### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-50131

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, DISTRICT 19, Plaintiff–Appellee
v. CITY OF BOERNE; PATRICK R. HEATH, Mayor; R.L. BIEN, all in their official capacities as members of the City Council for the City of Boerne, Kendall County, Texas; DONALD L. GOURLEY, all in their official capacities as members of the City Council for the City of Boerne, Kendall County, Texas; ANN REISSIG, all in their official capacities as members of the City of Boerne, Kendall County, Texas; BEN STAFFORD, all in their official capacities as members of the City of Council for the City of Boerne, Kendall County, Texas; RANDY BEDWELL, all in their official capacities as members of the City Council for the City of Boerne, Kendall County, Texas, Defendants–Appellees

v. MICHAEL R. MORTON, Intervenor–Appellant

Appeal from the United States District Court for the Western District of Texas

Before KING, BENAVIDES, and DENNIS, Circuit Judges. KING, Circuit Judge: U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D March 14 , 20 12 Lyle W . Cayce Clerk Case: 12-50131 Document: 00511787730 Page: 1 Date Filed: 03/14/2012No. 12-50131

This appeal requ ires us to decide whether the district court properly granted a joint motion by the City of Boerne, Texas, and the League of United Latin American Citi z e n s, District 19, to modify temporarily a consent decree. Becaus e w e conclude that the district court erred in approving the temporary modification without following the procedures mandated by an earlier panel, we vacate the district court’s order and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND In 1995, the City o f B o e r ne, Texas, (the “City”) adopted a Home Rule Charter (the “City Charter”), which provides, inter alia , for a City Council of five

mem b e r s to be elected on an at-large, numbered-post basis. Under the City Charter, elections are to be held once per year for two-year ter m s , with three council members to be elected in one year and two co u n c i l m e mbers plus the mayor to be elected the next year. See City Charter §§ 3.02, 4.05(B). Soon after the City Chart e r w a s adopted, the League of United Latin American Citizens, District 19 (“LULAC”), filed suit against t h e City alleging that the voti n g m e t h o d adopted by the City Charter diluted minority voting strength, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. The City and LULAC sett l e d i n December 1996, and the district court entered a consent decree in accordance with th e p arti e s ’ s e ttl e m e nt (the “Consent Decree”). Among other things, the Consent Decree provided that City Council members would be elected on an a t -large basis using cumulative voting, instead of a numbered-p o s t s y s t em, and that the City would seek preclearance of that system from the Department of Justice (“DOJ” ) under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. Subsequently, preclearance was obtained. The City Charter, however, was not amended, and therefore continued to provide for atlarge, numbered-post voting. For several years, the City held elections in accordance with the Consent Decree. One Hispanic member was elected to the City Council in 1997. She was

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r eelected unopposed in 1999 and 2001. In 2003, the Hispanic Council m e m b e r faced an opposing candidate for the first time and was defe a t e d

. N o other Hispanic candidate has run for City Council since that time. On December 2, 2009, the City Council held a special meeting to discuss

m oving from at-large elections to single-member district elections. Mich a e l R

. Morton (“Morton”), Intervenor–Appellant, opposed the change. Th e City Council voted to file a joint m o t i o n with LULAC, asking the district court to enter a modified Consent D e cree providing for single-member district voting. The Council also passed an ordinance establishing five single-member districts and delineating their boundaries. Because the issue was not submitted to the voters,

as is required to amend the City Charter, the City Charter continued to provide for at-large, numbered-post voting. LULAC and the City subsequently sought to modify the Consent Decree to provide for single-member district voting, stating that the “cumulative voting system has failed to produce the results desired by either LULAC or the City,” and the modification was sought “in hopes of producing the desired remedy with respect to minority candidate and voter participation and voting strength.” The C i ty a nd LULAC did not provide any supporting evidence. On December 11, 2009, the di s trict c ourt ap p rove d the agreement (the “Modified Consent Decree”). The order entering the Modified Consent Decree did not provide reasons for the decision or include findings of fact or conclusions of law. Instead, the court directed LULAC and the City to present a joint motion to dismiss the suit when implementation of the single-member district system was complete. On January 6, 2010, Morton filed a m o tion to intervene in the lawsuit, contending that the Modified Consent Decree d e p rived him of his right under the City Ch a r t e r t o vote for all of the City Council members through an at-large election. The district court denied the motion, concluding that Morton lacked standing. On that same day, the City submitted its single-member district plan

