Lillie BURTON, Vallie Danielles, et al., Plaintiffs-Appellants, v. CITY OF BELLE GLADE, Belle Glade City Commission, et al., Defendants-Appellees.
No. 97-5091.
United States Court of Appeals, Eleventh Circuit.
June 25, 1999.
Informed by this general organizational structure, we have previously observed that a defendant‘s actions that demonstrate acceptance of responsibility after the offense has been committed—such as post-offense rehabilitation—“bear only a tangential, if any, relation to [the offender‘s] just deserts. Such actions instead reflect more strongly on the offender‘s rehabilitative potential and likelihood of recidivism.” Id. at 1560. Given that the goals of incapacitation and rehabilitation are associated with the horizontal axis of the sentencing table, any downward departure for post-offense rehabilitation must occur along that axis.9
In this case, therefore, the district court was permitted to depart downward on the basis of Pickering‘s post-offense rehabilitation—assuming arguendo that such a departure was warranted—only by reducing his criminal history category from II to I. When combined with an offense level of 26, this departure would have yielded a minimum sentence of 63 months imprisonment. See
III.
For the foregoing reasons, we vacate Pickering‘s sentences for the three armed bank robbery offenses and remand this case to the district court for further proceedings consistent herewith.
VACATED and REMANDED.
Gerald F. Richman, Gary Steven Betensky, Mark Anthony Romance, Richman, Greer, Weil, Brumbaugh, Mirabito & Christensen, P.A., West Palm Beach, FL, for City of Belle Glade.
John Eldridge Baker, Allen, Mathews & Baker, Belle Glade, FL, for Belle Glade City Counsel.
Margaret Leslie Cooper, Allen Roy Tomlinson, Jones, Foster, Johnston & Stubbs, West Palm Beach, FL, for Belle Glade Housing Authority.
Before TJOFLAT, BARKETT and MARCUS, Circuit Judges.
Appellants, three African-American tenants of the Okeechobee Center, a housing project located in unincorporated Palm Beach County, and four African-American residents of the City of Belle Glade, brought this lawsuit alleging that the City of Belle Glade unlawfully deprived them of their right to vote in failing to annex the Okeechobee Center into the City. Specifically, Appellants contend that the City failed to annex the housing project for racial reasons in violation of the
On appeal, Appellants challenge the district court‘s order on three basic grounds: first, the district court purportedly erred in concluding that Appellants failed to raise a genuine issue of material fact as to Appellees’ discriminatory intent; second, the district court also erred in holding that the remedies they sought—including the unusual remedy of ordering a city to annex property into its municipal boundaries—were neither available under the Voting Rights Act nor permissible under the Federal Rules of Civil Procedure; and finally, the district court erred in granting summary judgment sua sponte to Appellees on Appellants’ Title VI claims. After thoroughly reviewing the record and the parties’ briefs, we affirm the district court‘s judgment concerning Appellants’ constitutional and Voting Rights Act claims, as well as the Title VI statutory claim, but reverse and remand Appellants’ cause of action to enforce Title VI‘s disparate impact regulations for further proceedings consistent with this opinion.
I.
The historical facts and the procedural history necessary to understand this lawsuit are complex and extensive. At the core, however, this legal battle has been fought over the refusal of the City of Belle Glade (“City“) to annex an adjacent housing project known as the Okeechobee Center Farmers’ Home Administration Project (“Okeechobee Center“) into its geographic and municipal boundaries.
The City of Belle Glade is an incorporated municipality located on the western side of Palm Beach County, near Florida‘s agricultural heartland. In the 1930s, the federal government created two housing projects outside the city limits. One of them, known as the Osceola Center, was populated by whites and stood at the City‘s northwest corner. The other, the Okeechobee Center, was populated by blacks and was located to the southwest of the City. In 1947, the City created the Belle Glade Housing Authority (“BGHA“), a board of seven members nominated by the mayor and appointed by the City Commission, to address the “shortage of safe sanitary dwelling accommodations in the City of Belle Glade available to persons of low income at rentals they can afford.” The BGHA assumed ownership and operation of both the Osceola and Okeechobee Centers. The centers, however, remain funded in part by the federal government through grants from the Department of Agriculture. “Jim Crow” laws required both housing projects to be segregated by race.1 During this time, the City also
In 1960, the total population of the City of Belle Glade was 11,273, of which 7,393 (65.6%) were non-whites and 3,880 (34.4%) were whites.2 The following year, the City proposed, for the first time, extending its municipal boundaries by annexing both the Okeechobee and Osceola Centers. The City asked the property owner, BGHA, whether it had any views on the matter. After discussing the possible advantages and disadvantages, the BGHA ultimately petitioned to the City only for annexation of the Osceola Center. Soon thereafter, on April 26, 1961, the City Commission considered the BGHA‘s petition and unanimously annexed the Osceola Center.
