Warren E. Burger: We'll hear arguments next in 73-1475, Harris County Commissioners against Richard E. Moore. Mr. Landry, I think you may proceed whenever you're ready.
Edward J. Landry: Mr. Chief Justice and may it please the Court. This case is on appeal from a three-judge court decision of the Southern District of Texas declaring first a Texas statute Article 2351 1/2 (c) unconstitutional and enjoining so much of a Commissioner's Court redistricting order which had the necessary effect under the statute of terminating the terms of office of five officeholders. Three of whom were justices of the peace and two constables. The facts of the case briefly are as follows: On March 12, 1973 the Commissioners Court of Harris County appointed a committee of nine persons to study the redistricting of both the county's commissioner precincts as well as its justice of the peace precincts. That committee consisted of a County Commissioner who himself had served for ten years in the state legislature and on the committee in the legislature for the redistricting measures which had been taken by the Texas legislature during his tenure in office. It also includes a justice of the peace, a constable, a Republican or a member of the Republican Party in the county, a member of the Democratic Party in the county, a Negro, a Mexican-American and a woman as well as another or as well a University of Houston professor who had some expertise in redistricting and I might also add that the County Commissioner was and is a professor at the University of St. Thomas in Houston and heads the Political Science Department. After more than two months of study of the necessity for redistricting in Harris County, that committee recommended to the Commissioners Court a redistricting plan for the Commissioners Court which the Commissioners Court implemented and it met the strict requirements of Avery.
Potter Stewart: How large was that committee?
Edward J. Landry: A committee of nine, Your Honor. Two weeks after that it recommended a redistricting plan for the justices of the peace precinct and the Commissioners Court shortly thereafter with a plan somewhat different from the plan recommended by the committee and it was primarily authored by the Commissioner on the Commissioners Court and who had served on the committee, implemented the plan of redistricting of the justice of the peace precincts. Now, the justice of the peace precincts prior to the redistricting plan being put into effect had two justices in one precinct and one justice in each of the other precincts.
Harry A. Blackmun: Incidentally, these are staggered terms, are they not?
Edward J. Landry: I beg your pardon, Your Honor.
Harry A. Blackmun: They're staggered terms, are they not?
Edward J. Landry: Yes, Your Honor, they are.
Harry A. Blackmun: Do some of them expire in any event on December 31 of this year?
Edward J. Landry: And some on December 31 of 1976, Your Honor.
Harry A. Blackmun: Will the case as to them possibly become moot then?
Edward J. Landry: It would not become moot as to the recovery of the emoluments of the office from the time that they were ousted from office pursuant to the redistricting to the end of the term of the office.
Harry A. Blackmun: The new appointees have qualified and served, have they, and been paid?
Edward J. Landry: Yes, Your Honor. They have.
Warren E. Burger: We'll resume there after lunch.
Edward J. Landry: Thank you.
Warren E. Burger: You may continue, Mr. Landry.
Edward J. Landry: Mr. Chief Justice and may it please the Court. The Commissioners Court's order of redistricting again was passed by that Court on June 28th, 1973 to become effective July 1, 1973. In many reasons stated by the three Commissioners who formed the three-nine majority in effecting this redistricting order are detailed at page 5 of the appellant's brief and of course the primary reason for the redistricting in question was the gross disparities existing between various precincts as they existed prior to the redistricting action in question and I would invite the Court's attention to exhibits E and F of the appellant's brief which sets out on page 58, the precinct met as it existed before the redistricting in question and on Page 59, the redistricting or redistricted precincts after the order was passed. The Court will know that in the precincts 4, 5, 6 and 7 there were population counts of 81,000, 6,900, 8,800, 11,976 for 4, 5, 6, and 7. As a result of the redistricting and the attempt by the commissioners to make the precincts more reasonably apportioned of necessity required the combining of these precincts to make up one precinct and that is what happened in coming up with new precinct four as the Court will note on the opposite page, page 59 and there would be no problem except that Article 2351 1/2 (c) which is the statute in question here provides that following a redistricting where you have such a situation just as this, where as a result of combining precincts to form one precinct and you have an excess number or surplusage of either JP's or constables for the limited number of positions in the new precinct and in this case we had only two authorized JP's and one constable. We ended up as a result of necessarily combining these various precincts to come up with a more reasonably apportioned precinct, three justices of the peace to fill the two justice positions and two constables to fill the one constable position. As a result of that, the Commissioners Court under the statute Article 2355, first 2351 1/2 (c) declares these positions in the new precinct vacant as a result of that factual situation and as a result of that, the Commissioners Court is authorized to fill those vacancies which it proceeded to do. It appointed one of the three justices of the peace of the former precincts to fill the one of the two new positions and one of the constables to fill the one constable position. It reached outside of the area of the former constables or justices of the peace to fill the other justice position and it chose a lawyer to do that with. The justice of the peace of the former precinct that it chose to fill the other position was one with some 16-1/2 year service as a justice of the peace of the former precinct. Now, as a result of the effect of the statute and the effect of these facts that meant that these five officeholders, the appellees in this case had their terms of office terminated. The two constables in the course, had some 2-1/2 years to run until December 31, 1976 and the three justices of the peace had until December 31 of this year and which to fill out their terms of office. They, as a result, of this action of redistricting and the effect of 2351 1/2 (c) on the day that the redistricting order was passed filed suit in State District Court in Harris County, Texas and on the following day I would amend that one of the five individual officers filed a suit and that was appellee Moore. On the following day, the District Court denied a temporary injunction and without further prosecuting their remedy in the state Courts, they then filed suit in the federal court on July 20th of 1973 and --
Harry A. Blackmun: Mr. Edward J. Landry, do you think the real problem here is that these people were not allowed to fill out their terms, serve out their terms?
Edward J. Landry: I think that is solely their complaint, Your Honor.
Harry A. Blackmun: If that hadn't been done, do you think you would have had no lawsuit?
