LEAGUE OF UNITED LATIN AMERICAN CITIZENS, DISTRICT 19 v. CITY OF BOERNE; Patrick R. Heath, Mayor; R.L. Bien; Donald L. Gourley; Ann Reissig; Ben Stafford; Randy Bedwell, all in their official capacities as members of the City Council for the City of Boerne, Kendall County, Texas
Nos. 10-50290, 10-50416
United States Court of Appeals, Fifth Circuit
Sept. 28, 2011
659 F.3d 421
V.
Imagine the United States of America where the First Amendment protects a minor‘s right to play violent video games,37 a person‘s right to hatefully protest the funerals of our heroic men and women in the military,38 and the right to possess portrayals depicting animal cruelty, such as videos of people crushing kittens with their shoes,39 but does not protect a child‘s right to share a pencil with another child at school merely because the pencil says the word “Jesus.”
Our nation was built on the foundation of religious liberty and free speech.40 This principle has been enshrined in our Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech ....”
Sept. 28, 2011.
Jose Garza (argued), San Antonio, TX, for Plaintiff-Appellee.
William Michael McKamie (argued), Bradford Eugene Bullock, McKamie Krueger, L.L.P., San Antonio, TX, Claude Robert Heath, Bickerstaff, Heath, Delgado & Acosta, L.L.P., Austin, TX, for Defendants-Appellees.
Before BARKSDALE, DENNIS and HAYNES, Circuit Judges.
DENNIS, Circuit Judge:
The appellant, Michael R. Morton, seeks to intervene in a suit under the Voting Rights Act that was originally filed in 1996 by the League of United Latin American Citizens, District 19 (“LULAC“), against the city of Boerne, Texas. LULAC and the city reached a settlement agreement in 1996, and the district court entered a consent decree which provided that city council members would thereafter be elected through at-large elections with cumulative voting. In 2009, LULAC and the city filed a joint motion to reopen the case and modify the consent decree in order to switch to a single-member-district system. The district court granted that motion. Morton, a resident and registered voter in Boerne who opposes the change, filed a motion to intervene. The district court denied the motion on the grounds that Morton lacked standing. Morton has appealed. The city and LULAC have filed appellate briefs urging affirmance of the district court‘s denial of Morton‘s motion to intervene; they argue that he lacks standing and that this appeal is moot. Morton contends that he has standing and has a right to intervene. He further argues that this court should render judg-
BACKGROUND
In 1995, the city of Boerne, Texas, adopted a home rule charter pursuant to
The Texas Constitution provides that city charters may be adopted or amended “by a majority vote of the qualified voters of said city, at an election held for that purpose.”
Soon after the city adopted its charter, LULAC brought suit in federal court under the Voting Rights Act against the city and its mayor and city council members in their official capacities. LULAC‘s complaint alleged that the city charter‘s at-large, numbered-post election system unlawfully diluted the voting strength of minority voters, specifically Mexican-Americans, in violation of
The city thereafter held elections in accordance with the consent decree. One Hispanic member was elected to the city council in 1997. She was then reelected unopposed in 1999 and 2001; both of those elections were canceled because no candidate opposed any of the incumbents. In 2003, the Hispanic council member faced an opposing candidate for the first time and was defeated. LULAC and the city have stipulated that no Hispanic candidate has run for a position on the city council since 2003.
On December 2, 2009, the city council held a special meeting to discuss changing from at-large elections to single-member districts. Michael R. Morton, the appellant, spoke at that meeting in opposition to the change. The council voted 3-2 to file a joint motion with LULAC, asking the federal district court to enter a modified consent decree providing for single-member districts.
At the same meeting, the council also passed an ordinance establishing five single-member districts and delineating their boundaries. However, the issue was not submitted to the voters, as would be required under the Texas Constitution in order to modify the city charter. Thus, the provisions of the city charter, as originally enacted in 1995, requiring an at-large, numbered-post voting system, remain unamended. City of Boerne Home Rule Charter §§ 3.02, 4.05(B).
On December 9, 2009, the city and LULAC filed a joint motion asking the district court to reopen the case and enter a modified consent decree. The joint motion stated: “The cumulative voting system has failed to produce the results desired by either LULAC or the CITY .... The parties wish to modify the Compromise Settlement Agreement to provide for election of the City Council under a single member electoral district system instead of cumulative voting, in hopes of producing the desired remedy with respect to minority candidate and voter participation and voting strength.”