In the 1970s, the City and the BGHA twice considered the possibility of annexing the Okeechobee Center. In 1971, the City Commission‘s minutes simply reflect that a meeting was to be arranged between the City Commission and the BGHA to discuss the possibility of annexing the Okeechobee Center. The minutes make no mention, however, of who made the annexation request or whether any meeting was ever held. Two years later, on February 26, 1973, a group of tenants from the Okeechobee Center asked the City Commission to annex the center. The City Commission advised the tenants that it would consider annexation if the BGHA made the request. On April 17, 1973, the tenants asked the BGHA to petition the City for annexation, but the BGHA denied their request in October 1973. The record does not reflect whether the BGHA offered any reason for denying the request.
The following year, the Florida legislature repealed all local laws pertaining to the adjustment of municipal boundaries and established a uniform legislative standard for use throughout the state. See
As far as the record reflects, the tenants’ efforts at annexing the Okeechobee Center lay dormant for over ten years, until May 8, 1995, when Albert Peterson, a resident of the Okeechobee Center and President of the Resident‘s Council of the Okeechobee and Osceola Centers, wrote Mayor Weeks requesting that the City annex the Okeechobee Center. On May 30, 1995, the Mayor denied Peterson‘s request, concluding that annexation would be “neither feasible nor advantageous to the City from the financial and public services perspective.” The Mayor‘s letter summarized the findings of “[a] study of this issue that was done a number of years ago“:
Upon annexation, the City must provide the following municipal services: water, sewer, police protection, sanitation services, street lighting, street signs, street paving, maintenance, drainage, parks and recreation. Since the subject land is exempt from ad valorem taxes, no property taxes would be generated to offset the cost of providing the necessary services, which far outweigh any miscellaneous revenues that might be realized.
Other factors in determining the viability of annexing the parcel included the following: 1) No need exists to expand into the proposed parcel, 2) No industry would be annexed, 3) The parcel would provide no additional facilities to be brought into the City, 4) Annexation would not improve the economy of the City, and 5) The Comprehensive Plan would have to be revised thereby compounding the expense to the City.
Because “costs have risen, conditions have not changed, and the laws have not been amended” since that study was conducted, the Mayor concluded that he would not propose annexation of the Okeechobee Center.
On June 12, 1995, four tenants of the Okeechobee Center7 and four black residents of the City initiated this lawsuit seeking injunctive and declaratory relief against the City of Belle Glade, the Mayor of Belle Glade, the Belle Glade City Commission and its members, and the BGHA and its officers and members alleging that the BGHA‘s failure to petition for annexation and the City‘s failure to annex the Okeechobee Center, as well as the City‘s practice of annexing property populated by whites, denied or abridged the rights of Appellants to vote on account of race or color in violation of
Prior to trial, each side moved for summary judgment. The City filed a motion on Appellants’ claims under section 2 of the Voting Rights Act, arguing that because the Okeechobee Center did not satisfy the statutory requirements for annexation set forth in
II.
We give plenary review to a district court‘s grant of summary judgment. See Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1082 (11th Cir.1996).
In assessing whether the movant has met this burden, the courts should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. All reasonable doubts about the facts should be resolved in favor of the non-movant. If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial. Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. If reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment.
Clemons v. Dougherty County, 684 F.2d 1365, 1368-69 (11th Cir.1982) (citations omitted). To withstand a summary judgment motion, the non-moving party must establish that, based on the evidence in the record, there can be more than one reasonable conclusion as to the proper verdict. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Consequently, “[t]he mere existence of a scintilla of evidence in support of the [non-movant‘s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Id. at 252, 106 S.Ct. 2505; see also Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990).
A.
Section 1983: Fourteenth and Fifteenth Amendment Claims
Appellants8 contend that the BGHA‘s refusal to petition for annexation of the Okeechobee Center and the City‘s failure to annex the Center denied them the equal protection of the laws and deprived them of the right to vote on account of race, both by denying their right to vote and by diluting their voting strength, in violation of the Fourteenth and Fifteenth Amendments.9
cause of action for constitutional violations committed under color of state law.10 To prevail, plaintiffs must demonstrate both that the defendants deprived them of a right secured under the Constitution or federal law and that the deprivation occurred under color of state law. See Arrington v. Cobb County, 139 F.3d 865, 872 (11th Cir.1998). Because Appellees concede they acted under color of state law, we need only address whether Appellees acted in violation of the Constitution.