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to the DOJ for preclearance, which the DOJ subsequently granted. On the City

a n d LULAC’s joint motion, the district court dismissed the suit on April 19 , 2010. Morto n timely appealed the denial of his motion to intervene and the dismissal of the suit. Meanwhile, the 2010 and 2011 City C o u n c i l elections
p r o c eeded under the single-member district plan established in the Modified Consent Decree. On appeal, a panel of this court revers e d the district court’s denial of Morton’s motion to intervene, vacated the court’s order approving the Modified Consent Decree, and remanded for further proceedings. League of United Latin A m . Citizens, Dist. 19 v. City of Boerne , 659 F.3d 421, 440 (5th Cir. 2 0 1 1 ) (“LULAC I

”). The panel h e l d t hat Morton had standing and the right to intervene. Id. at 428-35. The panel also concluded that the district court had the 1
power to modify the Consent Decree, but it abused its discretion in doing so, because the record “provided an insufficient ba s is for the district court to determine that modification was warranted” pursuant to the two-factor test for modification of consent decrees established in Rufo v. Inmates of Suffolk County Jail , 502 U.S. 367 (1992). Id. at 437-38. Although the decision was rendered on September 28, 2011, the mandate did not issue until December 29 , 2011. When the case returned to the district court in January 2012, the City and L U LA C filed a motion seeking modification of the Consent Decree to allo w f o r single-member district voting in the upcoming May 12, 2012 City Council

e l e c t i on. The City and LULAC sought only a temporary modification bec a u s e they concluded that it would not be possible to comply fully with the LULAC I mandate before the election. On February 3, 2012, the court granted the motion

The pane l rec ognized that Mo rto n’s c l aim aros e unde r st ate law

. It st ated , “M ort on 1 doe s not clai m to have suf fer ed any violat ion of a voting right unde r the U.S. Cons tit utio n or a fed eral st atut e suc h as the Votin g Rights Act. Rather , his clai m, wh ich is suf fic ient to sho w an injury in fac t for Arti cle III st andi ng pur pos es , is that he has a voting right unde r the city char ter and this right has been abrid ged by the mo dif ied cons ent dec ree .” 659 F.3d at 428 n.4. 4 Case: 12-50131 Document: 00511787730 Page: 4 Date Filed: 03/14/2012No. 12-50131

for temporary modification and ordered that single-member districts be used for the May election (the “Order”). Arguing that the Order was contrary to LULAC I , Morton first sought a writ of mandamus, and subsequently filed a notice o f 2 appeal, along with an emergency motion to expedite the appe a l a n d stay the Order. We expedited the appeal, and now vacate the Order. II. STANDARD OF REVIEW Although we normally apply an abuse of discretion standard to a district court’s modification of a consent decree, see Ruiz v. Lynaugh , 811 F.2d 856, 861 ( 5 th Cir. 1987), “we review de novo whether the trial court faithf u l l y a n d accurately applied our instructions on remand.” Sobley v. S. Natural G as Co . , 302 F.3d 325, 332 (5th Cir. 2002 ). III. DISCUSSION 1. The District Court Failed to Comply with LULAC I On appeal, Morton contends that the district court failed to comply with the mandate of LULAC I , as t h e O r der approves modification of the Consent Decree without the required evidentiary showing. We agree. The LULAC I p a n el discussed in detail the evidence and procedures required before the dist r i c t court could authorize modification of the Consent Decree. While advocating a “flexible approach,” the panel relied upon the test for modification of consent decrees developed by the S u preme Court in Rufo v. Inmates of Suffolk County Jail , 502 U.S. 367, 378 (1992). The panel explained: First, the party seeking modification must show that “a significant change either in factual conditions or in law” that “make compliance with the d e c r e e substantially more onerous [or]

. . . unworkable b e c ause of unforeseen obstacles[,]

. . . or when enforcement o f t h e decree without modi f i c ation would be detrimental to the public interest.” Second, the court must then “consider whether the

Man dam us reli ef wa s deni ed by a pane l of this cour t, wh ich held that the temp orar y 2
mo dif icat ion wa s a typ e o f tem por ary injunct ion, app ealabl e pur sua nt to 28 U. S. C. § 1 292( a)( 1). LU

LAC v. Ci ty of Boer ne , No. 12- 50111, s lip op . at 2-3. 5 Case: 12-50131 Document: 00511787730 Page: 5 Date Filed: 03/14/2012No. 12-50131

proposed modification is suitably tailored to the changed circumstance.” LULAC I

, 659 F.3d at 437 (quoting Rufo , 502 U.S. at 383-84). The LULAC I panel concluded that the district court erred in granting the modification request without first requiring the parties to satisfy the Rufo test. Id. at 438-39. The panel explained that the “pa ucity of the record