The district court entered an order reopening the case and adopting the proposed modified consent decree on December 11, 2009. The order did not give specific reasons for the court‘s decision or contain any findings of fact or conclusions of law. It stated, inter alia, “that upon completion of all steps necessary to implement the single member district electoral process ..., the parties shall promptly present a joint motion to dismiss to the Court.”
On January 6, 2010, Morton filed a motion to intervene, seeking to oppose the modified consent decree. The district court denied this motion on March 17, 2010, on the grounds that Morton lacked
Meanwhile, also on January 6, 2010, the city submitted the proposed change to the United States Department of Justice (DOJ) for preclearance under
The city and LULAC filed a joint motion to dismiss on April 14, 2010, and the
ANALYSIS
I.
The district court denied Morton‘s motion to intervene because it concluded that he lacked
Under Ruiz v. Estelle, 161 F.3d 814, 830 (5th Cir.1998), a would-be intervenor must establish that he has
The three well-known components of standing are injury in fact, causation, and redressability. E.g., Mims v. Stewart Title Guar. Co., 590 F.3d 298, 302 (5th Cir.2009). The district court held that Morton failed to establish injury in fact, in that he had stated “only a generalized grievance rather than a concrete and particularized injury that is required for standing.” The Supreme Court has explained, “We have consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen‘s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an
Contrary to the district court, we believe that Morton has stated an injury that is more than a generalized grievance and is sufficiently concrete and particularized to fulfill the injury-in-fact requirement of
In LULAC No. 4434, the plaintiffs (LULAC and ten individual voters) sued vari-
At that point, the plaintiffs, the Texas Attorney General, and some other officials who were parties to the suit agreed on a proposed settlement of the case. LULAC No. 4434, 999 F.2d at 839. In accordance with this agreement, the Attorney General filed a motion requesting that the en banc court remand the case to the district court for entry of a consent decree which would “provid[e] for the election of the vast majority of judges in the nine counties by subdistricts.”9 Id. However, some parties, including the aforementioned Judges Wood and Entz, opposed the proposed consent decree. “Anticipating the question of how the case [could] be settled without the agreement of [Wood and Entz], the plan allow[ed] [them] to be elected in a county-wide election. The stated purpose was to deny [them] standing to object.” Id. Accordingly, the Attorney General argued that Wood and Entz lacked
The injury that Morton has suffered due to the modified consent decree in the present case is essentially indistinguishable from the injury that established Wood and Entz‘s standing in LULAC No. 4434. Morton‘s injury is that he, as a voter, is deprived of his pre-existing right to vote for all the members of the city council which has jurisdiction over the city where he lives. Therefore, LULAC No. 4434 compels us to conclude that Morton‘s injury is sufficient to fulfill the injury-in-fact requirement of
The district court, in reaching the opposite conclusion, relied on Lance v. Coffman, 549 U.S. 437, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007). However, the facts of Lance are readily distinguishable from those of LULAC No. 4434 and the present case. In Lance, the plaintiffs were “four Colorado citizens” who contended that the Elections Clause of the
In addition to injury-in-fact, Morton also satisfies the other two requirements of
II.
The city suggests that this case may be moot because of the possibility that the DOJ, exercising its powers under
However, we conclude that this case is not moot because under Riley v. Kennedy, 553 U.S. 406, 128 S.Ct. 1970, 170 L.Ed.2d 837 (2008), if the modified consent decree is determined to be invalid, the city will not need to obtain preclearance from the DOJ in order to go back to the at-large voting system that it has used since 1997. In Riley, the relevant facts were as follows. The Alabama legislature passed a law adopting a new local election practice—namely, filling midterm vacancies on the Mobile County Commission by special election rather than by gubernatorial appointment. Id. at 414, 128 S.Ct. 1970. The DOJ precleared the law, and a special election was held in accordance with it. Id. at 414-15, 128 S.Ct. 1970. After the special election was announced but before it was held, a Mobile County voter filed suit in state court, challenging the law on state constitutional grounds. Id. After the election was held, the Alabama Supreme Court held that the law was invalid because it violated the state constitution. Id. at 415, 128 S.Ct. 1970. Subsequently, another midterm vacancy occurred on the Mobile County Commission, and the governor appointed a commissioner to fill the vacancy. Id. at 416, 128 S.Ct. 1970. A group of Mobile County voters filed suit in federal court under section 5 of the Voting Rights Act, seeking an injunction preventing the governor from making such an appointment “unless and until Alabama gained preclearance” of its change from special elections back to gubernatorial appointments as the method of filling midterm vacancies. Id. A three-judge district court ruled in the plaintiffs’ favor and gave the state 90 days to obtain preclearance. Id. at 416-17, 128 S.Ct. 1970. The DOJ denied preclearance, and the district court vacated the governor‘s appointment of the county commissioner. Id. at 417, 128 S.Ct. 1970. The governor then appealed to the United States Supreme Court, which reversed. Id. at 429, 128 S.Ct. 1970. The Supreme Court reasoned that “a law challenged at first opportunity and invalidated by Alabama‘s highest court is properly regarded as null and void ab initio, incapable of effecting any change in Alabama law or establishing a voting practice for § 5 purposes.” Id. at 425, 128 S.Ct.