Section 1983 claims, moreover, are governed by the forum state‘s residual personal injury statute of limitations. See Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Specifically, a plaintiff must commence a § 1983 claim arising in Florida within four years of the allegedly unconstitutional or otherwise illegal act. See Baker v. Gulf & Western Indus., Inc., 850 F.2d 1480, 1483 (11th Cir.1988). The City‘s 1995 decision to deny Appellants’ request for annexation of the Okeechobee Center is the only act that occurred during the limitations period. Therefore, Appellants’ § 1983 claims rest solely on the constitutionality of that decision.
Moreover, to establish a violation of either the Equal Protection Clause of the Fourteenth Amendment or the Fifteenth Amendment, Appellants must show that the City‘s decision or act had a discriminatory purpose and effect. See Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 481, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997); Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 241-42, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Discriminatory purpose may be established by proof that the City used race as a substantial or motivating factor in its annexation decisions and practices. See Arlington Heights, 429 U.S. at 265-66, 97 S.Ct. 555. If the City‘s annexation decisions created an express racial classification, no inquiry into discriminatory purpose is necessary. See Shaw v. Reno, 509 U.S. 630, 642, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (citing Personnel Administrator v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)). However, once a discriminatory purpose is established, the burden shifts to Appellees to prove that, at the time of the discriminatory act, the same decision would have been made for a legitimate reason. See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).
At the heart of their appeal, Appellants argue that the district court erred in holding that no reasonable jury could conclude that race was a substantial or motivating factor in the City‘s 1995 annexation decision. Appellants point to three categories of evidence supporting a claim of intentional race discrimination: first, Appellants assert that since there was direct evidence of a de jure racial classification in Belle Glade housing before 1977, any inquiry into Appellees’ discriminatory intent is unnecessary; second, they suggest that the bizarre shape of the City‘s municipal boundaries is circumstantial evidence of improper racial motive under Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993); and third, they contend that they have presented substantial circumstantial evidence of the City‘s discriminatory intent in failing to annex the Okeechobee Center. Taken together, they argue, these categories of evidence raise a genuine issue of material fact as to whether race was a substantial or motivating factor in the City‘s 1995 decision to refuse annexation of the Okeechobee Center. We are not persuaded by Appellants’ arguments either standing alone or in concert, but consider each in turn.
1. De Jure Racial Classification
Appellants first argue that the City‘s annexation of the Osceola Center constituted the enforcement of a de jure racial classification. Because Belle Glade ordinances required racial segregation in residential housing, Appellants contend that the City‘s annexation of the Osceola Center back in 1961 constituted the enforcement of a de jure racial classification. Appellants, therefore, assert that the district court erred in failing to engage in the stringent review required for cases involving prior de jure segregation. This claim is unavailing.
The central purpose of the Equal Protection Clause of the Fourteenth Amendment is to prohibit states from discriminating against individuals on the basis of race. Plainly, where the racial classification appears on the face of the statute, no inquiry into legislative purpose is necessary. See Shaw, 509 U.S. at 642, 113 S.Ct. 2816 (citing Feeney, 442 U.S. at 272, 99 S.Ct. 2282). Such racial classifications are presumptively invalid and can only survive constitutional scrutiny if they are justified by a compelling state interest and are narrowly tailored to serve that interest. See id. at 643, 113 S.Ct. 2816. Moreover, Appellants argue that defendants should carry an even greater burden in this case, just as they do in the context of higher education. See United States v. Fordice, 505 U.S. 717, 727-32, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992). Where there is evidence that a current practice is “traceable” to or is “rooted” in a prior policy of segregation in education, defendants can only avoid liability by proving that the current policy does not have “continuing segregative effects or, even if it does, that there exists no practicable and educationally sound means of remedying any such effects.” Knight v. Alabama, 14 F.3d 1534, 1550 (11th Cir.1994).
In this case, however, the district court did not err in failing to require Appellees to prove that they attempted to remedy the effects of prior de jure segregation. In the first place, Appellants can point to no court that has ever applied Fordice outside of the education setting. Indeed, given the unique nature of school desegregation, we hesitate to extend Fordice to a property annexation case. But even if we assume, arguendo, that the analysis applies, Appellants have failed to demonstrate that the City‘s 1995 annexation decision is, in any way, “traceable” to or “rooted” in past de jure segregation. Knight, 14 F.3d at 1540-41 (noting that plaintiff has burden of proof to show that challenged policy is “traceable” to past segregation). The City‘s 1961 decision to annex the Osceola Center, the white housing project, and the concomitant “determination” not to annex the Okeechobee Center, the black housing project, when the BGHA only petitioned for Osceola‘s annexation, neither created a racial classification nor enforced the City‘s segregation laws. Although the two centers were segregated by race in 1961, on this record there is simply no evidence that residential segregation laws dictated which center the City annexed, or, indeed, that race played any role in the process. Moreover, there is no evidence that the City had any policy, either in 1961 or later, of making annexation decisions on the basis of the race of the residents in the proposed annexation areas. It is even unclear on this record that the City ever entertained a request to annex the Okeechobee Center in 1961, or, for that matter, that the Okeechobee Center was similarly situated to the Osceola Center, let alone evidence showing that the decision to annex the Osceola Center was somehow based on the race of its occupants. Nondiscriminatory reasons were offered to explain the Osceola annexation—including evidence that the BGHA requested annexation to provide City police protection to the residents due to ongoing threats against the center‘s manager—and Appellants have presented nothing to rebut this. While it is undeniably true that the two centers were segregated by race in 1961, Appellants notably have been unable to draw some connection between that de jure policy and the decision to annex the Osceola Center. Accordingly, we cannot find that the City enforced any policy of racial classification in its annexation decisions. Absent such evidence, the district court did not err in refusing to require Appellees to present evidence of their efforts to remedy prior de jure segregation.