. . . provided

an insufficient basis for the district court to determine t h a t m o d i fication was warranted.” Id. at 438. Recognizing that the Consent Decree was intended to alleviate vote dilution, the panel concluded that “LULAC and the city have not shown that the original consent decree had failed to achieve its intended purpose

or that there has been any other significant change in circumstance.” Id. at 439. The panel found that the evidence presented to the district court was insufficient to demonstrate satisfaction of the first step of Rufo , because the parties failed to “include additional facts in their joint motion to modify the consent decree, to file

a summary of facts relied upon i n t h e m otion, and to file supporting affidavits and other pertinent documents.” Id. Furthermore, the district court could have 3 “request[ed] further submissions or . . . schedule[d] a conference or hearing on the matters,” but it did not do so. Id. The panel therefore vacated the district court’s order approving modification of the Co n s e n t Decree, and reversed its dismissal of the action. The panel instructed that, on remand, “the district court should permit supplemental filings and conduct procee d i n g s , as necessary, to develop a sufficie n t r e c o r d in order to decide whether, consistent with this opinion, modification of the consent decree is appropriate.” Id. at 439-40. It is well established that “an inferior court has no power or authority to deviate from the mandate issued by an appellate court.” Briggs v. Penn. R.R. Co. , 334 U.S. 304, 306 (1948). The mandate rule requires that a “district court follow

LULA C I didno t reac h the se conds tep of the Rufo analys is. 659F. 3d at 439. 3 6 Case: 12-50131 Document: 00511787730 Page: 6 Date Filed: 03/14/2012No. 12-50131

both the letter and spirit of the m a n d a te by taking into account the appeals

c o urt’ s o pinion and circumstances it embrace s . ” U n i te d Sta tes v . C

a ra les - V i l la lta , 617 F.3d 342, 344 (5th Cir. 2010) (citation and internal q u o t a tion marks omitted)

. T he district court’s proceedings upon remand, however, bore little resemblance to those mandated by LULAC I

. The district cou r t d i d not, for example, permit the parties to conduct discovery, or hold an evidentiary hearing to rec e iv e c o m peting expert and lay testimony, or even offer Morton a substantial opportunity to rebut the evidence that the City and LULAC
p resented. The court determined instead that it could order a tempor a ry

4 modification of the Consent Decree if the City and LULAC could demonstrate a likelihood of success und e r th e R u f o s t an dard. Basing its decision primarily upon

a single affidavit and an otherwise underdeveloped record, the district c o u r t found that the parties satisfied this standard. By approving a modification of the Consent Decr e e w i th out holding a hearing and demanding a more developed factual record, the d i s t r i c t court failed to follow the “letter and spirit” of the LULAC I mandate. See Carales-Villalta , 617 F.3d at 344. Nor did t h e d i s t rict court have the authority to approve a temporary modification of the Consent Decree notwithstanding LULAC I

. The court believed it could do so because of the impending May 2012 election. On appeal, the City and LULAC contend that the dist r i c t c o u rt merely exercised its “well-recognized equitable power to grant interim relief in the context of Voting Rights Act challenges to election changes.” Although it is true that district courts generally have broad authority to order interim equitable relief in voting rights

Befo re the dis tri ct cour t, the City and LULAC sub mi tte d o n e a f f i d avit fr om the 4 Adm inis tra tive Services Di rec tor and De puty City Sec ret ary Linda Zart ler, wh o att es ted to voter conf

usi on in at- large elec tio ns. They als o sub mi tte d elec tio n res ults fr om 1996 to 2011,
m i n utes fr om variou s City Counci l me etin gs in wh ich the mo dif icat ion wa s dis cus se d, cor res pond ence wi th the DO J regar ding pr ecle aranc e of the sin gle-m em ber dis tri c t sys tem , and variou s new sp ape r art icle s on the pr opo se d mo dif icat ion. Mo rto n sub mi tte d no evide nce. 7 Case: 12-50131 Document: 00511787730 Page: 7 Date Filed: 03/14/2012No. 12-50131

cases, this autho rity is constrained when acting pursuant to an appellate court’s