The circumstances in Riley are closely analogous to the circumstances created by the potential invalidation of the modified consent decree in this case. In Riley, the law that adopted the new election practice “was challenged in state court at first opportunity, the lone election was held in the shadow of that legal challenge, and the Act was ultimately invalidated by the Alabama Supreme Court.” Id. at 425, 128 S.Ct. 1970. Essentially the same situation exists in this case: Morton challenged the modified consent decree in court at the earliest opportunity; Boerne has held an election using the new single-member-district system while this litigation has been pending; and, in this decision, we are vacating the modified consent decree (although it may or may not ultimately be invalidated on the merits). The only noteworthy difference is that here, the challenge is proceeding in the federal courts rather than the state courts. But the reasoning and holding of Riley did not depend on that distinction. We therefore conclude that the city will not need to obtain preclearance under section 5 before it can revert to holding at-large elections for its city council under the rules that were in place before the modified consent decree was entered. Consequently, the federal courts have the ability to provide effective relief in this case, and so the case is not moot.
III.
We next consider whether Morton has a right to intervene in this case under
“Although the timeliness of intervention is generally reviewed for abuse of discretion, where the district court makes no finding regarding timeliness, we review this factor de novo.” Id. at 1205 n. 2 (internal citation omitted). Here, the district court did not reach the question of intervention as of right, and there are no disputed facts that are relevant to the issue of timeliness, so we address the issue de novo. As we stated in Ruiz v. Estelle, 161 F.3d 814, 827 (5th Cir.1998), there are “four factors by which to evaluate the timeliness of an intervention motion. They are: (1) the length of time applicants knew or should have known of their interest in the case; (2) prejudice to existing parties caused by applicants’ delay; (3) prejudice to applicants if their motion is denied; and (4) any unusual circumstances.” Id. at 827.
As to the second factor, neither the city nor LULAC claims to have been prejudiced by the fact that Morton took four weeks to intervene, and it is hard to imagine how they could have been.
As to the third factor, Morton would be severely prejudiced if his motion to intervene was denied, because he appears to have no other possible procedural vehicle for his attempt to persuade the courts that the modified consent decree should be vacated. Morton has raised a nonfrivolous argument that the modified consent decree does not meet the requirement stated in LULAC No. 4434 that “any federal decree must be a tailored remedial response to illegality.” 999 F.2d at 847. “A consent decree must arise from the pleaded case and further the objectives of the law upon which the complaint is based.” Id. at 846. Morton argues that there is simply no current violation of federal law to be remedied by the modified consent decree. Furthermore, “[c]ourts must be especially cautious when parties seek to achieve by consent decree what they cannot achieve by their own authority.” Id. Such is the case here, because without the modified consent decree, the city would have needed to get the approval of a majority of Boerne voters in order to amend the city charter to switch to single-member districts.16 Morton likely cannot pursue the invalidation of the modified consent decree by filing a separate suit in federal court, because he does not appear to have any independent cause of action available to him under federal law. And a state court would lack power to vacate the federal court‘s consent decree. Thus, it appears that the only way Morton can oppose the modified consent decree is by intervening in this case. Consequently, he would be severely prejudiced by the denial of his motion to intervene.
