Curtis Holt, Sr. v. City of Richmond, Curtis Holt, Sr. v. City of Richmond , 459 F.2d 1093 ( 1972 )

HAYNSWORTH, Chief Judge:

We are met with the problem of the effect of “unconstitutional motivation” on the part of certain officials of the City of Richmond in agreeing with officials of Chesterfield County upon a settlement of an annexation proceeding. The District Judge, 334 F.Supp. 228, did not invalidate the annexation, which occasioned the plaintiff’s appeal, but he ordered a councilmanic election on the basis of a division of the City into voting districts of unequal size, the predominantly white voters of the small district electing two councilmen and the voters in the remainder of the city, containing a majority of blacks, electing seven. He also enjoined present incumbents from interfering with efforts of their successors to amend the City’s charter to provide some such device for subsequent elections. The relief granted occasioned the City’s appeal.

We think the “unconstitutional motivation” too remote from the judicial annexation decree, which firmly rested on non-racial grounds, to warrant a grant of any relief.

In Virginia, cities and counties are mutually exclusive. The area embraced within a city’s limits is not a part of a county. Cities expand at the expense of the territory of an adjacent county, and Virginia has provided a judicial procedure as the means for extending the limits of cities.

Under the Virginia procedure, a city wishing to expand its territory must file an action in the Circuit Court of the county containing the coveted area. A special court of three judges is constituted; evidence is taken and the court decides whether or not some annexation is to be decreed. If some is to be ordered, the court fixes the new boundary between city and county and determines an amount of money to be paid by the city to the county for schools, utilities and other improvements which had been built and installed by the county. A city may reject such an award, but if it accepts it, the area defined in the decree, by virtue of it, is effectively detached from the county and annexed to the city as of the following January first.

Within this framework, after an abortive effort to merge the City of Richmond and Henrico County in 1961, Richmond, in January 1962, instituted judicial proceedings for the annexation of portions of Henrico and Chesterfield Counties.

The Henrico County case, in the Cir- • cuit Court of that County moved first, but not hastily. After the disposition of several motions and the denial by the Virginia Supreme Court of Appeals of writs of prohibition,¹ the trial began in June 1963. There was a decree in April 1964 awarding 16.16 square miles to Richmond. That part of Henrico County was inhabited by 45,310 people, of whom 98.5 per cent were white. After further proceedings, the amount to be paid by Richmond was fixed at 55 million dollars.² Because of the amount of that award, Richmond rejected it and abandoned the Henrico annexation proceeding.

The City of Richmond then concentrated on the Chesterfield case, pending in the Circuit Court of that County. An order granting a motion to dismiss was filed in March 1966, but was reversed, and the proceeding reinstated by the Virginia Supreme Court of Appeals.³ After further pretrial proceedings, the formal trial began in September 1968 and proceeded until January 9, 1969 when one of the judges disqualified himself and a mistrial was declared.

After the Court was constituted, Mayor Bagley of Richmond and Chairman Horner of the Board of Supervisors of Chesterfield County resumed settlement negotiations which earlier had been unproductive. In May 1969, they reached an agreement on a new boundary line and in June, on the amount of money to be paid by Richmond for the annexed area. The agreement, which also included a provision that the County would take no appeal from the annexation decree, was approved informally by a majority of Richmond’s councilmen.

The judges and the lawyers all recognized that the settlement agreement was not binding upon the court. The statute⁴ requires judicial determination of the new boundary arid appropriate compensation. Moreover, civic associations of Chesterfield County had intervened in the proceedings, and the inter-venors did not subscribe to the settlement agreement. Thus, additional evidence, principally that which the inter-venors wished to introduce, was taken, and the proceedings were concluded. The judges were obviously influenced by the settlement agreement for their annexation decree was in conformity with it.

The intervenors sought review by Virginia’s Supreme Court of Appeals, but that court denied a writ of error on November 26, 1969, so that the decree became effective on January 1, 1970.