Edward J. Landry: I think not whatever but of course, I cannot.
Harry A. Blackmun: I should ask the other side but how do you explain the difference between this statute and the one that concerns the commissioners as such which specifically as I recall it permits them to serve out the term?
Edward J. Landry: I think that contention was answered, Your Honor in the case of Whitmarsh against Buckley which of course you set out in our brief. In Whitmarsh against Buckley, the Court explained in distinguishing the right of a commissioner to continue to serve after a redistricting which places his residence outside of the precinct from which he was elected and a situation where there were school district trustees who by reason of de-annexation had been placed outside of the school district. They Court of Civil Appeals in that case declared that there was a valid distinction. Commissioners are not precinct officers. They are not elected from the precinct in which they are to reside to represent only the people who reside in that precinct. They are elected to represent the people of the entire county whereas in this case the constable and the two justices of the peace of each precinct are elected to represent only the people in the particular precinct in which they are elected to serve.
Harry A. Blackmun: Well, is that definitively determined as a matter of state law?
Edward J. Landry: Not with respect to the difference between justices of the peace and constables as opposed to county commissioners, Your Honor and of course that is one of the supporting basis upon which we feel that the District Court should have abstained in this particular case to give the state courts, the opportunity to decide that very question because one of the major contentions of the appellees in this case is that they are truly county officers under the state constitutional provision Article 16, Section 14 and that as a result of being classed as county officers whose residence need only be within the county as opposed to residence within a precinct then under 2351 1/2 they should not be confined to residency within the precinct and 2351 1/2 would be invalid or unconstitutional under state constitutional Article 16, Section 14.
William J. Brennan, Jr.: And the result if that were so, Mr. Landry would be what for these petitioners?
Edward J. Landry: They would be able to stay in office, Your Honor. They would -- I would invite the Court to look at the precinct map again. We had justices of the peace of precincts 5, 6, and 7 who were in effect ousted from office by effect the statute. Now, those individuals would simply go to the new precincts of those same numbers on the opposite page and they would then be able to fill out their terms of office but that question has never been answered by the State Court.
Potter Stewart: But that would not satisfy the voter's claim in this case, would it? The voters are also -- this case also has its parties' voters who claim that they voted to have these people as their justice of the peace, for them, for that jurisdiction?
Edward J. Landry: That is one of the basis on which the District Court found that the statute was unconstitutional, Your Honor but we would submit --
Potter Stewart: Just keeping this people on office and giving them their pay and even allowing them to sit in the new precincts 5, 6 and 7 would not satisfy the voter's claim, would it?
Edward J. Landry: No, it would not but the fact of the matter is if the District Court's view is correct with regard to that line of reasoning you could never have a redistricting which changed the line to put a resident or citizen outside of the precinct of that in which he elected an officer. (Voice overlap) That's right.
Lewis F. Powell, Jr.: Are you suggesting that the three-judge court as to the voter's claim in effect said their vote was frustrated by the application of the statute?
Edward J. Landry: I believe that that is what the three-judge court said, Your Honor.
Lewis F. Powell, Jr.: And what is that. Perhaps I should ask the other side but would that mean that for example, suppose the legislate – there was a position and someone was elected to it in a legislature of policy decision, the voters again would be frustrated, would they?
Edward J. Landry: Well, in that case, I suppose the voters would be frustrated but we submit that the state definitely has that power within its own internal political structure.
Lewis F. Powell, Jr.: But this is no different in terms of the voters.
Edward J. Landry: That's correct. There is no contractual relationship between the voters and the officer or as far as that goes between the officer and the state.
William J. Brennan, Jr.: The three-judge court must have held that there was a federal right of these voters above. Some constitutionally -- federal constitutionally protected right of theirs to vote for state officers?
Edward J. Landry: Well, I think what the Court did. I think the Court said that the rights of the voters and the officers in question were intertwined and any jocking of the rights of the officers was a jocking of the rights of the voters.
Potter Stewart: While I have you interrupted Mr. Landry. Looking again, I just want to see how the statute operates. Suppose on the redistricting, there is a district in which none of the former JP's or constables leave, then what happens?
Edward J. Landry: Well, under the statute Your Honor. That particular precinct has a vacancy or vacancies as to those positions and the Commissioners Court then proceeds to appoint.
Potter Stewart: Now, and where you have as you do as I understand in the redistrict at four and you have places only for two JP's and one constable?
Edward J. Landry: That is correct. As all of these new precincts on that, Your Honor.
Potter Stewart: And then for, you have actually resident there. How many JP's?
Edward J. Landry: Three justices of the peace and two constables.
Potter Stewart: And two constables. Now, do the resident JP's, two resident JP's they lose out, do they? Everyone loses out?
Edward J. Landry: No, the three justices of the peace, Your Honor for the two positions authorized obviously they all three cannot fill two positions.
Potter Stewart: Right.
Edward J. Landry: So, the statute says that those three -- two positions are to be considered vacated.
Potter Stewart: That's what I mean. So none of the – it would only be if you had two JP's and one constable living in the district after the redistricting that this problem would not arise.
Edward J. Landry: That's correct. The statute would then require these two JP's or entitle two JP's to fill out their terms of office and would entitle the of course the constable to fill out his office.
Potter Stewart: Then I correctly read that the three-judge court, do I, by saying that the reason there's an invidious discrimination here is between no situations.
Edward J. Landry: That's correct.
Potter Stewart: Where you have all the three places to fill and we have only three people there, they get the jobs whereas if you have three places to fill and five people in the district, nobody gets the jobs.
Edward J. Landry: That's correct, Your Honor. The District Court held that because of this differing treatment that that was invidious discrimination and we submit that the state does in fact have a compelling state interest which sustains this statute and this difference of treatment between officers in one precinct and officers in another.
Potter Stewart: Now, incidentally, are justices of the peace, judicial officers under Texas law?
Edward J. Landry: They perform judicial duties, yes Your Honor, they handled trials. They have jurisdiction of cases, in civil cases up to $200.
