William Mallory v. George C. Eyrich

peti- awarding widow’s benefits decision

tioner, Laura Farmer.

WELLFORD, Judge,

concurring.

I decision that the Secre- concur changed

tary’s finding of no circumstances employment supported by sub- light

stantial evidence in of the record in proof

this case. The infer- reasonable

ences to be drawn therefrom would indi- circumstances, including changed

cate

deteriorating ability of the deceased at- dirty carry

tempting out difficult and

mining duties after 1975. I, II, parts

I therefore concur in and III decision and in the result reached. MALLORY, al.,

William et

Plaintiffs-Appellants, EYRICH, al.,

George C. et

Defendants-Appellees.

No. 87-3838. Appeals,

United States Court of

Sixth Circuit.

Argued Oct.

Decided Feb. elect- class have been protected of a

bers political or subdi- in the State ed to office may be which is one circumstance vision Provided, nothing in That considered: Brooklyn, (argued), I. Atkins Thomas right to have establishes section this N.Y., plaintiffs-appellants. in protected class elected of a members J. (argued), William I. Sutter Andrew in proportion the equal to their numbers Ohio, Columbus, Gen., Atty. Steele, Asst. population. Pros. (argued), Asst. Harper W. James defendants-ap- Cincinnati, Ohio, for Atty., I. pellees. A. LIVELY, Judge, Chief Before of Cin- are black residents plaintiffs The Judge, WELLFORD, qualified to vote are cinnati who Judge.* McRAE, District gover- are the The defendants elections. of Ohio and secretary of state nor Judge. LIVELY, Chief of the Hamilton members chairman and case in this principal question The In 1965 Elections. County of Voting Rights Act 2 of the section whether formerly sepa- merged the legislature Ohio amended, U.S.C. § as of Municipal Court of Cincinnati rate Section judicial elections. (1982), applies to County into Hamilton Hamilton 1982, provides: as of judges The Municipal County Court. right abridgement of or Denial § large at court are elected this consolidated color of race or vote on account basis, terms, staggered on a six-year pre- voting qualifications or through years simulta- every two held elections violation requisites; of establishment the Cincinnati elections for neously with prerequi- or (a) voting qualification No school city council and board. standard, or practice, voting or site census the black to the According ,be applied by imposed or procedure shall Cincinnati was 33.85% population of in a subdivision political any State County as a whole of Hamilton denial results which manner alleges that in the complaint 19.01%. of right any of citizen of abridgement municipal judges held since elections for account of vote on the United States courts, every black merger of the two color, in contravention or- race municipal has received judge candidate for forth section guarantees set percentage of the significantly smaller title, 1973b(f)(2) provided as of this overwhelmingly white areas vote (b) this section. subsection Cin- than in county outside Cincinnati (a) A of subsection violation sharp can- These differences cinnati itself. if, on the section is established based according to the com- explained, not be circumstances, it is shown totality of racial than the plaint, by factors other leading to nomina- political processes candidate make-up of the areas. No black political in the State or or election tion municipal race has a contested won open par- equally are subdivision opponent white when against a judge of citi- of a members class ticipation qualified vot- electorate consisted (a) of this protected subsection zens County. ers of Hamilton have less in that its members section sought of a certification than other members opportunity coun- and a political class action declaration participate in electorate Equal system violates representatives tywide élect process and to the Fourteenth Clause of Protection extent to mem- their choice. The which * Tennessee, designation. McRae, sitting by Judge, District of M. The Honorable Senior Robert Court for the Western States United District Amendment, guarantees prohibits imposition of enfran- applica version any chisement contained in the Fifteenth such incidence of “which Amendment, 1871 results the Civil Act of abridgement a denial or (42 1983), Voting Rights right U.S.C. to vote.” 1973(a) ... § U.S.C. § amended, Equal (1982) (emphasis added). and the Protec- purpose tion Clause of the Ohio Constitution. the amendment was to eliminate “in addition, complaint requested the requirement the dis- tent” and make it clear that a trict preliminary perma- court to enter and violation can by proof be established injunctions prohibiting nent the further use discriminatory results alone. Thornburg present procedures the Gingles, v. electing 478 U.S. 106 S.Ct. judges County Municipal of the Hamilton (1986). 92 L.Ed.2d 25 Court, “requiring and an order develop- the adoption ment and of Cincinnati and Hamil- C. County judicial plans pro-

ton election The district court its based determination cedures which are free of racial bias and that section 2 apply judicial does not to exclusivity.” grounds. First, elections on two the court great significance ascribed to use of the