The fourth and last timeliness factor is “any unusual circumstances.” Ruiz, 161 F.3d at 827. The parties have not identified any relevant unusual circumstances. Therefore, all four timeliness factors either favor Morton or are neutral. Morton‘s motion to intervene is timely, satisfying the first requirement of
The second requirement of
The third requirement for intervention as of right under
The fourth and final requirement is that “the applicant‘s interest must be inadequately represented by the existing parties to the suit.” Id. at 1205. The existing parties here—LULAC and the city—oppose the relief that Morton seeks; thus, they do not adequately represent his interest. Therefore, Morton fulfills all four requirements of
IV.
Morton argues that this court should not only reverse the district court‘s
In John Doe #1 v. Veneman, 380 F.3d 807 (5th Cir.2004), we explained as follows:
The usual rule in federal cases is that an actual controversy must exist at all stages of litigation, not merely at the time the complaint is filed. Where a controversy no longer exists, a claim based on that controversy is moot.
“In general, a matter is moot for
Article III purposes if the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” [Sierra Club v. Glickman, 156 F.3d 606, 619 (5th Cir.1998).] To have a legally cognizable interest in the outcome, a plaintiff must demonstrate an injury traceable to the defendant that is susceptible to some judicial remedy. [Baccus v. Parrish, 45 F.3d 958, 961 (5th Cir.1995).] “Generally settlement of a dispute between two parties renders moot any case between them growing out of that dispute.” [ITT Rayonier Inc. v. United States, 651 F.2d 343, 345 (5th Cir.1981).]
John Doe #1, 380 F.3d at 814. Based on this and similar cases, Morton argues that the present case was rendered moot by the
However, the Supreme Court and our court have stated that federal courts have inherent equitable power to modify their own decrees, including consent decrees. In United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932), the Court observed, “We are not doubtful of the power of a court of equity to modify an injunction in adaptation to changed conditions though it was entered by consent .... If the reservation [of power to amend the consent decree] had been omitted [by the court], power there still would be by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.” Id. at 114, 52 S.Ct. 460. The Court added, “The result is all one whether the decree has been entered after litigation or by consent. In either event, a court does not abdicate its power to revoke or modify its mandate, if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.” Id. at 114-15, 52 S.Ct. 460 (citation omitted). In a later case, the Court further explained, “The source of the power to modify [an existing consent decree] is of course the fact that an injunction often requires continuing supervision by the issuing court and always a continuing willingness to apply its powers and processes on behalf of the party who obtained that equitable relief.” Sys. Fed‘n No. 91, Ry. Emp. Dept., AFL-CIO v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961). And our court has likewise stated, “An injunction is by nature an equitable decree. The power of a federal court that enters an equitable injunction is not spent simply because it has once spoken. The federal courts have always affirmed their equitable power to modify any final decree that has prospective application.” United States v. Lawrence Cnty. Sch. Dist., 799 F.2d 1031, 1046 (5th Cir.1986). These cases make clear that when a court approves a consent decree that has been agreed upon by all the parties in a case, the court does not thereby deprive itself of the power to take any further actions.
Morton‘s mootness argument, if accepted, would lead to anomalous and unworkable results. It would make it impossible for courts to modify consent decrees due to changing circumstances, in precisely the set of cases where all parties agreed that a decree should be modified. For instance, suppose that the parties in a Voting Rights Act case agreed on a consent decree establishing single-member districts,18 and then several years later new census data became available, and the parties agreed on adjustments to the districts based on the new data. If the parties’ agreement was enough to render the case moot, the court would be unable to modify its decree, and the outdated decree would have to remain in force indefinitely until some new disagreement arose between the parties. Such results are not required by the Supreme Court‘s cases dealing with the modification of consent decrees. On the con-
We therefore conclude that the district court had “the power ... to modify [its] injunction in adaptation to changed conditions, though it was entered by consent.” Swift & Co., 286 U.S. at 114, 52 S.Ct. 460.
V.
