slower rate than plaintiffs’ Hispanic citizen growth
projections. Faced with what it described as a “Hobson’s choice
between two unsatisfactory alternatives,” the district court
properly weighed the evidence and adopted the 1990 census data as
the most reliable, and we find no clear error in its decision.
Perez, 958 F. Supp. at 1212-13. We therefore affirm the district
court’s entry of judgment for defendants on the Section 2 claim.
D. Costs
Following the entry of judgment in its favor, defendants
filed a bill of costs with the district court on March 25, 1997.
Defendants requested $162,745.17 in costs, including fees for
court reporting, witnesses, expert witnesses, mediation, copies,
and other related expenses under 28 U.S.C. § 1920 (1994).7 The
7
28 U.S.C. § 1920 provides in relevant part:
A judge or clerk of any court of the United States may tax
as costs the following:
12
district court entered an order on May 8, 1997 awarding
$13,925.43 as costs for court reporting fees for depositions and
for the cost of copying defendants’ trial notebook, and
plaintiffs timely appeal.
Plaintiffs argue that the district court erred in awarding
defendants expenses for duplicating their trial notebook because
defendants failed to provide receipts or obtain authorization
from the district court for its exhibits. See Zapata Gulf Marine
Corp. v. Puerto Rico Maritime Shipping Auth., 133 F.R.D. 481, 484
(E.D. La. 1990) (disallowing “essentially undocumented” claim for
copies of papers). Plaintiffs also argue that the district court
erred in awarding deposition costs because the depositions
included questions on an issue that plaintiffs did not challenge
and the depositions were not significantly used at trial.
Finally, plaintiffs assert that the award of costs will
discourage future civil rights lawsuits.8
. . .
(2) Fees of the court reporter for all or any part
of the stenographic transcript necessarily
obtained for use in the case;
. . .
(4) Fees for exemplification and copies of papers
necessarily obtained for use in the case.
Id. Under Federal Rule of Civil Procedure 54(d)(1), “[e]xcept
when express provision therefor is made either in a statute of
the United States or in these rules, costs other than attorneys’
fees shall be allowed as of course to the prevailing party unless
the court otherwise directs.”
8
Plaintiffs also argue that the depositions were redundant
and that the award was inequitable because plaintiffs lost on
13
We review the district court’s award of costs to a
prevailing party for abuse of discretion. See LULAC, 123 F.3d at
848-49; Allen v. United States Steel Corp., 665 F.2d 689, 697
(5th Cir. Unit B 1982) (“The district court has great latitude in
determining whether an award of deposition costs is warranted.”).
Factual findings made by the district court are reviewed for
clear error. See Cypress-Fairbanks Indep. Sch. Dist. v. Michael
F., 118 F.3d 245, 256 (5th Cir. 1997), cert. denied, 118 S. Ct.
690 (1998).
We have reviewed the record and we find no abuse of
discretion in the district court’s award of costs. The district
court found that defendants listed the trial exhibits in the
pretrial order and provided the court a copy of their trial
notebooks. See Louisiana Power & Light Co. v. Kellstrom, 50 F.3d
319, 335 (5th Cir. 1995) (requiring pretrial approval of exhibits
for costs to be taxed). Furthermore, plaintiffs neither
challenge the necessity of the copies nor provide any support for
their assertion that the district court abused its discretion by
failing to require that defendants produce receipts. See Duke v.
Uniroyal, Inc., 743 F. Supp. 1218, 1227 (E.D.N.C. 1990) (“It is
not necessary or desirable for federal courts to review receipts
for every five dollar expenditure. Judges, being former
only one issue and the public has benefitted from subsequent
changes in PISD elections. Plaintiffs did not raise these
arguments before the district court, however, and we will not
consider them in this appeal.
14
practicing attorneys, are quite capable of determining the
reasonableness of expenses incurred during litigation.”), aff’d
in relevant part, 928 F.2d 1413 (4th Cir. 1991); cf. Zapata, 133
F.R.D. at 484 (finding Zapata’s claim “essentially undocumented”
because Zapata provided no information about what was copied, how
the copies were used, or whether the copies were necessary).
Similarly, we are unconvinced by plaintiffs’ argument that
the depositions were investigatory and infrequently used at trial
and that therefore the award of costs was an abuse of discretion.
See Allen, 665 F.2d at 697 (finding no abuse of discretion where
deposition fees were awarded for depositions that were not used
at trial). Although plaintiffs highlight several places in the
trial record where they state that they did not challenge whether
the PISD is responsive to the Hispanic population, there is no
indication, nor do they argue, that they conceded the issue prior
to the subject depositions. Finally, we find no support for
plaintiffs’ assertion that the award of costs is an abuse of
discretion because it may inhibit future civil rights lawsuits.
See LULAC, 123 F.3d at 848-49 (affirming award of costs against
plaintiff in Section 2 case); cf. Cypress-Fairbanks, 118 F.3d at
256-57 (finding no abuse of discretion in awarding school
district costs in Individuals with Disabilities Education Act
suit, although such an award may have a “chilling effect” on
future plaintiffs). We therefore affirm the district court’s
order granting defendants $13,925.43 in costs.
15
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment and cost
order of the district court.
16