The District Court’s grant of relief had as its foundation a finding that the settlement agreement was the product of racially oriented motivation. That finding rested principally upon the fact that everyone knew that the black population of Richmond had been growing, while the white population had been declining, and the further fact that by 1969 the blacks were no longer the minority and, without an infusion of new white voters, probably could control the councilmanic election scheduled to be held in 1970. The finding was also thought to be supported, to a lesser extent, by findings that a minority of the members of the Council had made extra-legislative statements of opposition to a black take-over of Richmond’s government.

If legislative motivation is ever relevant, it surely is to be doubted that it may be proven by evidence of extra-legislative declarations of a minority of its members made in the context of partisan politics. We need not pause to explore that matter, however, for the District Judge said he attributed little weight to such statements, and it seems clear that he would have made the same findings without such evidence.

There were other subordinate findings.

First, there was a finding of “concern” on the part of officials of the City of Richmond, of Chesterfield County, and of the State “that the City of Richmond not become a city of the old, the poor and the Black.” There is nothing sinister in such concern. It is simply recognition in Richmond of a problem common to most of our cities throughout the United States. As the more affluent residents move to suburbs, central cities encounter a multitude of problems, including a declining tax base with which to support services for which there is an ever increasing demand. Where it is practical, an obvious and traditional answer has been extension of the city’s boundaries to encompass developing residential and industrial areas.

Second, the District Judge found that some, but not all, of those who expressed such concern were “inspired” by fear of a shift in control of Richmond’s City Council. This is similar to the finding that some of the members of the Council were fearful of the results of the 1970 elections if there was not an infusion of new white voters.

In city political affairs, there were two contending factions. One known as “Richmond Forward” had the support of a majority of the white voters in the city. Of the nine members of the Council in 1969, six had been elected with the endorsement and backing of that group. The other faction known as “Crusade for Voters” had a wide appeal among Negro voters. Three members of the 1969 Council had been elected with the endorsement of that faction. The political leaders of the two factions conducted themselves as leaders of political parties do. We have no reason to doubt that the leaders of the “Richmond Forward” group entertained some fear that they and their party might be turned out of office. This, however, is the natural reaction of politicians in the face of an apparently growing strength of an opposing political party.

This concern about the results of the 1970 election had an immediate relevance to the annexation suit. The three councilmen elected with the support of the “Crusade” openly opposed any annexation. It was thought that this would be the position of other councilmen elected with the support of the “Crusade,” and that if the “Crusade” could elect a majority of the Council in 1970, and the annexation had not by then been effected, all of the prolonged and strenuous efforts to enlarge Richmond’s boundaries would have been frustrated.

Thus, one who felt that enlargement of Richmond’s limits was a matter of great importance would have been concerned about the outcome of the 1970 election without the need of attribution to him of any covert or evil motive.

There was an ancillary finding that the three “Crusade” members of the Council were not brought into the informal discussions held in May and June, 1969. The fact is of little consequence, for there was nothing calling for action of the Council at that time. It was necessary to know whether an annexation decree entered in accordance with the agreement would be rejected by a majority of the Council. Informal consultations to discover the answer to that question were naturally conducted by those favoring some annexation. There was no need to consult the three who were opposed to any annexation for it was known they would not support a compromise agreement, whatever its terms.

The District Judge also seemed to attribute some significance to the fact that, as part of the agreement, Chesterfield County agreed not to take an appeal from the annexation decree. This seems questionable, since as parties to litigation undertake to compose their differences, they necessarily agree to forgo further litigation. The agreement, of course, did not foreclose an appeal by the intervenors, and the interve-nors actually sought a writ of error. It was denied, however, and the litigation was finally concluded before the end of 1969, so that the annexation decree became effective on January 1, 1970. As to Chesterfield County, however, its agreement not to appeal, as the informal agreement of a majority of Richmond’s councilmen not to reject the annexation decree, was a logical, if not an essential, ingredient of any agreement. Its presence does not alter the coloration of the activity.

The essence of the findings then may be summarized in context.

In 1961 there were compelling reasons for annexation of portions of Chesterfield County. Negroes were then a minority in Richmond and no one was then thinking in terms of a possible cleavage between black and white voters. Race was not a factor in the decision to seek annexation. Indeed, the finding was that, without the settlement agreement, the annexation court would have awarded more territory, and a larger preponderance of white voters, to Richmond.