B. word in the 1982 amend describing ment in parties how a violation of The filed cross-motions for sec sum- tion 2 is mary, judgment claiming established in a addressing Voting case the voting power. dilution of Rights Act The amendment and constitutional claims and refers protected each members of a support oppo- filed memoranda in class having “less opportunity than Following hearing sition. other mem where counsel bers of the argued motions, participate, electorate to granted the court political process and to representa defendants’ motion elect summary judgment 1973(b) tives their and entered choice.” containing findings an order U.S.C. § (1982). pointed The judicial fact court and conclusions of state law. After review- judges ments representatives that are not of section of the Act of constituents in purpose legisla and the the same sense amendment, of the 1982 as tors. E.g., Rhodes, Buchanan v. the district court stated its order that (N.D. F.Supp. 1966). there was Ohio The sufficient evidence in the record one-man, court also relied on a find in favor of on one-vote holding case in attempt basis of the do not results of courts recent elections. However, equalize population court concluded districts in that section judicial 2 does Gilligan, Buchanan v. elections. apply judicial elections, not (N.D. granted F.Supp. 1972). Ohio for the defendants on this basis. II.

The district recognized 1982 amendment to designed section was Although the district court did not to broaden its coverage. Prior to the one-man, en- discuss the principle, one-vote amendment, actment of that pro- section 2 defendants have cited a number of cases imposition hibited the application or any proposition for the principle voting qualification prerequisite or to vot- apply elections. We con standard, practice, procedure one-man, clude that the one-vote cases do “deny abridge right any citizen of brought not control cases Voting under the the United States to vote on account of one-man, Act. princi The one-vote race or color.” 42 (1976). U.S.C. Sims, ple was enunciated in Reynolds v. § The Court had construed this lan- 377 U.S. 12 L.Ed.2d 506 guage requiring showing of intent to seeking a case malap an end to the deny abridge right to vote. City portionment See legislatures. of state Bolden, Mobile v. point in Reynolds contention Sims 64 L.Ed.2d 47 The population was the voting of different dis- right abridge the to vote in per- composition. By tricts, not their racial of race. of officials be the basis number mitting the same districts by the voters chosen populations, different significantly having A. Reynolds v. Sims

