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GONZALEZ v. MONTEREY CTY.

December 8, 1992

ALONZO GONZALEZ, JACINTO ROY MENDOZA, JUAN OLIVEREZ, GILBERTO C. PADILLA, MICHAEL P. ROMERO, JOSE ROSILLO, JOSE ANGEL VELASQUEZ, AND ANA L. VENTURA, Plaintiffs,
v.
MONTEREY COUNTY, CALIFORNIA, Defendant, JACKIE CRAGHEAD, KENNETH K. NISHI, CITY OF SEASIDE, CALIFORNIA, AND CITY OF MARINA, CALIFORNIA, Plaintiffs in Intervention, v. MONTEREY COUNTY, CALIFORNIA, Defendant, DONALD DUNSFORD, CHARMAINE CRUCHETT, BARBARA NELSON [individually and on behalf of] MONTEREY COUNTY COMMITTEE FOR FAIR REPRESENTATION, Plaintiffs in Intervention.


INGRAM


The opinion of the court was delivered by: WILLIAM A. INGRAM

MEMORANDUM OF DECISION

INGRAM, District Judge.

 Plaintiffs, members of defendant Monterey County's Hispanic community, commenced this litigation to challenge the County's apportionment of its supervisorial districts under the Voting Rights Act of 1965, 42 U.S.C.A. § 1973(c) (West 1981), and the Fourteenth and Fifteenth Amendments to the United States Constitution, thereby giving the court federal question jurisdiction.

 Plaintiffs now move to prevent the court from considering two redistricting plans presented by other parties to this litigation (the "H4" and "H5" plans). Plaintiffs premise their motion on the proposition that this court's consideration of the H4 and H5 plans would violate Section 5 of the Voting Rights Act. Plaintiffs move for the temporary installation of the redistricting plan proposed by plaintiff's counsel, Joaquin Avila, Esq., (the "Avila Plan"). (Pls.' Ex. 30).

 I. SUMMARY OF ISSUES

 This matter presents two questions for the court's determination. The first is whether a legislature's endorsement of a litigant's redistricting plan creates a substantial question under Section 5 of the Voting Rights Act. The second is under what circumstances should a court, which has the authority to order a temporary redistricting plan, allow a legislature additional time to formulate a qualified plan of its own.

 For the reasons stated below, the court rules in the affirmative as to the first question. As to the second, the court rules that where a legislature has not had an adequate opportunity to consider factors the court deems significant, the court should grant the legislature a limited opportunity to do so.

 II. STATEMENT OF FACTS

 Defendant Monterey County is a political subdivision organized pursuant to the laws of the State of California (the "County"). A five-member Board of Supervisors governs the County. Cal. Gov't Code § 25000. On September 8, 1981, the Board of Supervisors adopted Ordinance No. 2773 which adjusted the County's supervisorial districts based upon the 1980 Federal Decennial Census.

 On December 9, 1991, the County submitted the November 19, 1991 plan to the Department of Justice for preclearance review pursuant to Section 5 of the Voting Rights Act. (Def. Mem. Opp. Temp. Crt. Ordered Redistricting Plan at 6). Upon receipt of the County's November 19, 1991 plan, the Department of Justice requested additional information which the County later supplied. (Pls.' Ex. 33).

 A. Malapportionment of the September 8, 1981 and November 19, 1991 Plans

 Plaintiffs Alonzo Gonzalez, Jacinto Mendoza, Juan Oliverez, Gilberto Padilla, Michael Romero Jose Rosillo, Jose Velasquez and Ana Ventura are United States citizens of Hispanic descent residing in Monterey County. On October 31, 1991, plaintiffs filed an action with this court seeking declaratory and injunctive relief pursuant to sections 2 and 5 of the Voting Rights Act, 42 U.S.C.A. §§ 1973, 1973c (West 1981). Plaintiffs argued that the court should enjoin the County from implementing the November 19, 1991 plan, as neither the Department of Justice nor the United States District Court for the District of Columbia had precleared the plan pursuant to Section 5 of the Voting Rights Act. (Complaint at 2). Even if the County succeeded in obtaining preclearance, plaintiffs argued, the November 19, 1991 plan impermissibly denied Spanish-speaking persons of Hispanic descent an equal opportunity to participate in the political process in violation of Section 2 of the Voting Rights Act. Id.

 Defendant moved to dismiss plaintiffs' Complaint as a premature attempt to invalidate the November 19, 1991 plan before the County had an opportunity to seek preclearance under Section 5. (Def. Mem. Supp. Dismiss at 3). Defendant argued that the court lacked jurisdiction to enjoin enforcement of the November 19, 1991 plan. Id.