Having established that the district court had the power to modify its equitable injunction based on changed circumstances, we now consider whether the district court‘s order modifying the consent decree was proper, given the record before it. We conclude that it was not.19
Consent decrees are subject to
District courts must take a flexible approach to motions to modify consent decrees and to motions to modify or vacate institutional reform decrees. Rufo, 502 U.S. at 379-80, 381, 112 S.Ct. 748. Flexibility is “often essential to achieving the goals of reform litigation.” Id. at 381, 112 S.Ct. 748; see also Horne v. Flores, 557 U.S. 433, 129 S.Ct. 2579, 2594–95, 174 L.Ed.2d 406 (2009) (confirming the “‘flexible approach’ to Rule 60(b)(5) motions” that the Court articulated in Rufo). Rufo established a 2-step test for determining whether modification is warranted. First, the party seeking modification must show that “a significant change either in factual conditions or in law” that “make compliance with the decree substantially more onerous [or] ... unworkable because of unforeseen obstacles[,] ... or when enforcement of the decree without modification would be detrimental to the public interest.” Rufo, 502 U.S. at 384, 112 S.Ct. 748. Second, the court must then “consider whether the proposed modification is suitably tailored to the changed circumstance.” Id. at 383, 112 S.Ct. 748.
To meet the first part of the test, the party seeking modification must show that the change in circumstance is “significant,” and not merely that “it is no longer convenient to live with [the decree‘s] terms.” Id. at 383, 112 S.Ct. 748. A party
The burden is on the moving party to prove that modification is warranted, regardless of whether the party seeks to lessen its own responsibilities under the decree, impose a new and more effective remedy, or vacate the order entirely. Rufo, 502 U.S. at 384, 112 S.Ct. 748; United Shoe, 391 U.S. at 249, 88 S.Ct. 1496; see Sierra Club v. Meiburg, 296 F.3d 1021, 1033-34 (11th Cir.2002) (affirming the denial of a motion to modify a consent decree because the plaintiff failed to show a change in law and failed to show either that there was a change in factual circumstances or that the decree‘s purpose had not been achieved). The district court must therefore examine the evidence on the record and consider whether the moving party met its burden.
We conclude that the paucity of the record in this case provided an insufficient basis for the district court to determine that modification was warranted. LULAC and the city argue that modification was warranted because cumulative voting had failed to achieve the decree‘s purpose. In this case, the decree‘s purpose is to alleviate the impermissible dilution of the votes of a protected class, which is prohibited by
The district court is, of course, allowed to consider “[t]he extent to which members of a protected class have been elected to office” in determining if there has been impermissible vote dilution under the Voting Rights Act. See
LULAC and the city had the opportunity to include additional facts in their joint motion to modify the consent decree, to file a summary of facts relied upon in the motion, and to file supporting affidavits and other pertinent documents. See W.D. Tex. Local Rules CV-7(b). The court had discretion to request further submissions or to schedule a conference or hearing on the matters. Id. at CV-7(e), (h). Neither the moving parties nor the district court exercised these options. As a result, the record consists only of the three-page motion that LULAC and the city jointly submitted, which alleged only that one minority candidate had run for city council in thirteen years, and that she was elected but later lost her only contested bid for reelection.
Counsel for LULAC and the city represented at oral argument that they are prepared to provide evidence to show that “time and experience” have demonstrated that the initial consent decree was not achieving its purpose, and that the modified consent decree will remedy impermissible and ongoing protected class vote dilution. However, they did not present this evidence in their motion to the district court. The district court granted the motion without requiring such evidence—and, therefore, without requiring LULAC and the city to meet the first step of the Rufo test. Because we find that LULAC and the city failed to meet their burden under the first step, we therefore need not reach the question of whether or not the district court abused its discretion with regard to the second step of the Rufo test, which requires the district court to determine whether the proposed relief is “suitably tailored to the changed circumstance.” Rufo, 502 U.S. at 383, 112 S.Ct. 748.
For these reasons, we conclude that the district court abused its discretion in granting LULAC‘s and the city‘s joint motion to modify the consent decree. On remand, the district court should permit
CONCLUSION
For the foregoing reasons, we REVERSE the district court‘s denial of Morton‘s motion to intervene; and VACATE the district court‘s order adopting the modified consent decree, and its April 19, 2010 order granting LULAC‘s and the city‘s joint motion to dismiss. We REMAND with instructions to the district court to grant Morton‘s motion to intervene and conduct further proceedings consistent with this opinion.
Will Terrance PORTER, Plaintiff-Appellee,
v.
Christopher B. EPPS, Individually and in his official capacity as the Commissioner of the Mississippi Department of Corrections, Defendant-Appellant.
No. 09-60324.
United States Court of Appeals, Fifth Circuit.
Sept. 28, 2011.