5 mandate

. Indeed, the City and LULAC have not provided any authority that would permi t t h e d istrict court to approve a temporary modification of the Consent Decree while operating under the LUL AC I mandate. Nor have we f o u n d any such cases. Whatever authority the district court may have had to order an interim or temporary mo d i f i cation of the Consent Decree prior to LULAC I certai n l y di sappeared after the mandate was issued. See, e.g. , Gen. Universal Sys., Inc. v. HAL, Inc. , 500 F.3d 444, 453 (5th C i r . 2 0 0 7 ) ( “‘The mandate rule requires a district court on remand to effect our mandate and to do nothing else.’”) (citation omitted). The district court was therefore not free to grant the City and LULAC’s temporary modification request. Although the district court had limited time to con d uct the proceedings requi r e d b y LULAC I before the May 2012 election, it was not free to depart 6 from that mandate. If the p a rties believed that there was insufficient time in which to comply with LULAC I , they could have sought to modify the mandate. 7

See Ma han v. Ho we ll , 410 U. S. 315, 3 32 (197 3) (“App lica tio n of inte rim rem edi al 5 tec hnique s in voting right s cas es has largel y been lef t to the dis tri ct cour ts .” ); see also Bran ch
v. Smi th , 5 3 8 U

. S

. 254, 265 (200 3); Lopez v. Mo ntere y Cnty., Cal ., 519 U. S. 9, 18 (199 6); Reyn olds v. Sim s , 377 U. S. 533, 585 (196 4); Cam pos v. City of Ho uston , 968 F.2d 446, 450 (5t h Cir. 1992) (ho ldi ng that dis tri ct cour t “had the pow er to grant so me for m of inte rim reli ef” for the Ho ust on City Counci l e lect ions , pend ing anunr es olvedS ect ion 2 Vo ting Rights Ac t cas e and in the abs enceof

a Sec tio n 5 pr ecle aredr edi st ric ting plan).
As note d above, the man dat e wa s not iss ued until De cem ber 29, 2011, and the dis tri ct 6
cour t st ates that it did not rec eive the man dat e until January 9, 2012. The pr e-e lect ion fil ing dea dli ne forCit y Counc il cand idat es w as se t forFeb ruary 4, 201 2. Fift h Circ uit Rule 41.2 pr o vi d e s t h at “[ o]n ce iss ued a man dat e wi ll not be rec alled 7 excep t to pr event injus tic e.” In acc ord ance wi th that rule , “[ o]n a n u m b e r o f o c cas ions , this
cour t has rec alled and mo dif ied its man dat es .” Ha ll v. Whi te, Ge tgey, Me yer Co., LPA , 465 F.3d 587, 593 (5t h Cir. 2006) (f oot note om itt ed)

. This court “has the innat e pow er to rec all and then rela x its m andat e on ap rop er sho wi ng. The mo re ord erly wa y is . . . forthe par ty aff ect ed to for mal ly pet itio n this Court to rela x or mo dif y its man dat e to per mi t the tri al cour t to tak e the requ es ted act ion. ” Di c k e rs o n v . Cont’l Oi l Co. , 476 F.2d 635, 636 (5th Cir. 1973) (c itat ion
om itt ed) ; see also Ha ll , 465 F.3d at 593 n.21 (c itin g Di cke rso n). A pane l may rec all and ame nd a man dat e if “th e cir cum st ance s wa rra nt devia tio n fr om the rehe aring pr oce dur e a n d t h e 8 Case: 12-50131 Document: 00511787730 Page: 8 Date Filed: 03/14/2012No. 12-50131

They failed to do so, and therefore had no alternative but to abide b y th e mandate’s instructions. Because the district court did not comply with the mandate o f L ULAC I and was without authority to order a temporary modificatio n o f the Consent Decree, we conclude that the Order was erroneous. We ther e f o r e v a c ate the O r d e r a nd remand this case to the district court. On remand, we direct the district court to fully comply with the LULAC I mandate, and issue a final decision on the requested permanent modification of the Consent Decree no lat er than May 31, 2012. It goes w i t h o u t saying that sooner would be better. Any subsequent appeal or interim motions will be heard by this panel. 2. Election Schedule Texas law provides that general elections may be held on either the second Saturday in May or the first Tuesday after the first Monday in November. T E X

