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MEMBERS OF THE CALIFORNIA DEMOCRATIC CONGRESSIONAL

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


March 3, 1992

MEMBERS OF THE CALIFORNIA DEMOCRATIC CONGRESSIONAL DELEGATION, et al., Plaintiffs,
v.
MARCH FONG EU, et al., Defendants. MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, on behalf of Sebastian Benavidez, et al., Intervenors.

The opinion of the court was delivered by: LEGGE

THREE JUDGE COURT

OPINION AND JUDGMENT OF DISMISSAL

 Before TANG, Circuit Judge, SMITH and LEGGE, District Judges.

 LEGGE, District Judge:

 This action involves various challenges to the redistricting or reapportionment *fn1" of the voting districts in the State of California which has been approved by the California Supreme Court. Plaintiffs and intervenors moved in this court for a preliminary injunction to restrain implementation of that redistricting plan, and instead to compel the Secretary of State of California to implement alternate plans proposed by them.

 On January 28, 1992 this court denied the motions for preliminary injunction. Because of the time urgency of advising the Secretary of State of our decision so that the statewide primary elections scheduled for June 1992 could be held, there was not then time for this court to prepare and publish an opinion. This opinion discusses the reasons for the denial of the preliminary injunctions, and further concludes that this action should be dismissed.

 I.

 Following the 1990 census, the State of California was mandated to adjust the boundary lines of its voting districts for state legislative representatives and for representatives to the United States Congress. U.S. Const. Article I, § 2; Cal. Const. Art. XXI, § 1. This responsibility primarily lies with the legislature and governor of the state. Assembly v. Deukmejian, 30 Cal. 3d 638, 180 Cal. Rptr. 297, 639 P.2d 939 (1982); Legislature v. Reinecke, 6 Cal. 3d 595, 99 Cal. Rptr. 481, 492 P.2d 385 (1972). However, they were unable to agree.

 On September 6, 1991 Governor Pete Wilson filed a petition with the California Supreme Court, alleging the failure of the state legislative process to produce a redistricting plan following the 1990 census and requesting the California Supreme Court to assume jurisdiction. Shortly thereafter, the California Legislature presented the governor with three redistricting plans. On September 23, 1991 the governor vetoed those plans. An attempt to override the governor's vetoes failed, and the legislature recessed for the remainder of the year.

 Two days later, the California Supreme Court decided to exercise its original jurisdiction; Cal. Const. Art. VI, § 10; California Education Facilities Authority v. Priest, 12 Cal. 3d 593, 116 Cal. Rptr. 361, 526 P.2d 513 (1974); and issued a writ of mandate compelling the preparation of a redistricting plan. Wilson v. Eu, 54 Cal. 3d 471, 286 Cal. Rptr. 280, 816 P.2d 1306 (1991). The Supreme Court appointed three special masters to hold public hearings, take evidence, hear arguments, and recommend a redistricting plan to that court. The California Supreme Court directed that the masters be guided by various standards, including the federal Voting Rights Act, 42 U.S.C. § 1971, et seq., the United States Constitution, the California Constitution, and state criteria developed in prior litigation. See Legislature of California v. Reinecke, 10 Cal. 3d 396, 110 Cal. Rptr. 718, 516 P.2d 6 (1973). The masters undertook their assigned tasks. They retained staff assistance, held public hearings, and accepted evidence and arguments from interested parties. On November 29, 1991 they filed their report and recommendations with the California Supreme Court. Their report included plans for redistricting the legislative districts for both houses of the state legislature and for the congressional districts.

 Following the presentation of their report and plans, the California Supreme Court entertained further briefing and arguments from interested parties. On January 27, 1992 the California Supreme Court issued its opinion, which accepted and adopted the plans proposed by the masters, with certain modifications not relevant here. Wilson v. Eu, No. 5022835 (Cal. Jan. 27, 1992).

 II.

 The action in this court was commenced on September 30, 1991, while the proceeding before the California Supreme Court was pending.

 A.

 The interested parties are the following:

 Plaintiffs are members of the California Democratic Congressional Delegation; that is, members of the House of Representatives who belong to the Democratic Party and who are currently elected from districts in California. The delegation's challenge to the redistricting plans is directed at certain of the congressional districts, alleging that they violate the United States Constitution and the Voting Rights Act. Several representatives have withdrawn as plaintiffs, but a substantial number remain.