Warren E. Burger: Do you think that they are judicial officers under our cases?
Edward J. Landry: Your Honor, I've no point here, frankly saying I do not know the answer to that question.
Potter Stewart: Of course you know that we have not applied the Reynolds v. Sims principles to election of judicial officers.
Edward J. Landry: I must have missed that case entirely, Your Honor. With regard --
Byron R. White: You may have just thought of -– you haven't run in to any case of applying it?
Edward J. Landry: No, I have not. We have not and we submit that the Reynolds against Sims rule of the one man, one vote of course simply has no application in this kind of a precinct or this kind of a district.
Lewis F. Powell, Jr.: Or are you suggesting that perhaps as to the justices of the peace. I don't know whether that would that apply to the constable.
Edward J. Landry: Well, of course, constables have jurisdiction outside of their precinct. They can serve papers outside of their precinct but the fact of the matter is by law, they are required to reside within their precinct as are the justices of the peace. But we submit that the reason for the compelling state interest which would sustain this kind of a statute and sustain the differing kind of treatment between officers of the same class is Texas' requirement of residency within the precinct and that is the thing that distinguishes, of course, the different treatment between justices of the peace and constables on the one hand and county commissioners on the other following a redistricting of the precincts.
Lewis F. Powell, Jr.: But Justice Blackmun asked you before lunch whether one or two of the terms or one of these may expire December 31, are they eligible for re-election?
Edward J. Landry: They were eligible for the general election this year, Your Honor. In fact, one of the appellees in this case Judge Zaboroski ran this year after having been ousted as a result of the redistricting.
Lewis F. Powell, Jr.: And did he win?
Edward J. Landry: No, sir he did not. Now, the three justices of the peace of course, their terms end December 31 of this year. The two constables have two more years following December 31 of this year.
Byron R. White: What does the three-judge court mean by a convenient redistricting?
Edward J. Landry: Well, that is the term set out in the constitutional Article 5, -- state constitutional Article 5, Section 18 which is the authority, Your Honor, for the redistricting by a Commissioners Court of its county's justice precincts.
Byron R. White: But why are they called -- does it have some special meaning of the convenience?
Edward J. Landry: Well, the phrase of course for the convenience of the people and, I think probably, this Court went into great study and great deliberation of that phrase in Avery against Midland County and of course in Avery against Midland County --
Byron R. White: So, it is convenient?
Edward J. Landry: Well, convenience of course, in terms of justice of the peace precincts, now that this Court has decided that one vote, -- one man, one vote applies to Commissioners Court. Convenience of the people would include primarily, of course, population, and there's no question but that there was a compelling need to redistrict in this case in light of the gross disparities in population of the old precincts. In addition to that, there would be the work load or the amount of services required by a particular area. For instance, in one precinct there may well be a greater crime rate which would require greater work load of the constable as well as the two justices of the peace. There is of course the geography, the matter of square mileage. There are any number of factors which the Commissioners Court would consider in arriving at the shape and the size of the new precincts of these kind of new precincts. But in addition to intending that the state does indeed have a compelling state interest to sustain the particular statute in question that is the precinct residency requirement of these various offices and we of course cited and quoted from in our brief the case of Hadnott against Amos, an Alabama case involving circuit judges of that state which this Court affirmed. In addition to that compelling interest, we would submit that the District Court should have abstained in this particular case for the reason that there are state constitutional questions, state constitutional considerations which if decided by the Texas Supreme Court would give all of the -- in appellees' favor would avoid the federal constitutional question. Thank you.
Warren E. Burger: Thank you, Mr. Landry. Mr. Friloux.
C. Anthony Friloux, Jr.: Mr. Chief Justice and may it please the Court. May I just state one short comment in regard to the totality of the atmosphere of this redistricting order, Your Honors and then get very specifically holding in on the constitutional question. This redistricting order which took place by three-two vote of a democrat majority of three democrats on the Commissioners Court took place in quite an unusual set of circumstances. There was a committee that has been mentioned by the counsel for the petitioner who had supposedly met and they came up with seven or eight plans. On the night or the eve of the date in which this order was passed, Commissioner Bass by himself according to the testimony in the appendices here designed a new plan at night, did not inform the other commissioners of it, walked into the Court and presented and they passed it 3-2 to go into effect three days later. I represent Judge Zaboroski who was only the Republican justice of the peace elected at that time in Harris County since reconstruction days. In our pleadings, when we decided to seek the forum proper to the relief at which we felt we were entitled, we filed suit under both civil rights and of statutes under those in Title 42, 1983, 1985, and Title 28. We filed also for the dilution in the abasement of the vote of the class of voters within the respective precincts and the unequal treatment of the voters in the same class and particularly for political discrimination against the minority party in the county habitually, traditionally and till date controlled by the Democrat Party and even more fundamentally the unusual and unbelievable circumstance at this time and space and at this time in circumstance, are the use of racial discrimination to create enclaves within the city which is an admission in the deposition testimony in the appendices that they were setting up these racial enclaves to assure that certain members of certain and only certain ethnic and racial groups would be able to be elected at office and to succeed themselves in office and of course then malapportionment. The precincts were not, in fact, brought back into line with any serious attempt that the Avery rule of “one man, one vote” and now the disparity is still is bad as it was.
William H. Rehnquist: Well, it isn't as bad at it was, is it?
C. Anthony Friloux, Jr.: It wasn't as bad but it's still substantially out of the line but I think our concept as it are evolving today, Your Honor.
William H. Rehnquist: But you -- you didn't complain that that one was more poorly apportioned than it is not?
C. Anthony Friloux, Jr.: I don't understand the question. We didn't complain?
William H. Rehnquist: Well, you say one of the grounds of your actions for the three-judge District Court was malapportionment.
C. Anthony Friloux, Jr.: Yes.
William H. Rehnquist: And yet you never complained of the even more poorly apportioned justice districts that existed before the commissioners took this action.