the states involved constitutionality of the upholding living voters of those diluted the votes had de Voting Rights heavily populated areas. in the more purpose of the Act broad scribed the not an districts was makeup of the racial Voting Rights de “The Act was terms. in section 2 issue, sole issue that is the blight of by Congress to banish the signed one-man, Further, one-vote cases. voting, which has racial discrimination protection problem equal address an cases process parts of infected the electoral Fourteenth Amendment. directly under the country nearly century.” our South 2 claim involves plaintiffs’ section Katzenbach, 301, 308, Congress, Act of a dif- of an Carolina construction construing applying 808, 15 a 769 In and L.Ed.2d ferent task from 86 S.Ct. Elections, provision of the Constitution. Allen v. State of 22 L.Ed.2d legislative history in summoned the III. expansive interpretation of support of an principal court relied The district sweep Chief Justice War of the Act. “representa upon use of the word ly ren wrote: doing 2. In so it in amended section tives” legislative history the whole The many indications that such a overlooked supports Congress that intend- the view reading is not warranted. The restrictive any state enactment which ed to reach language original of section 2 was ab covered altered the election law of a prereq voting qualification or solute: “No example, way. minor For State even a standard, practice, voting, or uisite to or drafted, in- originally 2 of the § procedure imposed_” shall U.S.C. be prohibition against any “qualifi- cluded a added). (1976) excep- (emphasis No § During procedure.” the Senate cation or expressed implied. The tions were or bill, hearings Fong ex- on the Senator “vote” and Act also defined the terms “vot- “proce- pressed concern that the word ing” very broadly. enough to cover dure” was not broad “voting” The terms “vote” and shall might practices effectively that various necessary to a include action make right employed deny citizens their be to any primary, special, vote effective or response, Attorney In Gen- vote. election, general including, but not limit- objection expand- eral said he had no to, registration, listing pursuant ed section, language of the as the subchapter, required or other action “procedure” word “was intended be prerequisite voting, casting law practice.” In- any all-inclusiveof kind of ballot, having and such ballot counted give the Act dicative an intention to properly appropriate and included in the Congress possible scope, the broadest ex- respect candi- totals votes cast with panded language in the final version public party prop- office dates any “voting qualifica- to include § ositions for which votes are received prerequisite voting, tions or or stan- an election. dard, practice, procedure.” 42 U.S.C. (c)(1). Section U.S.C. 1973Í Candi- § ed., (1964 I). Supp. § judicial positions dates for un- elective are 566-67, (footnote Id. at 89 S.Ct. at 832-33 questionably public of- “candidates for ... omitted). There is no hint either Thus, fice.” sections taken to- opinions these state or local elec- gether, Congress strongly suggest that in- tion, involved, whatever the office is ex- tended to reach all and electoral practices deny empted coverage used that could be from of the 1965 Act. man, principle, one-vote

B. the other a against claim of invidious discrimination legislative history of the 1982 black Mexican-American voters Report is contained in Senate amendment legislative use multimember districts. 97-417, Congress (S.Rep.) No. 97th 2d Court affirmed an order re- Sess., Cong. reprinted in 1982 U.S.Code & quiring these multimember districts to be pages seq. et Admin.News at single redrawn as member districts on the Supreme Court has referred to this Senate “totality basis of the of the circumstances” Report source” for as an “authoritative before the district court. 412 U.S. at Congress’s amending section 2. intent 93 S.Ct. at 2341. In White the Gingles, 106 at 2763 n. Thornburg v. Court articulated a results test for dilution Again, everything contained in the re- claims and subsection codified the “ba- port indicates that the 1982 amendment principle” sic of that S.Rep. decision. expansion, to effect an rather intended contraction, applicability than a the Act to state and local elections. The purpose Given the of the 1982 amend- purpose states that the ment, accept we do not the restrictive read- amendment was to remove the restrictive ascribed to the word reading given to section 2 in City Mobile by (a) the district court. Subsection Bolden, and to make it clear amended section 2 did not weaken the abso- plaintiff prove discriminatory need not lute and original inclusive sec- purpose adop- to establish a violation—the fact, 2 in any way. strengthened it system proce- tion or maintenance of a (b), it. The addition of dealing subsection abridgement dure that results a denial or abridgement with one form of dilution —the voting rights 16, S.Rep. is sufficient. at protected group’s voting power of a —used nothing expressed 27-28. There is in this language from opinion the that dealt White purpose that indicates an intent to limit the legislators, with group public state a applicability Act. In fact the “representatives” officials who are in the 2 major states that “Section remains the being repre- restricted sense of chosen to statutory prohibition voting rights of all making sent their constituents laws. In 30, S.Rep. discrimination.” at 1982 U.S. Supreme spoke group White Court of a Cong. (empha- Code & Admin.News at 207 opportunity whose members had less than added). sis participate political others pro- “to legislators cesses and to elect of their