The very most Appellants could argue is that the existence of the City‘s segregation ordinances may have raised an inference of discriminatory intent back in 1961. The existence of these ordinances, however, which were abolished more than twenty years before the 1995 decision, can in no way transform this cause of action into a challenge to the enforcement of a racial classification or de jure segregation.
2. Municipal Boundaries
Appellants also suggest that the municipal boundaries of the City of Belle Glade are so bizarre as to raise an inference of
To establish that a districting scheme amounts to impermissible racial gerrymandering, a plaintiff bears the burden of proving that race was the predominant factor in the legislature‘s decision either through “‘circumstantial evidence of a district‘s shape and demographics’ or through ‘more direct evidence going to legislative purpose.‘” Shaw v. Hunt, 517 U.S. 899, 905, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) [hereinafter Shaw II] (quoting Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995)). As the Supreme Court explained in Miller:
Shape is relevant not because bizarreness is a necessary element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature‘s dominant and controlling rationale in drawing its district lines.
515 U.S. at 913, 115 S.Ct. 2475. A plaintiff will not prevail, however, simply by pointing to the bizarre shape of a legislative district where the district lines are facially race neutral. Under those circumstances, “a more searching inquiry is necessary before strict scrutiny can be found applicable.” Bush v. Vera, 517 U.S. 952, 958, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (plurality opinion) (quotations omitted). Moreover, a state may defeat an allegation of racial gerrymandering by establishing that race-neutral considerations motivated the redistricting legislation and that those considerations were not “subordinated” to race. Miller, 515 U.S. at 916, 115 S.Ct. 2475. Once a plaintiff proves that race was the predominant factor, however, the redistricting decision then becomes subject to strict scrutiny: it must be justified by a compelling state interest and be narrowly tailored to achieve that interest. See Shaw II, 517 U.S. at 908, 116 S.Ct. 1894 (citing Miller, 515 U.S. at 920, 115 S.Ct. 2475).
The central problem with Appellants’ argument is that the City‘s shape has not been shown to have been created because of any affirmative annexation plan. Rather, the City‘s pattern of annexation over time merely reflects the aggregation of various owners’ requests for annexation, which the City generally approves so long as the proposed annexation satisfies the obligations of Florida law, and annexations initiated solely by the City, which also must conform to Florida law and which City voters and annex residents must approve by referendum. See
3. Circumstantial Evidence of Discrimination
Finally, Appellants claim that the circumstantial evidence, when weighed together, establishes the City‘s discriminatory motive or intent in refusing to annex the Okeechobee Center in 1995. Indeed, Appellants argue that the City‘s annexation decisions cannot be explained in non-racial terms. Appellants, therefore, contend that the district court erred in concluding that they failed to raise a genuine issue of material fact as to whether race was a substantial or motivating factor behind the City‘s 1995 decision to refuse annexation of the Okeechobee Center. See Arlington Heights, 429 U.S. at 265-66, 97 S.Ct. 555. Appellants also assert that the district court further erred in failing to shift the burden to Appellees to prove that, at the time of the discriminatory act, the same decision would have been made for a legitimate reason. See Mount Healthy, 429 U.S. at 287, 97 S.Ct. 568. Appellants are incorrect on both counts.
Turning to the circumstantial evidence surrounding the 1995 decision, Appellants contend that two additional pieces of evidence establish the City‘s discriminatory purpose. Appellants argue that the City‘s justification of costs in refusing to annex the Okeechobee Center raises an inference of race discrimination because the City does not usually consider costs when deciding whether to annex property. Appellants also assert that the City‘s view that Florida law prohibited annexation of the Okeechobee Center was a mere pretext for the City‘s discriminatory purpose. Neither argument raises an inference of discriminatory intent.