 Prior to the court's ruling on the County's Motion to Dismiss, the Board of Supervisors adopted Ordinance No. 3604 on April 7, 1992 (the "April 7 Plan") and submitted that plan to the Department of Justice. Subsequently, the Department of Justice declared it had no objection to the April 7 plan. The Department of Justice announced that it need not rule on the November 19, 1991 plan, as the April 7 Plan had superseded the November 19, 1991 plan. (Pls.' Ex. 34).

 While the County's Motion to Dismiss remained under submission, the court granted two groups leave to intervene. Order of June 1, 1992. The first consisted of Jackie Craghead, an African-American, and Kenneth Nishi, an Asian-American, the City of Seaside and the City of Marina (the "Craghead Intervenors"). *fn1" The Craghead Intervenors alleged the April 7 Plan was a product of the County's intentional discrimination against African-Americans and Asians in Seaside and Marina and moved the court for a preliminary injunction preventing the County from holding elections under the April 7 Plan. *fn2" The court also granted intervention to Donald Dunsford, Charmaine Cruchett, and Barbara Nelson, individually and on behalf of the Monterey County Committee for Fair Representation (the "Dunsford Intervenors"). Order of June 1, 1992.

 The Dunsford Intervenors obtained the signatures of approximately 16,000 Monterey County voters who favored holding a referendum on the April 7 Plan pursuant to California Elections Code § 3753. *fn3" On June 4, 1992, the County Voter Registrar certified that the Dunsford Intervenors' voter petition contained a sufficient number of signatures to require the Board of Supervisors to either reconsider the April 7 Plan or submit the April 7 Plan for voter approval pursuant to California Elections Code §§ 3753, 3754. The Board of Supervisors voted to submit the April 7 plan for voter approval in the November 3, 1992 general election.

 In a Memorandum of Decision filed July 2, 1992, the court granted the County's Motion to Dismiss plaintiffs' Complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, giving plaintiffs 30 days leave to amend their Complaint. The court reasoned that the April 7 Plan had superseded the November 19, 1991 plan which plaintiffs' Complaint challenged. In addition, the court noted that the parties no longer favored adoption of the November 19, 1991 plan.

 On July 13, 1992, plaintiffs filed their First Amended Complaint for declaratory and injunctive relief pursuant to sections 2 and 5 of the Voting Rights Act. Plaintiffs reiterated their earlier challenges to the November 19, 1991 plan and challenged the September 8, 1981 plan, as well.

 The County moved to dismiss or stay plaintiffs' First Amended Complaint, arguing that the court's July 2, 1992 Memorandum of Decision ruled that the Board of Supervisor's adoption of the April 7, 1992 Plan precluded any challenge to the November 19, 1991 plan. In addition, the County argued that the court should dismiss plaintiffs' challenge to the September 8, 1981 plan, as the County did not intend to hold elections under that plan.

 Questioning the County's contention that it did not intend to hold elections under the September 8, 1981 plan, the Craghead Intervenors moved for Summary Judgment on the ground that permitting the 1981 boundaries to continue in effect impermissibly extended the terms of incumbent supervisors elected under the 1981 plan and constituted a continuing injury to the County's African-Americans and Asian-Americans. (Craghead Intervenors' Mem. Supp. Summ. J. at 1).

 On September 8, 1992, the court denied the County's Motion to Dismiss or Stay plaintiffs' First Amended Complaint and granted the Craghead Intervenors Motion for Summary Judgment against the September 8, 1981 plan. (Trial Mins. of September 8, 1992).

 B. Trial of the April 7 Plan

 On September 8, 1992, the court commenced a bench trial on the merits of the April 7 Plan under Section 2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments to the Constitution. On November 3, 1992, however, the County's voters defeated the April 7 Plan. *fn4" Accordingly, the court resumed its search for an interim redistricting plan.

 C. Challenge to the H4 Plan Under Section 5

 When the court reconvened on November 9, 1992 plaintiffs and the Dunsford Intervenors presented two plans for the court's consideration: the Avila plan and the H4 plan. On November 10, 1992, the Board of Supervisors declared:

 
With regard to the Gonzalez case, the Board unanimously votes not to support the Avila plan of September 4. On a three to two vote Supervisors Pennycook, Perkins and Karas vote to endorse the H4-P2.6 Plan and instructs outside counsel to support that ...

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