Long before 1969, the annexation court had urged the parties to seek agreement. They had sought some agreement, but such negotiations were unsuccessful until 1969. By 1969, the District Court found a majority of Richmond’s Council was willing to accept a smaller area with fewer people than earlier they would have. That willingness, to the extent it was not a product of natural weariness with judicial proceedings commenced more than seven years earlier, was influenced by a sense of urgency that forces opposed to any annexation might succeed in gaining control of a majority of the Council.

Because the opposing forces were thought to be black and the blacks were close to attaining an electoral majority, the motivation of a majority of Richmond’s councilmen in supporting a settlement in 1969 was thought by the District Court to be an invidious dilution of black voting power. Though such a settlement earlier, with a larger infusion of white voters, would have been unassailable, an agreement in 1969 to accept fewer white voters and to pay a larger sum to Chesterfield County than it might have paid earlier warrants an inference of racial discrimination, so the District Court found.

The District Court recognized, however, that there was no racial motivation in the institution of the annexation proceeding or in its prosecution. If some members of Richmond’s governing body had developed a sense of urgency because of the growing number of black voters and their supposed opposition to any annexation and the election of “Richmond Forward” candidates, no such thoughts were believed to have in-fécted the minds of the judges of the annexation court. In fact, the District Court found that annexation rested upon such firm non-racial grounds that it was necessary, expedient and inevitable.

For such reasons, the District Court did not invalidate the decree of the annexation court. Instead it sought to provide some compensation for the timing of the decree by ordering districting of voters, placing enough of them in one almost all white district to insure a black majority in the other district which would elect seven of the nine councilmen.

There are exceptional cases in which courts have stricken legislative action when its sole or clearly dominant purpose was both obvious and constitutionally impermissible. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed. 2d 110 was such a case. There a state statute redrew the boundaries of the City of Tuskegee, Alabama. Earlier, its boundaries had formed a perfect square, but the statute carved out of that square “a strangely irregular twenty-eight-sided figure” with the result of removal from the city of “all save only four or five of its 400 Negro voters while not removing a single white voter or resident.” The facts were “tantamount for all practical purposes to a mathematical demonstration” that the sole purpose of the legislation was to segregate the voters by race and to deny to former black residents the right to vote in municipal elections.

When the legislative purpose is not both obvious and constitutionally impermissible, however, the cases uniformly hold that facially constitutional legislation may not be stricken because of suspect legislative motivation. As long ago as 1810, Chief Justice Marshall recognized the principle in a case ⁵ in which a Georgia statute was attacked on the ground its enactment had been procured by bribing the legislators. Chief Justice Marshall said for the Court:

“It may well be doubted how far the validity of a law depends upon the motives of its framers, and how far the particular inducements, operating on members of the supreme sovereign power of a state, to the formation of a contract by that power, are examinable in a court of justice. If the principle be conceded, that an act of the supreme sovereign power might be declared null by a court, in consequence of the means which procured it, still would there be much difficulty in saying to what extent those means must be applied to produce this effect. Must it be direct corruption, or would interest or undue influence of any kind be sufficient? Must the vitiating cause operate on a majority, or on what number of the members ? Would the act be null, whatever might be the wish of the nation, or would its obligation or nullity depend upon the public sentiment?

“If the majority of the legislature be corrupted, it may well be doubted, whether it be within the province of the judiciary to control their conduct, and, if less than a majority act from impure motives, the principle by which judicial interference would be regulated, is not clearly discerned.”

More recently the Court, through Chief Justice Warren, spoke to the principle in a case ⁶ in which a congressional act was attacked for having as its purpose the. suppression of free speech. He said:

“Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress’ purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settle’d criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a ‘wiser’ speech about it.”

Most recently, the Court considered the problem in Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438. Though it might have been reasonably concluded that the sole and obvious purpose of the closure of the municipal swimming pools was to defeat integration rather than the conservation of municipal funds, a majority of the Court declined to do it. ' Speaking through Mr. Justice Black, it said:

“But no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it. The pitfalls of such analysis were set forth clearly in the landmark opinion of Mr. Chief Justice Marshall in Fletcher v. Peck, 6 Cranch 87, 130 [3 L.Ed. 162] (1810), where the Court declined to set aside the Georgia Legislature’s sale of lands on the theory that its members were corruptly motivated in passing the bill.