The 1982amendment did not diminish the 766, choice.” 412 U.S. at 93 S.Ct. at 2339. original reach or effect of the 2 in section (b) groups Subsection refers to whose any way. clearly It is a less onerous task opportunity members have less than others prove to a violation on the basis of a head participate political process “to in the required count than to be to show discrimi- representatives to elect of their choice.” natory purpose. intent or This new “re- change was the substitution sults” test is contained in amended section “legislators.” 2(a). The 1982 amendment also Congress added a new It seems evident that was seek- (b) subsection to section 2. The Senate a word to broader make it clear that (b) Report (b) states legislative that “subsection embodies is subsection not limited to by Supreme the test laid down “representatives,” races. It chose but 755, Regester, “candidates,” 412 White 93 S.Ct. could have chosen “office [v. 2332, (1973)].” seekers,” S.Rep. 37 L.Ed.2d 314 descriptive at or similar words. 27, Cong. fact, 1982 Report U.S.Code & Admin.News at the Senate uses “candidates” 205. The interchangeably subsection tracks and “elected officials” by White, See, that used “representatives.” S.Rep. Court in a with e.g., legislative reapportionment (use officials”); case decided 16 “elected (“If presented before Bolden. Cong. p. White two is- U.S.Code & Admin.News sues, one a claim of challenged practice violation of the one- as a result Court, action in an by the equal firmed an not have do structure pur political scheduled participate judicial election enjoin to to opportunity of their elect candidates processes and to had not legislative actions to suant section.” of this choice, is a violation there 5 of the section precleared under been added)); 29 n. (emphasis v. Mar Haith 1973c. See 42 U.S.C. § p. 207 n. 115 Cong. Admin.News Code & 1985), tin, (E.D. N.C. F.Supp. 410 aff'd minority candi- few (“[T]he of a opinion, without ‘necessarily foreclose the dates 5 re Section L.Ed.2d 559 vote,’ in the black possibility of dilution political sub their states and quires certain (emphasis add- section.” of this violation approval from to obtain divisions advance Cong. & Admin. ed)); U.S.Code States, the United Attorney General of course, ultimate test (“Of p. News declaratory action codified the White standard would be the Dis Court for whether, States District United 2: of Section amendment situation, operat- Columbia, practice any alterations trict of particular equal plaintiff an deny minority in ef procedures ed voting qualifications and to elect can- participate opportunity 5 uses November 1964. Section fect on omitted) (footnote of their choice.” didates of section language nearly to that identical added)); 1982 U.S.Code (emphasis defining prohibited practices “any 2 in — (“The p. Cong. & Admin.News prerequisite to vot voting qualification or equitable exercise its traditional should standard, practice, procedure ing, or so that it com- the relief powers to fashion In Haith respect voting.” with prior dilution of minor- pletely remedies applies 5 of the Act court held that section fully provides equal voting strength and ity elections: minority partic- citizens opportunity applies ipate and elect candidates of their choice.” seen As can be added)); 67, omitted) (footnote (emphasis who, voting without any limitation as p. Cong. Admin.News & U.S.Code what, object of the vote. ... (“The to look at ... whether courts are presented the courts have dealt cases protected class have the of a members “standard, prac- what with constitutes participate in opportunity as others same Dougherty Thus, tice, procedure.” to elect candi- process the electoral Education County, Georgia, Board of added)). (emphasis dates of their choice.” White, held that a Court “representa- word We do not believe the requiring employees newly enacted rule used as a nar- was tives” subsection unpaid seeking public to take office of rowing term of art. Such a treatment campaigning of absence while was leaves in the context of the 1982 amend- the word “standard, practice, procedure” re- completely is with ment inconsistent 5. quiring preclearance under section expand the purpose of the amendment 368, 32, 99 58 L.Ed.2d 269 439 U.S. S.Ct. Furthermore, of the Act. this application (1978). Congress said that The Court application of interpretation limit the would any state enactment 2, meant “to reach original section whereas (a) repeated and abso- the broad law of a cover- subsection which altered the election language original section 2 without lute way.” 439 U.S. ed State even in a minor limiting any way. can find no it We 371, quoting Allen 99 at at S.Ct. history legislative basis Elections, State Board of support hold- the 1982 amendment 1 S.Ct. L.Ed.2d that use of the word that an We hold that fact judicial elections was intended to remove election of members law deals with the operation Act. from from judiciary not remove it 5. the ambit section