C. Anthony Friloux, Jr.: Your Honor, when I was employed in this case I immediately complained about as it now exists because it still I think significantly out of line with the intent of the Courts' decisions in all of the cases requisite to apportionment.
Lewis F. Powell, Jr.: Do you mean you asked that the redistricting be set aside?
C. Anthony Friloux, Jr.: I sure did, Your Honor. We asked that the redistricting be set aside on the basis that the statute was facially and in its application unconstitutional.
William J. Brennan, Jr.: Under what, well excuse me, I'm just trying to get this clear. I thought all you were after was to get these appellees' jobs back.
C. Anthony Friloux, Jr.: Not at all, Your Honor. We're asking for damages, for violation of civil rights, substantial damages. We're asking for damages based on the political discrimination under the Fifteenth Amendment. Our petition is quite extensive.
Lewis F. Powell, Jr.: I understand that but it's all damages. You didn't ask that they be required to redo this plan on a one man, one vote basis, did you?
C. Anthony Friloux, Jr.: We've raised it that this is unconstitutional because --
Lewis F. Powell, Jr.: Did you ask for that remedy?
C. Anthony Friloux, Jr.: No, I didn't ask for the remedy that with the Court issue, an order ordering redistricting. I think that should be left to the Commissioners Court to do it as historically has been done, Your Honor. Now, in addressing myself to the question of moot --
Byron R. White: What federal constitutional significance do you think this disparity is?
C. Anthony Friloux, Jr.: It's a dilution of the vote for one thing, Your Honor of voters in the same class.
Byron R. White: What cases here would indicate that this so-called malapportionment of the JP districts would raise a federal question.
C. Anthony Friloux, Jr.: Perhaps I can answer it this way. First, the state has no obligation whatever upon itself to determine that these offices be done by election. They have an absolute right to have them appointed or any manner in which they presume as I understand the law. In this case, having assumed and given to the citizens of the state, the right to select these people by election even though they had an option not to do so. At that point, the Fourteenth Amendment protection would come into being and we say that when you have citizens in one precinct whose vote is not equally effective, whose vote is diluted then you have the Fourteenth Amendment coming into play.
Lewis F. Powell, Jr.: But if your clients have only been new clients for only two in number JP's.
C. Anthony Friloux, Jr.: Yes, Your Honor.
Lewis F. Powell, Jr.: And they both lived in the redistricted four and you had another client, a single client who was a constable and he lived in the redistricting four, you wouldn't be here, would you?
C. Anthony Friloux, Jr.: Unless some other one who was thrown out in employee -- (Voice Overlap)
Lewis F. Powell, Jr.: No, no, no. Those who are you --
C. Anthony Friloux, Jr.: Those people would not be here.
Lewis F. Powell, Jr.: That's right.
C. Anthony Friloux, Jr.: Because they would not have been abused.
Lewis F. Powell, Jr.: Well, if that were the case, you would not have been seeking a redistricting, a redoing of the redistricting plan, would you?
C. Anthony Friloux, Jr.: That's right because those particular people would have not complained if they had not been harmed but those who came under the alternate provisions would have been harmed and they would have been here seeking this relief. There's no way you can take this statute and look at it and justify the fact that people within the same class are treated differently and officeholders within the same class are treated differently.
William H. Rehnquist: Justice White asked you a moment ago what cases from this Court you rely on to raise the federal question as to the districting requirements, what federal -- what case of this Court do you rely on?
C. Anthony Friloux, Jr.: You mean so far as asking them to redistrict, Your Honor?
William H. Rehnquist: Yes.
C. Anthony Friloux, Jr.: We did not ask for redistricting.
William H. Rehnquist: Well, but you say there is the federal or constitutional malapportionment claim which I understand you are asserting, what cases of this Court you rely on to support it?
C. Anthony Friloux, Jr.: I think the same Avery and I think Reynolds both Your Honor and I think the same ruling that applied to commissioners would apply here once the Fourteenth Amendment attaches. If the Fourteenth Amendment protections exist, so that in truth and in fact the right to vote becomes absolute then I think the right to have that vote counted equally follows in natural course. Now, there have been no decisions on this level as far as I can determine from the law. The Court has ruled definitively on the Commissioners Court. Now we are in the subcomponent, sub-political component of the state and the county. The state has seen fit to confer upon the citizens of that particular subdivision, the right to vote as a method in which they will select those people who performed these particular duties whether administrative, judicial or legislative on that level. Once having done that then we say that the Fourteenth Amendment protections come in and when they come in, I think they carry inherently with them under these decisions, the fact that they should be counted equally. They should not be diluted. They should not be abrogated as this statute does. It allows those who vote for one man to have the benefit of this man serving in office. On the same time at the same circumstance, it says to another group of people, we're sorry but you voted for this man, he may still have two years to go what my client did in office but we're not going to give you your choice. We're going to put this man that lived in the next precinct who you never have a choice to vote for in your precinct and just absolutely destroy the vote in that case. And in the third case where everybody voted for them and then that they still relived within the district, all three of them were there, they declared everybody vacant and then appoint three new people who they did in this case most of these appointments were political appointees, who are friends of this majority court. Now, the statute and I'd liked to address myself to the statute itself because really the basic question is whether the statute itself within its own provisions sows, has the seeds of its own destruction, that is whether the provisions of the statute on its face is -- and creates.
Thurgood Marshall: May I ask this one question.
C. Anthony Friloux, Jr.: Yes, sir.
Thurgood Marshall: Justice of the peace judicial officers in Texas?
C. Anthony Friloux, Jr.: They performed judicial function. They are county officers and they do -- it's never been defined as a pure judicial office. It's not a Court of record but they do judicial duties and I would think in a judicial construction of it, it would probably be determined that it was judicial in nature.
Thurgood Marshall: And they are covered to the same extent as other elected officers and so far as this Court is concerned.
C. Anthony Friloux, Jr.: Yes, Your Honor.
Thurgood Marshall: And the case being what?