 The first named defendant is March Fong Eu, the Secretary of State of California. Secretary Eu's presence in the case is formalistic, in that she is named as a defendant only because it is her responsibility to apply the districts which are adopted and to conduct the elections using those districts.

 The principal defendant, who has actively opposed the injunctions and moved to dismiss the case, is Pete Wilson, the Governor of the State of California. The governor has also moved to strike certain of plaintiffs' filings from the record; in view of our decision to dismiss the case, consideration of that motion is not necessary.

 The Assembly and the Senate of the California State Legislature are also named as defendants. They have appeared, not contesting the congressional districts, but instead challenging the new state assembly and state senate districts.

 A complaint in intervention was filed by certain California citizens represented by the Mexican American Legal Defense and Educational Fund. The intervenors joined with plaintiffs in challenging certain congressional districts, and also challenged certain state assembly and state senate districts. In addition to basing their challenge on the United States Constitution and the Voting Rights Act, intervenors also allege that the 1990 census undercounted the Latino population of California. This court granted their motion to intervene, but limited the intervention to the issue raised by plaintiffs; that is, the congressional districts. The court also declined to hear the intervenors' challenge based on alleged undercounting in the 1990 census, because this court concludes that constitutional and Voting Rights Act challenges to redistricting must be based upon the reported census figures. Karcher v. Daggett, 462 U.S. 725, 731-32, 735-38, 751, 77 L. Ed. 2d 133, 103 S. Ct. 2653 (1983); McNeil v. Springfield Park Dist., 851 F.2d 937, 946 (7th Cir 1988); Skorepa v. City of Chula Vista, 723 F. Supp. 1384, 1390 (S.D. Cal. 1989). Intervenors have moved to reconsider the limited nature of the court's grant of intervention. But in view of our conclusion that the action should be dismissed, that motion for reconsideration need not be discussed.

 An application was made by attorneys Messrs. Cochran and Dickerson for leave to file an amicus curiae brief on behalf of African-American citizens, contending that the new congressional districts undermine the representation of African Americans. Again, because of this court's conclusion that the case should be dismissed, the request for amicus curiae standing need not be discussed.

 B.

 Because the complaint challenges the constitutionality of the redistricted congressional districts, this three judge court was convened pursuant to 42 U.S.C. § 2284(a). This court has the power to pass upon all questions raised by the record, including questions of jurisdiction. See Bartley v. Finch, 311 F. Supp. 876, 878 (E.D. Ky. 1970), aff'd 404 U.S. 980, 30 L. Ed. 2d 364, 92 S. Ct. 442 (1971). The court is directed to proceed as in any case before a single district court judge. The case may be decided on dispositive motions or after a full trial. See, e.g., Badham v. Eu, 694 F. Supp. 664 (N.D. Cal. 1988) (motion to dismiss granted), aff'd 488 U.S. 1024, 102 L. Ed. 2d 962, 109 S. Ct. 829 (1989); Gingles v. Edmisten, 590 F. Supp. 345 (E.D. N.C. 1984) (bench trial held), aff'd in part and rev'd in part, 478 U.S. 30, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986).

 C.

 After this court was convened and various motions were made, we recognized the necessity for making rapid decisions on the issues raised. Speed was important because the California Secretary of State advised that the June 1992 elections could not be held unless all judicial decisions on redistricting were completed by the end of January. We therefore decided not to await the decision of the California Supreme Court before analyzing the issues in this case, but rather to convene a hearing to schedule further proceedings. On December 13, 1991 we agreed to issue no rulings pending a decision by the California Supreme Court; however, that delay was expressly not a decision that this court would abstain from proceeding. Schedules for filing of the record and authorities were set, and generally met by the interested parties. We received copies of the masters' proposed plans and copies of all filings made by the parties with the California Supreme Court. An oral argument on all of the issues was held on January 21, 1992. Being fully advised by the parties on the issues and authorities in the case, all judges of this court reviewed the moving and opposing papers, the arguments of counsel, and the applicable authorities while the California Supreme Court case was proceeding.

 As stated, the California Supreme Court issued its decision on January 27, 1992, and a copy of that court's decision was immediately delivered to this court. After studying the decision of the California Supreme Court, we unanimously determined on January 28, 1992 to deny the motions by plaintiffs and intervenors for a preliminary injunction.

 III.