C. reaching con- F.Supp. In at by is the deci- This conclusion reenforced clusion, court, quoted and summarily three-judge court three-judge of a af- sion elections, judicial using reasoning upon language of sec- similar to relied specifically that of the district court in this case. As Id. noted, Chisom now before the previously is D. appeal. In Martin v. Al Fifth Circuit on lain, (S.D. F.Supp. 1987), Miss. support for our conclusion If further rejected a restrictive read Attorney that the Gener required, we note “representatives,” of the word and held al, responsible for enforcement the officer apply judicial that section 2 does elec consistently has maintained that agree reasoning tions. We with the In applies judicial elections. section conclusion of the Martin court. Elections, Allen v. Board State 832-33, 566-67, at 89 S.Ct. at quoting Attorney General Nicholas Court IV. Katzenbach, that section 2 in stated “was tended to be all-inclusive of kind of A. [voting] practice.” hearings before Con prior passage of the Act in gress granted The district court also sum “every Attorney General stated that mary for the defendants on the registered per election in which voters are plaintiffs’ constitutional claims. It did so mitted to would be covered” vote largely on the basis of this court’s decision Hearing Voting Rights: Sub Act. Elections, in Gilday v. Board 472 F.2d Before Judiciary No. 5 the House committee (6th Cir.1972). However, Gilday was Committee, Cong. 89th 1st Sess. disparity concerned popu with the present recently July 1987 the 21. As lation between the electoral districts of the Attorney filed an amicus curiae General courts several Ohio counties. There was quite present in a case similar to the brief voting rights no issue of the denial of on argued plain he lan one which race; one-man, the basis of it was a one- guage ap of the Act demonstrates that it seeking proportional vote case representa plies elections and the 1982 tion. amendments to section were not intended Gilday plaintiffs While the relied on the pre-existing coverage to narrow the of that Equal Protection Clause of the Fourteenth section, Brief for the Chi United States Amendment, they sought the relief 87-3463, pending som v. Edwards No. principle pro- foreclosed the settled appeal before the United States Court of portionality required respect is not with Appeals for the Fifth Circuit. The Su However, judicial offices. there is no sim- United States v. preme stated in ilar rule when the issue is one of racial Commissioners, Sheffield discrimination and seek elimi- 55 L.Ed.2d 148 propor- nation of racial barriers rather than (1978), contemporaneous that the construc representation. plaintiffs tional Here the Voting Rights by the Attor alleged system electing judges ney compelling argu General constitutes a County Municipal to the Hamilton “especially light ment in of the extensive to, does, “is intended and have the effect of Attorney played role the General in draft denying equal protection Black voters un- ing explaining operation the statute and its der the Constitution and laws of the United (footnote congress.” omit citations alleged specifically, they States.” More ted). countywide municipal that election of judges Equal violated the Protection E. Clause and has the effect of disenfranchis- reported There are two County district court black in residents of Hamilton opinions that have decided this issue under violation of the Fifteenth Amendment. In Chisom v. Ed- These allegations amended section 2. are sufficient to state a wards, F.Supp. (E.D.La.1987), Rogers Lodge, claim for relief. 613, 3272, court held that section 2 does apply not S.Ct. 73 L.Ed.2d WELLFORD, Judge, allegation of denied the The defendants concurring: generally violations constitutional includ- of Elections County Voting that emphasize Hamilton I write amended, in motion claims its not assure ed the constitutional color, candidates, in of race or affidavit reason that judgment. summary for proportion to their in be elected issue should motion took the Board's support of voting population at percentage of by the filed affidavit with statements 1975(b) establishes given time. 42 U.S.C. § motion of their support plaintiffs in protected members of “right no to have in- question summary judgment. equal to their in numbers class elected [be] issue, was not in but squarely was tent The effect population.” proportion in the grant- decision court’s of the district basis remand this case is to of our decision the defendants. summary judgment develop parties to opportunity of the ques- court did reach The district judi- evidence, including the results holding that Gil- intent, mistakenly tion of unsuccessfully plaintiffs cial election which any claim precluded consideration day sought enjoin. judicial districts. realignment of seeking a Rogers Lodge, The facts in must consider court remand the district On 1012, reh’g 73 L.Ed.2d S.Ct. it unless issue of intent the contested denied, prin- plaintiffs on their relief to awards as a basis for cited L.Ed.2d Voting section 2 cipal claim under claim having asserted a sufficient plaintiffs Rights Act. markedly relief differ for constitutional in De- case.