C. Anthony Friloux, Jr.: Insofar as judicial office is being covered, in regard to Fourteenth Amendment rights Your Honor. I think the fact that the Commissioners Court which is a Court would provide some and the decisions which were returned in that case would provide some authority for it now. I didn't anticipate this question and I can't give you specific decision of this Court which reaches down into this level and says that a justice of the peace of the type we have in Texas is covered by a Supreme Court decision which says that this must be so. I don't think it's been met by this Court on this level and this is what I think we need to address ourselves to.
Lewis F. Powell, Jr.: You have used the term Commissioners Court two or three times, is this an actual Court or is it something in the southern sense or the New England sense, it's different for a --
C. Anthony Friloux, Jr.: Well, it's called the Commissioners Court. It sits as a Court. Its decisions are appealable in a Court manner but it has legislative and administrative duties. It's a hybrid, Your Honor.
Byron R. White: Does it actually decide litigated cases?
C. Anthony Friloux, Jr.: No, sir but the county judge himself does hear cases but the Court as an entity makes decisions. It does not sit in a normal litigation type circumstances all by its called the Court but its primary duty is legislative administrative as I interpret it.
Potter Stewart: In other states it's generally called the county commissioners, isn't it?
C. Anthony Friloux, Jr.: Yes, Your Honor, I think this is an old historical term that has been used in its --
Potter Stewart: In Texas and in Missouri and maybe some other states call them the county court.
C. Anthony Friloux, Jr.: Right.
Harry A. Blackmun: This is why in Massachusetts it's referred to as the Supreme Judicial Court?
C. Anthony Friloux, Jr.: Yes, Your Honor, I have a very limited time because of split argument. I did want to address myself to one of the first questions I asked as to my client and several others as to whether the relief sought would become moot and I would call the Court's attention to the Texas Constitution itself Article 5, Section 18 wherein it sets out the absolute authority and the mandate of authority to the Commissioners Court and it provides in each precinct there should be one elected justice of the peace and one constable. Each of whom shall hold this office for a four-year period. It says for four years in common and until his successor shall have been elected and qualified. Now, in regard to whether or not this becomes moot, if this statute is found facially unconstitutional then the officeholders unlawfully removed from office who are still under the Constitution of Texas itself entitled to and/or the lawful office and they can remain in that position until the county commissioners see fit either to fill that vacancy or to provide an election as the Constitution says at the next general election, so its' not a moot question. Now, the question of whether or not it should be remanded because of the nature of the office. Article 5, Section 24 is definitive in my judgment. It says removal of county officers, in other words, the Constitution of the state of Texas at its inception defined who were county officers and it says county judges, county attorneys, clerks of a district and county courts, justice of the peace, constables and other county officers including justices and constables may be removed and they set the method of removal and nowhere does the Constitution say that they can be removed by any other body for any other purpose than the constitutional reasons. And what we have here with the statute setting by legislative edict, additional manners of removal. It also sets by legislative edict, the manner in which the justices shall be left in office or taken out of office, none of which conforms to the removal section of the Constitution and none of which is consistent with it but rather in contravention of it. Now, the primary objection to this statute on its face is that where three people of the same class were elected officials. My client who was removed from office, client B who remained by happenstance or by deliberation when the lines were drawn, which we must not ignore the political realities of life in this case, or third where two people who was there and remained but had to go out because two of them resided in the precinct where only one went, so they both were declared vacant. So, we have three people all elected justices of the peace under this order who were treated in three entirely different ways. One remains in office, two are removed and then of course the same thing applies to the voters. There is no question whether voters in one precinct vote for their man and then find out that this could happen again next week, incidentally they have the power to redistrict at any time. The only provision is that very, very general statement for the convenience of the people and the reasons given in this case by the appellant, petitioner here simply were after the fact reasons. They were specified publicly but in truth and in fact they did little to accomplish what they wanted except in two areas. They got the people they wanted in office and they created the minority, ethnic enclaves of two groups that would politically help them in office which is graphically reflected and I don't think can be controverted in the appendices of the deposition of the majority commissioners. Now, there's one of the thing I'd like to call the Court's attention to. My time is just about up and that is the day before the three-judge court ruled, the Texas Attorney General who is not here defending this case, even though it has statewide application to every county in Texas ruled in an advisory opinion and its only advisory does not have the standing of law that justices of the peace and constable was elected to full term are entitled to serve the entire four years and a redistricting of that precincts by the County Commissioners Court resulting in a justice or constable not living in his precinct does not vacate his office. Obviously, they read the constitutional provisions are addressed to the Court, also the rulings in relation to the Commissioners Court in an attempt to have equal treatment of officer within the same area. And we say because of these three variances both as to voters and as to persons within the same class that this statute on its face, in itself, is unconstitutional.
Hugo L. Black: If the Attorney General takes that position, why isn't he here?
C. Anthony Friloux, Jr.: I don't know, Your Honor. We requested, I think one of my co-counsel requested that he would be here and he declined.
Potter Stewart: Well, if the Attorney General say, if that opinion of the Attorney Generals had turned out to be the law of Texas then you wouldn't have the same lawsuit you have now at all, would you?
C. Anthony Friloux, Jr.: Not in the future, Your Honor.
Potter Stewart: And that suggests that the District Court should have at least abstained to find out what the law of Texas is.
C. Anthony Friloux, Jr.: No, because they have historically ignored generally the opinion. These are advisory question and answer sessions. We could not get the relief sought, Your Honor. In a Texas Court, in any type of reasonable or equitable time, they had no right to give us a relief under Civil Rights Act. They had never addressed themselves or had never -- there are no statutes which would have allowed the political discrimination acts to be brought up. They have no declaratory act of a similar nature of the federal court to go directly to the Texas Supreme Court, although one of the respondents tried and was denied where they had an opportunity and refused it. All they have is a right of mandamus to direct ministerial acts in those perfunctory tasks. So we had to either come to federal court with substantial questions with a chance for resolution or stand by and go to the District Court. It takes 16 months in Houston to have a case heard, go to the Court of Appeals, another four to six months, go to the Texas Supreme Court hoping that somewhere within the next three to four years we might seek relief all of time we had no equitable.