 There is no doubt that this court has jurisdiction over challenges to voting districts based on the United States Constitution or the Voting Rights Act. 42 U.S.C. § 2284(a). However, the governor has moved to dismiss this action on the grounds of abstention. Abstention recognizes that in certain circumstances a federal court, although having jurisdiction over a dispute, should decline to exercise its jurisdiction in deference to the state courts. Abstention is a balance of constitutional federalism. It is based upon the principle of comity between the federal and state systems, and upon a recognition that state courts are as able to enforce litigants' federal rights as is a federal court. Younger v. Harris, 401 U.S. 37, 44, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). Middlesex County v. Garden State Bar Assoc., 457 U.S. 423, 431, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982).

 Any broad statement of the principle of abstention, however, overly simplifies the difficult considerations in deciding when abstention should or should not be applied.

 A.

 We start with the general principle that a federal court should exercise the jurisdiction given to it by the constitution or by congress. "Abstention from the exercise of federal jurisdiction," the United States Supreme Court has instructed, "is the exception, not the rule." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976). The fact that a state court is adjudicating a claim does not automatically relieve a federal court of its "virtually unflagging obligation . . . to exercise the jurisdiction given [it]" by Congress. Id. at 817. The pendency of an action in a state court "is no bar to proceedings concerning the same matter in the federal court having jurisdiction. . . .". Id. Consequently, abstention is warranted "only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest." County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 3 L. Ed. 2d 1163, 79 S. Ct. 1060 (1959). The U.S. Supreme Court has stated that the "task in cases such as this is not to find some substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is to ascertain whether there exist 'exceptional' circumstances, the 'clearest of justifications,' that can suffice . . . to justify the surrender of that jurisdiction." Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25-26, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983). (emphasis in original).

 Abstention in voting rights cases requires further "special consideration" and solicitude for the federal rights involved. Badham v. United States Dist. Court, 721 F.2d 1170, 1172 (9th Cir. 1983). "The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. The right is fundamental because [it is] preservative of all rights." Harman v. Forssenius, 380 U.S. 528, 537, 14 L. Ed. 2d 50, 85 S. Ct. 1177 (1965).

 B.

 Having stated that general starting point, we are then guided in our next steps by numerous cases in which federal courts have abstained in voting rights matters. E.g., Scott v. Germano, 381 U.S. 407, 14 L. Ed. 2d 477, 85 S. Ct. 1525 (1965); Badham, 721 F.2d at 1172; Duncan v. Poythress, 657 F.2d 691, 697 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012 (1982); Bianchi v. Griffing, 393 F.2d 457, 461 (2d Cir. 1968).

 C.

 In reliance upon Scott v. Germano, the governor urges four different types of abstention as bases for dismissing this action. Because this court decides that it should abstain under the authority of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), we need not discuss the other grounds for abstention asserted by the governor.

 Younger abstention generally prohibits federal courts from restraining or substantially interfering with pending state court litigation. Younger was a criminal case in which the criminal defendant asked a federal court to enjoin his prosecution on the ground that it violated the First and Fourteenth Amendments. The United States Supreme Court denied both injunctive and declaratory relief. The Court reasoned that the state court proceedings would provide an adequate forum for the adjudication of the constitutional claims. Permitting federal courts to intrude upon state prosecutions not only would entail duplicative litigation and the attendant risk of conflicting judgments, but would also work great harm to relations between the federal government and the states.

 The underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of "comity," that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.

 401 U.S. at 44. The availability of federal review by means of a petition to the United States Supreme Court is a sufficient answer to the concern that there be a federal forum for adjudication of federal rights. Id. at 57 n.3. (Brennan, J., concurring); cf. Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 68 L. Ed. 362, 44 S. Ct. 149 (1923); Worldwide Church of God v. McNair, 805 F.2d 888, 890-91 (9th Cir. 1986). *fn2"

 While Younger abstention originated as a prohibition against interfering with state criminal proceedings, the doctrine evolved to apply to state civil proceedings as well. See, e.g., Middlesex County v. Garden State Bar Assoc., 457 U.S. 423, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982) (state bar disciplinary proceeding); Trainor v. Hernandez, 431 U.S. 434, 52 L. Ed. 2d 486, 97 S. Ct. 1911 (1977) (state attachment proceeding); Juidice v. Vail, 430 U.S. 327, 51 L. Ed. 2d 376, 97 S. Ct. 1211 (1977) (state contempt proceeding in a private debt claim); Huffman v. Pursue, Ltd., 420 U.S. 592, 43 L. Ed. 2d 482, 95 S. Ct. 1200 (1975) (quasi-criminal proceeding concerning public nuisance statute). The Supreme Court has stated that the policies underlying are fully applicable to noncriminal judicial proceedings when "important state interests are involved." Middlesex, 457 U.S. at 432.