from the circumstances Voting Rights Act was cided after B. the his- Rogers discussed on the did not rule court The district rights in deprivation toric racial action certifica- request for class plaintiffs’ Georgia county rural predominantly black remand, should the district court tion. On relief was deciding constitutional that decision request in view of our address this large offices which indicated for local at proper. was not summary judgment complaint This no black had served. ever of ac- sets out a thin constitutional cause comparison Rogers. tion at best C. by plaintiffs, upon in this case study relied Pelekondas, report Lois M. refers a 1986 noted, previously As head-to-head, only, be- to four elections would record order stated its in Hamil- tween white and black candidates plaintiffs un- granting relief to the support Ohio, County, which was about ton 19% standard. The der a “results” in 1970. black in black 15.7% court’s urge this as the district us to treat losing effort of a This to a refers finding if that section ultimate we conclude judicial candidate William black development applies, remand McClain, of the total who received 47.2% appropriate remedy. Since the case of an against Gor- votes cast in his race Robert court on sum- the district decided man, indi- a white This would democrat. developed mary judgment fully without McClain cate that had received record, is to course we believe better cast, re- he would have black votes still remand all issues. the white ceived more one-third of than of the district election, assuming that in votes cast reversed, is remanded for the case roughly proportional to the the vote was hardly proceedings makeup further consistent with this This of the electorate.1 voting pattern prereq- comports a opinion. with bloc fact, overwhelmingly many white wards. report, 1. The in shows that more Pelekondas than of the votes in McClain received more 40% allegation is no cases. There in such uisite BEYNON, minority group de- Shirley that a

or evidence Carl and in opportunity participate equal Plaintiffs-Appellees, nied an elections, County which was the Hamilton v. Chavis, determinative Whitcomb in CORPORATION, K-MART 29 L.Ed.2d U.S. Defendant-Appellant. Regester, v.White L.Ed.2d 314 No. 86-3867. large allegation that the at There is no Appeals, United Court of States adopted by Hamilton voting method was Sixth Circuit. change prior County as a from Argued July City voting pattern, only that the of Cincin- merged with those of the judgeships nati Decided Feb. in County beginning 1965. Yet Professor in her indicated that the Pelekondas City outside the

percentage of voters County was less in Hamilton

Cincinnati year of the last

than 42% change

federal census taken before scarcely indicate an place.

took This would part County Hamilton offi-

intent on the subjugate minority to dominate or

cials

population continuation of Cincinnati large judicial voting plan.

an at giving plaintiffs

Only by the benefit of

very considerable doubt can it be said that

they have set out a constitutional claim They point

this ease. four since 1965 in which a black candi-

elections general

date a white candidate faced

election, and in two of those elections the approximately received

black candidate of the total vote. I that these doubt

47%

uncontested facts set out basis for a

fourteenth fifteenth amendment claim. reasoning Judge

I concur Live-

ly’s opinion Voting as it relates to the claim, and that our decision Education, Gilday F.2d Cir.1972), (6th does not control the con-

stitutional claim. Burén, Stanley K. Van Thomas J. Keener Doucher, Wiles,

(argued), Van Burén & Co., L.P.A., Columbus, Ohio, Boyle for de- fendant-appellant. Graham, Graham, Dutro &

James L. Nemeth, Columbus, Ohio, Maryellen C. Spirito (argued), plaintiffs-appellees. NELSON, Before MERRITT and CELEBREZZE, Judges, and Judge. Senior Circuit

Case Details

Case Name: William Mallory v. George C. Eyrich

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 12, 1988

Citation: 839 F.2d 275

Docket Number: 87-3838

Court Abbreviation: 6th Cir.