. E L E C

. C O D E § 41.001(a). Although City Council elections are presently set f o r May 12, 2012, it will not be possible for the district court to comply with the LULAC I manda t e a n d our mandate before that date. Therefore, at the suggestion of the City and LULAC, we or d e r that the election for City Council b e h e l d on November 6, 2012, as provided by Section 41.001(a)(3) of the Texas Election Code. On remand, the district court should consu l t w i t h City election officials to determine any changes to pr e - e l e ction deadlines that may be
necessary in advance of the November 6, 2012 election. Upon motion by the City 8

equit ies of t h e cas e requ ire rec all and ref orm atio n of a man dat e.” In re Incident Abo ar d the D. B. Oc ea n King on Aug. 30, 1980 , 877 F.2d 322, 327 (5t h Cir. 1989 ) (f o o t n o t e a nd inte rnal quot atio n mar ks om itt ed) ; id. (r eco gnizing an app ellat e cour t’s pow er to “re call and amend a man dat e t o p reventinjust ice” ).
The par tie s have ide ntif ied the fol low ing pr e-e lect ion dat es that wi ll re quire alte rat ion 8 for the Novem ber 6 elec tio n: (1) dea dli ne for cand idat e fil ing, (2) dat e upon wh ich cand idat es dr aw for ballo t pos itio n, (3) dea dli ne for cand idat e wi thd raw al fr om the ballo t, (4) dea dli ne for mai ling of ballo ts to mi lita ry and overs eas voter s, (5) dat e for publ ic logic and acc urac y tes ting for earl y voting, ( 6) d e adli ne for voter s to app ly for a ballo t to vote by mai l, and (7) dat e for 9 Case: 12-50131 Document: 00511787730 Page: 9 Date Filed: 03/14/2012No. 12-50131

and after any hearing that is advisable, the district court should exercise its authority to order any necessary changes to those deadlines. 3. Other Relief Morton seeks attorneys’ fees as a s a nction for the City and LULAC’s

a c t i o n s in this case, pursuant to our inherent authority or under 28 U.S.C. § 1927. Morton also requests that we reassign this case to a different district judge in the Western District of Texas upon remand. We deny Morton’s request for attorneys’ fees. Such fees may be warranted where we find conduct to be in bad faith, fraudulent, unreasonable, or otherwise d e s e rving of sanction. See Boland Marine & Mfg. Co. v. Rihner , 41 F.3d 9 9 7 , 1005 (5th Cir. 1995) (“A c o u r t s h ould invoke its inherent power to award attorney’s fees only when it finds that ‘fraud has been practiced upon it, or that the very temple of justice has been defiled.’”) (quoting Chambers v. NASCO, Inc. , 501 U.S. 32, 46 (1991)); Elliott v. Tilton , 64 F.3d 213, 217 (5th Cir. 1995); see also 28 U.S.C. § 1927 (stating that attorney’s fees are warranted where “[a]ny

a t t orney . . . so multiplies the proceedings in any case unreasonably and vexatiously”). While we disagree with their legal arguments, we have no reason to conclude that the City and LULA C h av e n ot litigated this matter in good faith. Attorneys’ fees are therefore unwarranted. We also deny Morton’s request for reassignme n t. Although we have the authority to order reassignm e n t , s e e Johnson v. Sawyer , 120 F.3d 1307, 1333 (5th Cir. 1997) , w e have emphasized that it is an “extraordinary power that is rarely invoked.” In re DaimlerChrysler Corp. , 294 F.3d 697, 701 (5th Cir. 2002) (citation and internal quotation m a r k s omitted). We have explained that reassignment may be authorized where “the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her

publ ic logicandac cur acy tes ting forel ect ion day voting. 10 Case: 12-50131 Document: 00511787730 Page: 10 Date Filed: 03/14/2012No. 12-50131

mind previously-expressed view s o r f indings determined to be erroneous or based on evidence that must be rejected,” or where “reassignment is advisable to preserve the appearance of justice.” Id. at 700-01 (citation omitted). We have also ordered reassignment where “the facts might reasonably cause an objective observer to question [the judge’s] impartiality.” Id. at 701 (alteration in original) (citation and internal quotation marks omitted). Neit h e r s t andard is satisfied here. Morton has not provided any evidence that might lead us to question the district court’s impartiality; he points only to erroneous legal decisions. Morton also contends that the district court has “at times expressed hostility” towards him, but we find no evidence of such hostility. IV. CONCLUSION For the foregoing reasons, we VACATE the Order of the district court entered February 3, 2012 and REMAND this case to the district court for further proceedings consistent with LULAC I and with thi s o pinion. We direct the district court to issue a final decision on the requested permanent modification of the Consent Decree no later than May 31, 2012. We also DENY M o r t o n ’ s request for attorneys’ fees, and DENY M o rton’s request to reassign this case upon remand. We order that the City Council election shall be held on November 6, 2012,
p u r s u ant to Section 41.001(a)(3) of the Texas Election Code, and direct the district court to order any necessary modifications to pre-election deadlines. Any subsequent appeal or interim motions will be heard by this panel. Morton’s Motion for Stay is DENIED AS MOOT. The mandate shall issue forthwith.

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