 In Middlesex, the Court established a three-step inquiry for determining when abstention is appropriate in deference to a state civil proceeding: (1) is there an ongoing state proceeding; (2) does the proceeding implicate important state interests; and (3) is there an adequate opportunity in the state proceedings to raise constitutional challenges. Id.

 The parties here do not dispute that the first Middlesex test is satisfied. The California state court proceeding was filed before this federal lawsuit commenced. The fact that the state court proceeding has now been concluded, and was concluded before this court issued its order of January 28, 1992, does not alter this first test. The Ninth Circuit has specifically held that the inquiry is whether the state proceeding was pending before the federal suit was filed, that the conclusion of the state case does not avoid abstention, and that dismissal is still required. Beltran v. State of California, 871 F.2d 777, 782-83 (9th Cir. 1988).

 The United States Supreme Court decision in Scott v. Germano, 381 U.S. 407, 14 L. Ed. 2d 477, 85 S. Ct. 1525 (1965), demonstrates the second requirement; that is, that redistricting implicates important state interests. In that case a state court suit challenging the state's redistricting plan was pending before the state supreme court while a similar federal action was being pursued. The U.S. Supreme Court held that the federal court should have abstained in favor of the state proceedings:

 We believe that the District Court should have stayed its hand. The power of the judiciary of a State to require valid reapportionment or to formulate a valid redistricting plan has not only been recognized by this Court but appropriate action by the States in such cases has been specifically encouraged.

 381 U.S. at 409 (citations omitted).

 The Supreme Court has also recognized the importance of state considerations in other voting rights cases. See Thornburg v. Gingles, 478 U.S. 30, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986); Karcher v. Daggett, 462 U.S. at 740. Here, the important state interests were specifically addressed by the masters and by the California Supreme Court. See Wilson v. Eu, No. S022835, slip op. at 15-17 (Cal. Jan. 27, 1992).

 The third test for Younger abstention -- an adequate opportunity in the state proceeding to raise the federal challenges -- is also present here. Congress did not vest jurisdiction under the Voting Rights Act in the federal courts exclusively. State courts have concurrent jurisdiction over claims under the United States Constitution and under the Voting Rights Act. See Hathorn v. Lovorn, 457 U.S. 255, 268-71, 72 L. Ed. 2d 824, 102 S. Ct. 2421 (1981). The United States Supreme Court has expressly recognized that state courts are competent judicial systems for the adjudication of federal issues. Middlesex, 457 U.S. at 431; see id. ("Minimal respect for the state processes . . . precludes any presumption that the state courts will not safeguard federal constitutional rights.") (emphasis in original).

 It is significant that congress gave the state courts concurrent jurisdiction under the Voting Rights Act, rather than conferring exclusive jurisdiction in the federal courts, as it was free to do. Exclusive jurisdiction would call for us to recognize the primacy of the federal courts in resolving questions under that act and to decline to abstain in this case. The vesting of concurrent jurisdiction, however, indicates both congress' intent and belief that state courts will generally provide due process. We believe this limits our authority to presume otherwise. Contrary to the concern raised by the dissent, our analysis does not foreclose intervention by the federal courts when there are allegations of either bad faith or constitutional infirmities in the state court process. See footnotes 2 and 3.

 Where, as here, congress has provided concurrent jurisdiction over the claims, the test is not whether the California Supreme Court is the best or the ideal forum for litigation of redistricting issues. Rather, the adequacy which Middlesex and Younger require is only the providing of due process for the adjudication of the federal rights. Once the state provides a forum that accords the parties due process, the United States Supreme Court considers that state forum to be as competent as federal courts for the adjudication of federal issues. See, e.g., Ohio Civil Rights Comm'n v. Dayton Christian Schs., Inc., 477 U.S. 619, 628, 91 L. Ed. 2d 512, 106 S. Ct. 2718 (1986) ("We also have no reason to doubt that Dayton will receive an adequate opportunity to raise its constitutional claims [in state court]."); Moore v. Sims, 422 U.S. 415, 435, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1979) ("We are unwilling to conclude that state processes are unequal to the task of . . . deciding the constitutional questions.").