First, the City‘s reliance on cost as a justification for refusing to annex the Okeechobee Center in 1995 does not raise a genuine issue of material fact as to the City‘s allegedly improper racial motive. Appellants have offered no evidence to support their contention that the City does not usually consider cost in making annexation decisions. However, even if we were to assume, arguendo, that some disparity exists, we fail to see how reliance on cost here raises an inference of race animus. As the Annexation Committee found back in 1984, providing the necessary municipal services to the Okeechobee Center would be a very expensive proposition for the City of Belle Glade. Moreover, because the property is exempt from ad valorem taxes, the City would enjoy little revenue to offset this expense. Thus, the City‘s reliance on costs was altogether reasonable under the circumstances. Indeed, a Florida municipality has an obligation to its citizens to consider the economic impact of annexations.13 Therefore, we decline to accept Appellants’ suggestion that the City‘s reliance on cost was a pretext for race discrimination.
Second, the City‘s conclusion that Florida law prohibited annexation of the Okeechobee center does not raise an inference of race discrimination. The parties do not dispute that the Okeechobee Center could only be annexed if contiguous to the City, and that its contiguity would arise only from its proximity to State Road Number 80, which the City annexed in 1965. Therefore, Okeechobee‘s contiguity turns on whether a municipality may use a previ-ously annexed road to gain contiguity to
Since 1974, Florida law has provided that an owner of reasonably compact14 property that is contiguous15 to a municipality may petition for annexation. See
Based on this undeniably conflicting authority, we conclude that the City‘s reliance on the 1974 annexation statute as a justification for the denial of Peterson‘s request to annex the Okeechobee Center does not raise a genuine issue of material fact as to the City‘s discriminatory intent in 1995. Even if we were to determine today that Florida law permits annexation—and the law is anything but clear as to this matter—we would still conclude that the City‘s interpretation was an altogether reasonable one given the plainly conflicting Attorney General opinions.17
In short, the City‘s reliance on the 1974 annexation statute cannot fairly be taken as being a pretext for race discrimination.The only other evidence presented by Appellants relates to the historical background to the City‘s 1995 decision. However, “the historical background for a given decision is only one factor relative to intent. It does not, by itself, compel [a court] to find a discriminatory purpose behind every statute passed during regrettable periods of [a state‘s] past.” Hall v. Holder, 117 F.3d 1222, 1226-27 (11th Cir. 1997). Nevertheless, Appellants point to three pieces of historical evidence. First, the City‘s housing ordinances mandated residential segregation until 1963. Second, the Osceola and Okeechobee Centers were segregated by race until 1977. Lastly, the BGHA failed to petition the Okeechobee Center in 1961 and 1973 and the City failed to annex in 1961, 1971, and 1985. This evidence is far too remote and attenuated to be probative of any discriminatory purpose in 1995. Simply put, we fail to see how evidence of past residential segregation in housing, which ended almost twenty years before the decision at issue, and which is wholly unconnected to any annexation decision, or a prior refusal to annex standing alone establishes any intent, let alone a discriminatory one, in 1995. As we said in Holder, “past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful.” Id. (quoting Mobile, 446 U.S. at 74, 100 S.Ct. 1490); see also Freeman v. Pitts, 503 U.S. 467, 495-96, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). Appellants’ historical evidence does not raise a genuine issue of material fact as to whether the City‘s 1995 decision to refuse court, the propriety of using a road annexation to gain contiguity cannot turn on the subjective intent of the municipality in initially annexing the road. The court reasoned that the Florida legislature could not have intended for so strange a construction. See id. at 1183-84. However, we need not reach the merits of this issue to resolve the instant case.
On the basis of this record, viewing all of the circumstantial evidence and drawing all inferences in the light most favorable to Appellants, we conclude that Appellants have failed to raise a genuine issue of material fact as to whether the City‘s 1995 decision was racially motivated. No jury could reasonably find for Appellants based on this record. In the first place, the City‘s reliance on cost—a possible expense to the City of close to one million dollars—was an altogether reasonable basis on which to refuse annexation. Second, the City‘s reliance on Florida‘s contiguity requirement to deny annexation was likewise reasonable given the conflicting authority in Florida law, and in no way supports an inference of pretext for race discrimination. Lastly, Appellants’ historical evidence, which at most arguably raised an inference of the City‘s discriminatory intent in the 1960s and 1970s, offers no plausible connection between any conceivable discriminatory intent rooted in the past and the 1995 act at issue today. Taken together, this evidence does not raise a genuine issue of material fact as to the City‘s discriminatory intent in 1995.
Finally, the district court did not err in failing to consider the second prong of the Mount Healthy test. If Appellants cannot first prove that race was a motivating factor, there is no basis for shifting the burden to the City to determine whether, by a preponderance of the evidence, it would have made the same decision notwithstanding its racial motivation. See Mount Healthy, 429 U.S. at 287, 97 S.Ct. 568. Accordingly, we hold that the district court properly granted summary judgment in Concluding that the proposed annexation of the Okeechobee Center would have been illegal under Florida law since 1974, the district court also held that this statute was the intervening cause of Appellants’ injuries. See Burton, 966 F.Supp. at 1183-84. Again, it is unnecessary to reach the merits of this issue.