Potter Stewart: Now, but the District Court issued a decree on the hypothesis of Texas law provided for one thing and you have now just told us that that's far from clear.
C. Anthony Friloux, Jr.: What is that, Your Honor?
Potter Stewart: Whether any federal court can decide a case if the state law is unclear?
C. Anthony Friloux, Jr.: I don't think the statute. Our position is the statute on its face is not unclear.
Byron R. White: But you told us that the Attorney General at the State of Texas told us that it meant something quite different.
C. Anthony Friloux, Jr.: Well, this is an opinion, Your Honor. That I think the Attorney General felt that because and he's gave it in the face of --
Byron R. White: Right.
C. Anthony Friloux, Jr.: Of the statute, I realized that.
Warren E. Burger: But at least he introduced the conclusion.
C. Anthony Friloux, Jr.: Simply I wished he hadn't because we have the matter in litigation but he was not aware, I'm sure of the fact that he was before a three-judge federal court. Again, it has no legal bearing on the State of Texas and significantly I guess --
Byron R. White: The Attorney General's opinion wouldn't reach -- wouldn't solve the voter's call?
C. Anthony Friloux, Jr.: None whatsoever, Your Honor. It would only address itself to the limited question, could they stay in office.
Potter Stewart: The tenure of the officeholders not the law.
C. Anthony Friloux, Jr.: That's so, it would not addressed itself to substantial questions in the voting. Thank you, Your Honor.
Warren E. Burger: Mr. Gilleland?
John G. Gilleland: Mr. Chief Justice and may it please the Court. To further answer some of the questions that the Court apparently has in regard to whether or not the Texas law can solve some of the problems. I would like to give the Court a brief history of the prior law, prior to 1965 when 2351 1/2 (c) came in to existence. Article 5, Section 18 which is the state constitutional provision governing the justice of the peace and constables and commissioners was adapted by the residents of State of Texas in 1876 and that Constitution is still in effect. In 1895, we had a definitive decision by the Supreme Court of Texas interpreting Article 5, Section 18 on a matter of redistricting justice of the peace and constables. I have cited the case in my brief, Your Honors and that case is titled Rigsby v. Dowlen, of course, decided by the Supreme Court of Texas. Again in 1922, in the case titled William v. Castleman, the Supreme Court further interpreted Article 5, Section 18. Now, both of these cases, both by highest appellate courts in the State of Texas concluded that when justice of the peace and constable precincts are redistricted, when the old precincts seized to exist and the new order becomes effective that the new offices come into existence vacant. Now then, to relieve some of the harsh effects of the Supreme Court decisions interpreting Article 5, Section 18, the legislature in 1965 passed 2351 1/2 (c). One problem that we have had and we have had to resort to the Federal Court is because of the prior rulings of the Supreme Court of the State of Texas, if we were to attack in a state court the provisions of 2351 1/2 (c) which we would have necessity have to do because that's a tool that was used by the county in removing the appellees from office. Assume that we were successful in our attack challenging the constitutionality of 2351 1/2 (c) before a Texas Court, the Supreme Court, then the doctrine of stare decisis would re-implement the decisions of Williams v. Castleman and the Rigsby case of 1895 and their interpretation of Article 5, Section 18 leaving the appellees in a worst position that they were prior to challenging 2351 1/2 (c).
William H. Rehnquist: Now, in the 1965 Act, was just designed to ameliorate part of the consequences of those Texas constitutional decision.
John G. Gilleland: That is correct, Your Honor. So, that is the main problem.
Byron R. White: Do you have the same result, why wouldn't that be the case if the three-judge court holds exactly that?
John G. Gilleland: That we would have to challenge the --
Byron R. White: Why wouldn't they – if it is that 1965 legislation is unconstitutional? Aren't you glad that where you were to vote?
John G. Gilleland: Your Honor, it would be my position that declaratory judgment that we sought within the three-judge panel hearing and that was subsequently issued by the Court was that any -- that 2351 1/2 (c) was facially unconstitutional and of course it's effect was to remove an elected official from office and in the opinion of the Court it states specifically that any Act or this particular Act that would removed an elected official from office.
Byron R. White: Then all the offices were vacated?
John G. Gilleland: That is correct, Your Honor.
Byron R. White: And there wasn't any discrimination.
John G. Gilleland: That is correct.
William H. Rehnquist: So, wouldn't the three-judge district court had to hold the Texas constitutional provisions invalid, too?
John G. Gilleland: Now, would you repeat your question, sir.
William H. Rehnquist: Well, since the ‘65 Act was just to ameliorate some of the conceived hardships visited by the earlier Texas decisions interpreting the Texas Constitution. If the three-judge District Court were going to restore your people to office wouldn't it had to hold those Texas constitutional provisions unconstitutional under the Federal Constitution?
John G. Gilleland: Your Honor, I would probably agree with the Court that it would and surely have gone further in this decision. I believe that that matter was attacked in the lower court but the three-judge panel did not address itself to all of the issues that were raised at that level and they in fact concluded on two particular issues with reference to Equal Protection and Due Process of the Fourteenth Amendment. One being that the legislative classification where you have one officer who stays in office simply because of where he lives after redistricting and another is removed simply because of where he lives after redistricting, that that Act in itself is invidious and discriminatory. And their second holding would be that the Due Process clause guarantees the right to vote, that the right to vote is a fundamental right and that the Act which would cut short or abridge the right of the voter by cutting short the term of the office of the elected official violate the Due Process.
William H. Rehnquist: Well then, then the Due Process theme of the three-judge district court would hold the Texas constitutional provisions invalid just as surely as it would the ‘65 legislative Act?