 We have no doubt that the state proceedings here provided the required due process for the adjudication of the federal issues. The parties raised their contentions under both the United States Constitution and the Voting Rights Act in the proceedings before the masters and before the California Supreme Court. The California Supreme Court expressly recognized the federal interests to be protected in its order directing how the masters should perform their duties. The masters' report then discussed both the federal and state rights to be protected. Then, in its opinion adopting the masters' plan, the California Supreme Court extensively discussed both the federal constitutional requirements and the Voting Rights Act. This is due process for the adjudication of the federal issues raised. *fn3"

 The United States Supreme Court and the Ninth Circuit have expressed one further qualification to abstention in redistricting and voting rights cases--abstention should not be an excuse for inaction or delay by the state. See Scott v. Germano, 381 U.S. 409 at 409-10 ; Badham v. United States Dist. Court, 721 F.2d 1170, 1172 (9th Cir. 1983). In Harman v. Forssenius, 380 U.S. 528, 14 L. Ed. 2d 50, 85 S. Ct. 1177 (1965), for example, the United States Supreme Court affirmed the refusal of a three-judge court to abstain, on the ground of the impracticality of referring the case to the state court because of strict time constraints. Id. at 537. In the instant case, however, the California Supreme Court and the masters have acted timely, completing their work in time for the California Secretary of State to proceed with the next elections. There has been no reason to believe that the state processes would not be completed in a timely fashion. Moreover, the Harmon opinion is further distinguishable in that it predates the Supreme Court's decisions in Younger and Scott v. Germano.

 D.

 In litigation over other important federal rights, the United States Supreme Court and various federal courts of appeal have consistently applied Younger abstention, again referring to the important principles of comity, federalism and the ability of state courts to litigate federal constitutional issues. See, e.g., Ohio Civil Rights Comm'n v. Dayton Christian Schs., Inc., 477 U.S. 619, 91 L. Ed. 2d 512, 106 S. Ct. 2718 (1986); Middlesex County v. Garden State Bar Ass'n, 457 U.S. 423, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982); Moore v. Sims, 442 U.S. 415, 60 L. Ed. 2d 994, 99 S. Ct. 2371 (1979); Temple of Lost Sheep v. Abrams, 930 F.2d 178 (2d Cir.), cert. denied, 116 L. Ed. 2d 153, 112 S. Ct. 193 (1991); Duty Free Shop, Inc. v. Administracion de Terrenos de Puerto Rico, 889 F.2d 1181 (1st Cir. 1989); Beltran v. State of California, 871 F.2d 777 (9th Cir. 1989); Kitchens v. Bowen, 825 F.2d 1337 (9th Cir. 1987); Fresh Int'l v. ALRB, 805 F.2d 1353 (9th Cir. 1986); Worldwide Church v. McNair, 805 F.2d 888 (9th Cir. 1986).

 The line of United States Supreme Court and circuit court decisions since Scott v. Germano in 1965 and Younger v. Harris in 1971 is virtually unbroken, all leading to the same conclusion. That is, if a state court proceeding is pending at the time federal litigation is begun, and if the Middlesex criteria are satisfied, a federal court should abstain. That conclusion is particularly true in this case, where the litigants actively participated in the proceedings before the masters and the California Supreme Court, and where both the masters and the California Supreme Court gave careful consideration to both federal and state rights. *fn4"

 The fact that this is a voting rights case does not alter that conclusion. See Germano, 381 U.S. at 409; Badham v. District Court, 721 F.2d at 1172; Duncan v. Poythress, 657 F.2d 691, 697 (5th Cir. 1981) ("An alleged denial of voting rights does not, in itself, constitute a 'special circumstance' which automatically precludes federal court abstention."), cert. dismissed, 459 U.S. 1012 (1982). Absent the conferring of exclusive jurisdiction on the federal courts, and absent allegations that the state court's proceedings were in bad faith or unconstitutional, we must abstain and presume that the state courts will safeguard federal constitutional and voting rights. See Middlesex, 457 U.S. at 431.

 IV.

 Where abstention is required, and the state court proceeding has been concluded, the remedy is dismissal. Beltran v. California, 871 F.2d 777, 782-83 (9th Cir. 1989).

 IT IS THEREFORE ORDERED that the motions for preliminary injunction are denied, that the action is dismissed, and that a judgment of dismissal is hereby entered.

 DATED: March 3, 1992.

 CHARLES A. LEGGE

 United States District Judge

 FERN M. SMITH

 United States District Judge


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