B. Section 2 of the Voting Rights Act of 1965
Appellants also contend that the BGHA‘s refusal to petition and the City‘s failure to annex the Okeechobee Center violated section 2 of the Voting Rights Act of 1965. Section 2,
In 1982, Congress amended section 2 to clarify that a plaintiff may establish a violation by a showing of discriminatory results alone.18 See
(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, or in contravention of the guarantees set forth in section 1973b(f)(2)19 of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of the 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 protected by subsection (a) of this section 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. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
Appellants have alleged claims of both vote denial and vote dilution.21 The district court, however, elected not to reach the merits of either of Appellants’ section 2 claims. Rather, the district court granted Appellees’ motion for summary judgment explaining that mandatory annexation is not an available remedy under the Voting Rights Act. The district court also considered each of the required factors in a vote dilution claim, see infra II.B.2, and concluded that it doubted whether Appellants had even made a prima facie showing under section 2. See Burton, 966 F.Supp. at 1186 n. 10. After thoroughly searching this record, we likewise conclude that Appellants have failed to establish a genuine issue of material fact as to either vote denial or vote dilution under section 2 of the Voting Rights Act.22 On the record presented, we agree with the district court that court-ordered annexation is not an appropriate remedy to redress either of Appellants’ alleged injuries—vote denial or vote dilution.23
1. Vote Denial
Vote denial occurs when a state, or here a municipality, employs a
Appellants have failed to raise a genuine issue of material fact as to whether they were denied the right to vote on account of race. First, they have not offered any evidence of a “history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process.” Gingles, 478 U.S. at 36-37, 106 S.Ct. 2752 (quoting S.Rep. No. 97-417 at 28, reprinted in 1982 U.S.C.C.A.N. at 206). Although Appellants have presented evidence of housing segregation in Belle Glade and in the two centers, we can find no evidence of any discrimination with respect to voting. Second, there is no evidence that Belle Glade uses or used any “voting practices or procedures that may enhance the opportunity for discrimination against the minority group.” Id. at 37, 106 S.Ct. 2752 (quoting S.Rep. No. 97-417 at 28, reprinted in 1982 U.S.C.C.A.N. at 206).
Third, we can find no evidence in this record that the black citizens of Belle Glade “bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process.” Id. (quoting S.Rep. No. 97-417 at 28, reprinted in 1982 U.S.C.C.A.N. at 206). Lastly, there is no evidence of any “significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.” Id. (quoting S.Rep. No. 97-417 at 28, reprinted in 1982 U.S.C.C.A.N. at 207). Nor is there any circumstantial evidence tending to suggest that the tenants of the Okeechobee Center were denied the right to vote on account of their race. Simply put, Appellants have failed to meet their burden of proving vote denial under section 2 of the Voting Rights Act.
2. Vote Dilution
In contrast, vote dilution occurs when an election practice results in the dilution of minority voting strength and, thus, impairs a minority‘s ability to elect the representative of its choice.
In Thornburg v. Gingles, the Supreme Court identified three threshold preconditions for establishing a section 2 vote dilution claim: (1) “the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district“; (2) “the minority group must be able to show that it is politically cohesive“; and (3) “the minority group must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority‘s preferred candidate.”24 478
Appellants have failed to raise a genuine issue of material fact as to any of the three Gingles prerequisites, and, therefore, their section 2 vote dilution claim must fail as well. We address each Gingles factor in turn.
We have repeatedly construed the first Gingles factor as requiring a plaintiff to demonstrate the existence of a proper remedy. See Brooks v. Miller, 158 F.3d 1230, 1239 (11th Cir. 1998), cert. denied, 526 U.S. 1131, 119 S.Ct. 1805, 143 L.Ed.2d 1008 (1999); Davis v. Chiles, 139 F.3d 1414, 1419 (11th Cir. 1998), cert. denied, 526 U.S. 1003, 119 S.Ct. 1139, 143 L.Ed.2d 208 (1999); Southern Christian Leadership Conference v. Sessions, 56 F.3d 1281, 1289, 1294-97 (11th Cir. 1995) (en banc); Nipper v. Smith, 39 F.3d 1494, 1530-31 (11th Cir. 1994) (en banc). This requirement simply serves “to establish that the minority has the potential to elect a representative of its own choice from some single-member district.” Nipper, 39 F.3d at 1530 (quoting Growe v. Emison, 507 U.S. 25, 40, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993)). Thus, if a minority cannot establish that an alternate election scheme exists that would provide better access to the political process, then the challenged voting practice is not responsible for the claimed injury. See Gingles, 478 U.S. at 50, 106 S.Ct. 2752. As we explained in Nipper:
The inquiries into remedy and liability cannot be separated: A district court must determine as part of the Gingles threshold inquiry whether it can fashion a permissible remedy in the particular context of the challenged system.