John G. Gilleland: I see what the Court, yes sir, just carrying it one step further in reasoning, it would even though it wasn't specifically set out in the Court's order.
Potter Stewart: Now, the order of the Court did was not to keep these people in office simply but to absolutely enjoin the redistricting, didn't it?
John G. Gilleland: Yes, sir. I don't recall a specific order except I believe it said that Article 2351 1/2 (c) was facially unconstitutional and that they were enjoined insofar as removing these --
Potter Stewart: No, I didn't say --
John G. Gilleland: Maybe I'm not.
Potter Stewart: No, it didn't that was much broader. It said the order of the Commissioners Court of Harris County, Texas of June 28, 1973 and that was the redistricting order. In other words, the redistricting order complained of is therefore permanently enjoined.
John G. Gilleland: That is correct, Your Honor.
Potter Stewart: Page 35 of --
John G. Gilleland: Or Page 40 of appellees brief, Your Honor. That is correct. They enjoined the --
Potter Stewart: Allow any redistricting at all?
John G. Gilleland: Under the terms of 2351 1/2 (c) --
Potter Stewart: Yes, well it just didn't allow any redistricting?
John G. Gilleland: That is correct.
Potter Stewart: Any redistricting that would result presumably in the change of a residence of a magistrate or a commissioner or a JP.
John G. Gilleland: Your Honor, if I may carry that argument one point further on the matter of redistricting we are not --
William J. Brennan, Jr.: Well certainly, it's what the appendix says, doesn't it?
John G. Gilleland: No sir.
Potter Stewart: The order says so.
William J. Brennan, Jr.: This is only insofar as defendant's order of January 30 undertakes to point other persons.
Potter Stewart: This Court speaks through its order. This order was entered I suppose, wasn't it. This was --
John G. Gilleland: Yes, it wasn't (Voice Overlap), Your Honor.
Potter Stewart: That is on Page 35, beginning on Page 34?
John G. Gilleland: Yes, sir.
Potter Stewart: The Court speaks through its order, I suppose in Texas as it does in most places.
John G. Gilleland: It certainly does, Your Honor and it would be my contention should we seek to hold someone in contempt and be by virtue of the order and not the opinion but the position of the appellees is not -- we do not seek.
Lewis F. Powell, Jr.: Who's after the order of the petitioner?
John G. Gilleland: Now, as far as I know Judge Singleton who was the presiding judge of the three-judge panel from the southern district.
Lewis F. Powell, Jr.: Not counsel?
John G. Gilleland: Sir?
Lewis F. Powell, Jr.: Not counsel?
John G. Gilleland: No, sir.
Lewis F. Powell, Jr.: You didn't ask to submit an order?
John G. Gilleland: No, sir.
Harry A. Blackmun: Certainly inconsistent with the concluding paragraph of the opinion, is it?
John G. Gilleland: Yes, Your Honor, I'm in agreement. I think that I was quoting the opinion rather than the order a moment ago but for the Court's consideration, we are not challenging the redistricting as such. We would be the first to admit or stipulate that redistricting is needed.
Harry A. Blackmun: The order does except for the size.
John G. Gilleland: Yes sir but because the effect of that order is to remove elected officials from office part of --
Harry A. Blackmun: I know that if we affirm then that redistricting goes out the window, doesn't it?
John G. Gilleland: In that particular redistricting, Your Honor, but under Article 5, Section 18, the Commissioners Court of Harris County, Texas would still have the authority to redistrict pursuant to any instructions that they may have.
Lewis F. Powell, Jr.: Incidentally, may I ask if your colleague argued the inconsistency between Section 24 of your State Constitution, that's the removal section?
John G. Gilleland: Yes, sir.
Lewis F. Powell, Jr.: And Section 18 in those earlier Texas Supreme Court decisions proposition was -- that supposed the inconsistencies argued in deciding --
John G. Gilleland: With reference to county officers, sir?
Lewis F. Powell, Jr.: Well, county officers being concluding justices of the peace?
John G. Gilleland: Yes, sir. As far as I know under Texas law including the statement Mr. Landry made in Court, there is no requirement that an elected official reside in a precinct in which he is elected. The only requirement is that the election code requires that you be there to be elected.
Lewis F. Powell, Jr.: I haven't made myself clear, Section 24 as I understood your colleague, he argues that there is an inconsistency that that's the only way you can remove a justice of the peace from office. In other words, the cause shown, being set forth in writing and the finding of truth by the jury.
John G. Gilleland: Your Honor, that would be an inconsistency between 2351 1/2 (c) and across the --
Lewis F. Powell, Jr.: There will be also an inconsistency between, would it not, Section 24 and Section 18, independently of the statute?
John G. Gilleland: Yes, sir. That is correct, Your Honor.
Lewis F. Powell, Jr.: Wouldn't it, well, what I'm asking is in those early Supreme Court decisions, have they ever addressed, had alleged inconsistency?
John G. Gilleland: No, sir. Thank you for the opportunity for appearing.
William H. Rehnquist: Mr. Gilleland, let me ask you one question before you sit down. About what is going on in Harris County now in connection with this? As I understand it the three-judge district court judgment was entered January 30th and on February 4, 1974, Justice Powell granted to stay and the full Court -- our full Court declined to set it aside on February 19. Now, has anything happened to carry out the Commissioners Court's orders?
John G. Gilleland: Yes, sir. Your Honor, our election deadline was on February the 4th, the day that Justice Powell entered his order and the boundaries as established by the redistricting order of the Court were permitted to carry through in our Democratic and Republican primaries and consequently we have now officials who have been elected at the general election as of last Tuesday from the new boundaries.
Byron R. White: In other words, the District Court's order was saved --
John G. Gilleland: Was saved.
Potter Stewart: I see, I see.
John G. Gilleland: But the effect of this staying order removed my officials again from office who took office on the first and they were back out on the fourth. Right, yes, sir.