“A similar contention that illicit motivation should lead to a finding of unconstitutionality was advanced in United States v. O’Brien, 391 U.S. 367, 383, [88 S.Ct. 1673, 1682, 20 L. Ed.2d 672] (1968), where this Court rejected the argument that a defendant could not be punished for burning his draft card because Congress had allegedly passed the statute to stifle dissent. That opinion explained well the hazards of declaring a law unconstitutional because of the motivations of its sponsors. First, it is extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment. * * * It is difficult or impossible for any court to determine the ‘sole’ or ‘dominant’ motivation behind the choices of a group of legislators. Furthermore, there is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters. If the law is struck down for this reason, rather than because of its facial content or effect, it would presumably be valid as'soon as the legislature or relevant governing body repassed it for different reasons.” ⁷

Here there is no affirmative legislative act under attack. What is attacked is the Council’s failure to reject the annexation award and the informal participation of some councilmen in an agreement which hastened the conclusion of the tediously prolonged litigation. If that be the equivalent of legislative action, the cases in the Supreme Court require.that it not be stricken.

For perfectly valid reasons, Richmond’s elected representatives had sought annexation since 1961. Those reasons were compelling, so much so that, as the District Court found, annexation was “inevitable.” For those reasons, and for those reasons alone, settlement negotiations had been undertaken, and the court had encouraged and prompted them. If they were not fruitful earlier, there is no suggestion anywhere that the legitimate reasons for compromise did not wax in strength as the litigation extended into its eighth year. There is no finding, and the record would not support such a finding, that any councilman who did, or did not do, anything in 1969 was not motivated by the same purposes which led to the institution of the annexation proceeding in 1961 and recurrent attempts to reach a settlement agreement in the intervening years. If some impermissible reasons crept into the minds of some members of Richmond’s Council in 1969, that cannot negate all of the compelling reasons which led them and their predecessors in office to press on the same course in earlier years.

We do not have here the dubious situation presented in Palmer or O’Brien in which the sole legislative purpose may have been impermissible. We do not have a case in which the legislative process was infected by corruption as in Fletcher v. Peck. What was done or not done had strong and legitimate reason. Under these circumstances, it far surpasses judicial power to strike down legislative action because some of the legislators may have been motivated by some impermissible reason in addition to those acknowledged permissible and legitimate reasons, found by the District Court, in effect, to be compelling, and which had set them on their consistent course.⁸

Under the circumstances, no violation of any Fifteenth Amendment right was worked by the annexation, effected, as it was, by the decree of the state court.

At the request of the parties, we have proceeded to hear and decide the Fifteenth Amendment questions, notwithstanding the fact that the Attorney General has filed an objection under the Voting Rights Act of 1965. We have no jurisdiction to consider any problem arising under that Act,⁹ and what we have said reflects no opinion as to the appropriateness or inappropriateness of the Attorney General’s objection. Reversed.

1 . King V. Hening, 203 Va. 582, 125 S.E.2d 827.

2 . In addition to the payment to Henrico County representing the value of existing improvements, the monetary award included the cost of other improvements which the decree required Richmond to effect.

3 . City of Richmond v. County of Chesterfield, 208 Va. 278, 156 S.E.2d 586.

4 . 3 Va.Code Ann. (1964 Repl.Vol.) § 15.1-1041 (b).

5 . Fletcher v. Peck, 10 U.S. (6 Oranch) 87, 130, 3 L.Ed. 162.

6 . United States v. O’Brien, 391 U.S. 367, 383-384, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672.

7 . Palmer v. Thompson, 403 U.S. 217, 224-225, 91 S.Ct. 1940, 1944, 29 L.Ed.2d 438.

8 . For additional discussion of the problems involved in judicial analysis of motivation, see Bickel, The Least Dangerous Branch, 202-221; Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, The Supreme Court Review, 1971, 95; Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1217, 1218; The Supreme Court, 1970 Term, 85 Harv.L.Rev. 3, 86-95.

9 . 42 U.S.C. § 1973c.