. . .
The absence of an available remedy is not only relevant at the remedial stage of the litigation but also precludes, under the totality of the circumstances inquiry, a finding of liability.
39 F.3d at 1530-31, 1533. Accordingly, the failure to establish the first Gingles factor—the availability of a remedy—is fatal to a plaintiff‘s section 2 claim.
Appellants argue that the district court erred in concluding that court-ordered annexation and an injunction against future discrimination in annexation decisions are not available remedies under the Voting Rights Act. We disagree. Specifically, Appellants prayed for two different forms of relief to redress their section 2 claims: an order requiring Belle Glade “to take all steps necessary to effectuate the annexation of the Okeechobee Center” into Belle Glade, and an injunction prohibiting Belle Glade “from enforcing any and all racially discriminatory policy(ies) in their decisions as to which parcels of land to annex.”25 Neither of these remedies are appropriate.
We do not suggest that a federal court would never have the power to order annexation. It is enough for us to conclude that the extraordinary and unprecedented remedy of court-ordered annexation is wholly inappropriate on the facts presented. This conclusion in no way rests on a determination that Florida law prohibits annexation of the Okeechobee Center. Indeed, we agree with the parties that where federal statutory or constitutional rights have been violated, state law will not impede a court from fashioning an appropriate remedy. See Armstrong v. Adams, 869 F.2d 410, 414 (8th Cir. 1989). We find on this record only that the district court did not err in concluding that court-ordered annexation was an inappropriate remedy to redress Appellants’ claims under the Voting Rights Act.
Turning to Appellants’ alternate remedy, the district court correctly determined that an injunction ordering the City not to discriminate in future annexation decisions would not satisfy the specificity requirements of the Federal Rules of Civil Procedure. Under
On this record, Appellants have not established a genuine issue of material fact as to the existence of an appropriate remedy sufficient to satisfy the first Gingles prerequisite. Notwithstanding Appellants’ failure to identify a suitable remedy, “a federal court should not dismiss a meritorious constitutional claim because the complaint seeks one remedy rather than another plainly appropriate one.” Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 65, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978). However, we cannot conceive of an alternative remedy for Appellants’ claims. In short, we hold that Appellants cannot meet the first Gingles prerequisite.
Although the absence of an available remedy is dispositive of Appellants’ claim, we nonetheless consider the second and third Gingles factors. Appellants have similarly failed to establish a genuine issue of material fact as to either of these elements. The second factor requires a showing that the minority group is politically cohesive, while the third demands proof of a majority white voting bloc sufficient to defeat the minority‘s preferred candidates. See Gingles, 478 U.S. at 50-51, 106 S.Ct. 2752. In other words, “[p]roof of the second and third Gingles factors ... is circumstantial evidence of racial bias operating through the electoral system to deny minority voters equal access to the political process.” Nipper, 39 F.3d at 1524. The existence of these factors, together with an appropriate remedy, as well as an assessment under the totality of the circumstances, generally will be sufficient to establish that the challenged practice allows racial bias to dilute the voting strength of the minority population. See id. at 1524-25.
Here, Appellants have offered no evidence of political cohesion or a majority white voting bloc. Indeed, as discussed earlier, Appellants’ only evidence concerns allegations of Appellees’ discriminatory intent. This evidence is wholly insufficient to meet the requirements of the Gingles factors. Given the dearth of relevant evidence as to Appellants’ section 2 vote dilution claim, Appellants have failed to establish a genuine issue of material fact concerning the second or third prerequisite under Gingles. We conclude, therefore, that Appellants have also failed to establish a genuine issue of material fact as to vote dilution, and hold that the district court properly granted summary judgment to Appellees on both of Appellants’ section 2 claims.
C. Title VI of the Civil Rights Act of 1964
Second, we have recognized an implied private right of action to enforce the regulations promulgated under section 602 of Title VI.29 See Elston, 997 F.2d at 1407; Georgia State Conference, 775 F.2d at 1417. These regulations prohibit recipients of federal funds from taking any action that results in disparate impact or discriminatory effects on the basis of race, color, or national origin.30 Under this cause of action, unlike a claim arising under section 601, a plaintiff may obtain injunctive or declaratory relief by showing, inter alia, that the challenged action has “a disparate impact on groups protected by the statute, even if those actions are not intentionally discriminatory.” Elston, 997 F.2d at 1406 (citing Alexander, 469 U.S. at 292-94, 105 S.Ct. 712; Guardians, 463 U.S. at 584 n. 2, 103 S.Ct. 3221; Georgia State Conference, 775 F.2d at 1417).