Byron R. White: But they had --
John G. Gilleland: We hope we do that question hasn't --
Byron R. White: But you have asserted it?
John G. Gilleland: We did assert one, Your Honor but it has been denied by the county. We met the man on several occasions for --
Speaker: (Inaudible)
John G. Gilleland: No sir. It has not been asserted, it is on file, a motion is on file but the Court has not ruled yet as to whether or not it will hear the issue of damages before a three-judge panel. We expect the Court to address itself for that question in the near future.
William H. Rehnquist: Would you think that if you win --
John G. Gilleland: Yes, sir.
William H. Rehnquist: -- the complaint in the federal court did pray for that?
John G. Gilleland: Yes, sir. Thank you.
Warren E. Burger: Do you have anything further, Mr. Landry?
Edward J. Landry: Yes, Your Honor. I would just answer some of the contentions made by counsel for the appellees. First, with respect to Mr. Friloux's charge that this redistricting was in bottomed on racial discrimination basis, I would submit that that is not consistent with this Court's decision in White against Regester in which the Court upheld the ruling of the District Court's striking down multi-member districts in Texas on the ground that they suppressed minority participation in the political arena. In this particular case, the commissioners made no bones about the aim as one of the objectives of this redistricting to promote minority participation and to that end they did in fact, in a precinct with some 35% Latin-American population appoint a Latin-American constable as well as two justices of the peace of Latin-American extraction. Also, with regard to precinct number 7 in which had a 58.4% black population, they appointed one Negro constable and two Negro justices of the peace. We would submit to the Court that that objective of many that are set out at Page 5 of the appellant's brief is a laudable on the part of the Commissioners Court. With respect to Mr. Friloux and Mr. Gilleland's contentions that Article 5, Section 24 of the Constitution that is the State Constitution classifies these officers as county officers. That may well be true but in the Whitmarsh against Buckley case which is a Court of Civil Appeals case no written history. The fact of the matter is there the Court classed school district trustees as county officers and yet they applied Article 105 of the Election Code to say that they were confined to residency within the school district which was an area less in size than the county as a whole and whether or not these individuals or county officers we would submit is not a question for this Court to decide. It is a question truly for the Texas Courts to decide as to whether or not these officers or county officers under the state constitution and whether or not they should be treated the same as the County Commissioners in Section B of the statute.
William J. Brennan, Jr.: May I ask Mr. Landry, did you make any point before the three-judge court seeming broader order than the last paragraph of the opinion indicated would be under?
Edward J. Landry: Your Honor, no, we did not. We, of course, have not been before the District Court except to seek a stay of its order.
William J. Brennan, Jr.: So, you weren't involved in the defense of that suit?
Edward J. Landry: Yes, we were Your Honor. I may have misunderstood your question.
William J. Brennan, Jr.: No, reading this order, it's broader than the opinion indicated would be given to the plaintiffs, isn't it?
Edward J. Landry: That's correct but as I've said in answer to the question we've only been before the Courts since the order in an attempt to seek a stay.
William J. Brennan, Jr.: And didn't argue that proposal is broader than what you said in the appeal you were going --
Edward J. Landry: No, we did not Your Honor but of course, we argued that if the order was far overrating when we sought the stay from Mr. Justice Powell.
Byron R. White: Which came out first, the opinion of the order?
Edward J. Landry: The order came down on the very day of the hearing.
Byron R. White: (Voice Overlap), Mr. Justice Powell.
Edward J. Landry: Yes, Your Honor. The order came down on January 30th. The opinion came down on February the 8th. We of course, have discussed at great length the seeming disparity. We have assumed that the order is to be read in the light of the Court's opinion and therefore if the order is much tampered by the opinion of course.
Byron R. White: The opinion is followed there and do you think that an effect to modifying the order or --
Edward J. Landry: Well, that's just our hope, Your Honor.
Lewis F. Powell, Jr.: But in any event you didn't go to the Court and said, “Look, your opinion now was much narrower than the order.”
Edward J. Landry: We haven't had to, Your Honor in the light of Mr. Justice Powell's stay and in of course the hope that this Court will provide us with the relief that we're seeking. I would just close out with the following. With regard to Article 2351 1/2 (c) two United States District Courts have now abstained from deciding questions involving the construction of that statute all be at both at for Section A of the statute. The Attorney General of Texas has now with three different advisory opinions declared either Section A or Section C unconstitutional under the state Constitution. One Texas Court of Civil Appeals has actually applied the statute. The statute is just begging for a definitive construction by the Texas Supreme Court and we would submit that the proper disposition of this case would be for this Court to reverse the judgment of the District Court and remand the cause to that Court with instructions to abstain from deciding the case on the ground of abstention.
Potter Stewart: The trouble with that Mr. Landry according to your brothers is that there is no prompt way for getting a resolution or construction in the Texas Courts, as your Harris County Courts are terribly behind and impeded. There is no provision for a declaratory judgment. We heard all this as you did from your brothers today do you differ with them?
Edward J. Landry: I differed very greatly, Your Honor. There certainly is declaratory judgment provisions in the Texas statutes. I don't know which Courts that my adversary counsel --
Potter Stewart: He represented us professionally that this would be a very long procedure.
Edward J. Landry: There is no question that there may be some delay but it is not unreasonable delay.
Harry A. Blackmun: Mr. Landry, a number of states now have had statutes which permit certification from the federal court to the highest court of state for the disposition of a question of state law. Does Texas have such a statute?
Edward J. Landry: Your Honor, --
Harry A. Blackmun: Uniform statute on the subject matter.
Edward J. Landry: I simply do not know the answer to the question.
Warren E. Burger: Do you think this Court has inherent powers to certify to a state whether it has a statute of that kind or not or haven't you given it any thought?
Edward J. Landry: I have not given it any thought Your Honor but I would certainly think that the Supreme Court of the United States would have that kind of power.
Warren E. Burger: Very well. Thank you, Mr. Landry. Thank you, gentlemen, the case is submitted.