A district court possesses the power to enter summary judgment sua sponte provided the losing party “was on notice that she had to come forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Under
Appellants could survive summary judgment on their claim arising under section 601 only if they establish a genuine issue of material fact as to the BGHA‘s discriminatory intent after June 13, 1991, four years prior to the initiation of this lawsuit.32 Appellants’ § 1983 claims also required proof of discriminatory intent during that same period. However, because Appellants themselves moved for summary judgment on their § 1983 claims, it follows that they, in fact, had more than reasonable opportunity to marshal the same evidence of intent in support of their Title VI claim as well. And since Appellants plainly failed to adduce sufficient evidence as to intent with respect to any portion of their § 1983 claims, it likewise follows a fortiori that they could not present sufficient evidence of intent as to this Title VI claim either. Thus, the district court properly granted summary judgment sua sponte to the BGHA as to Appellants’ section 601 claim.
In contrast, Appellants were not afforded sufficient opportunity to defend against summary judgment with respect to their cause of action to enforce the disparate impact regulations promulgated under section 602 of Title VI. To survive summary judgment in this context, Appellants must establish, among other things, a genuine issue of material fact as to whether the BGHA‘s failure to petition for annexation of the Okeechobee Center resulted in a disparate impact on the Okeechobee Center tenants on the basis of race. See Elston, 997 F.2d at 1407. Appellants simply did not have an opportunity to develop or marshal this type of evidence. As we have observed, Appellants’ § 1983 claims turned on evidence of the City‘s discriminatory intent in refusing to annex the Okeechobee Center in 1995. Moreover, Appellants’ claims under the Voting Rights Act required evidence of an available remedy—court-ordered annexation or an injunction prohibiting the City from discriminating on the basis of race. But the evidence required to establish these claims is not dispositive of any disparate impact the BGHA‘s actions may have had on the Okeechobee Center tenants. The record is incomplete and issue has not been joined on this matter. We conclude, therefore, that the district court erred in granting summary judgment sua sponte to Appellee BGHA on Appellants’ action to enforce the disparate impact regulations promulgated pursuant to section 602 of Title VI, and we remand this claim to the district court to provide the parties with an opportunity to develop the record as to this distinct claim.33
III.
In sum, we hold that Appellants have failed to establish a genuine issue of material fact in support of their claims arising
UNITED STATES of America, Plaintiff-Appellee,
v.
Herschel HEAD, Jr., a.k.a. “Jr“, Defendant-Appellant.
No. 98-8491.
United States Court of Appeals, Eleventh Circuit.
June 25, 1999.
Notes
The purposes of this act are to set forth procedures for adjusting the boundaries of municipalities through annexations or contractions or corporate limits and to set forth criteria for determining when annexations or contractions may take place so as to:
(1) Insure sound urban development and accommodation to growth.
(2) Establish uniform legislative standards throughout the state for the adjustment of municipal boundaries.
(3) Insure the efficient provision of urban services to areas that become urban in character.
(4) Insure that areas are not annexed unless municipal services can be provided to those areas.
Prior to 1975, section 171.031(11) stated, in relevant part: “Local rights-of-way, utility easements, or railroad rights-of-way shall not be annexed in a corridor fashion to gain contiguity nor shall such activity be deemed to establish the contiguity required under this act.” 1974 Fla. Laws ch. 74-190, § 1 (emphasis added). Since the underscored language was deleted in 1975, see 1975 Fla. Laws ch. 75-297, Appellants contend that the statute only prohibits annexation of roads to gain contiguity, but it does not bar annexation of property contiguous to a previously annexed road. Even assuming, arguendo, that Appellants’ statutory interpretation is correct—and we have no need to resolve this question of Florida law today—the amended language does not establish that the City‘s statutory interpretation was unreasonable.
“1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the member of the minority group to register, to vote, or otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas 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 members of the minority group have been elected to public office in the jurisdiction.
Additional factors that in some cases have had probative value as part of plaintiffs’ evidence to establish a violation are:
whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group [and]
whether the policy underlying the state or political subdivision‘s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.”
Id. at 36-37, 106 S.Ct. 2752 (quoting S.Rep. No. 97-417 at 28-29, reprinted in 1982 U.S.C.C.A.N. at 206-07). However, “‘there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other.‘” Id. at 45, 106 S.Ct. 2752 (quoting S.Rep. No. 97-417 at 29, reprinted in 1982 U.S.C.C.A.N. at 206-07).
Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report.
(2) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.
(3) In determining the site or location of facilities, an applicant or recipient may not make selections with the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any of its activities or programs to which the regulations in this part apply, on the grounds of race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act and the regulations in this part.