Full opinion text
MEMORANDUM OPINION NIXON, District Judge. This Memorandum Opinion shall constitute this Court’s specific findings of fact and conclusions of law required by Rule 52, F.R.Civ.P. and mandated by the United States Court of Appeals for the Fifth Circuit in its opinion of March 29, 1978, in the four consolidated voting dilution cases of Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978) (hereinafter referred to as Nevett II); Bolden v. City of Mobile, Alabama, 571 F.2d 238 (5th Cir. 1978); Blacks United, Etc. v. City of Shreveport, 571 F.2d 248 (5th Cir. 1978); and Thomasville Branch of N.A.A. C.P. v. Thomas City, Ga., 571 F.2d 257 (5th Cir. 1978). This action was brought by Henry J. Kirksey and other black plaintiffs, all registered voters of Jackson, Mississippi, and representing all black citizens and black registered voters of Jackson as a class, contending that the present at-large system of electing the mayor and two city commissioners for the City of Jackson abridges the rights of the city’s black citizens as secured by the Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution and 42 U.S.C.. §§ 1971, 1973 and 1983. The plaintiffs allege that the existing commission form of government which consists of two commissioners and a mayor who also functions as a commissioner, each of whom is a fulltime employee assigned specific functions, i. e., responsible for supervising the work of several specified city departments, and elected from the city at-large to four-year terms of office without any subdistrict residency requirement, unconstitutionally discriminates against black residents of Jackson by diluting or cancel-ling out their voting strength. They also complain of a denial of their statutory rights under 42 U.S.C. §§ 1971, 1973 and 1983. Jurisdiction of this action is premised on 28 U.S.C. §§ 1331, 1343, and 2201, and 42 U.S.C. §§ 1971(d) and 1973f. The defendants are the City of Jackson, a municipal corporation, the former city council consisting of Mayor Russell C. Davis and Commissioners Thomas B. Kelly and Douglas W. Shanks, sued individually and in their official capacities; the Jackson Municipal Democratic Executive Committee and its chairman and the Jackson Municipal Election Commission and its members. The Jackson Municipal Republican Committee and its chairman were dismissed as defendants by Order of this Court dated March 28, 1977. The verified complaint was filed herein on March 10, 1977, after the defeat of a citywide referendum held on February 22, 1977 on the issue of changing the form of city government in Jackson to that of a mayor-council under which the council members would have been elected from seven single-member districts or wards. The plaintiffs seek (1) a declaratory judgment that at-large, citywide voting for members of the Jackson City Council under the commission form of government unconstitutionally minimizes and cancels out black voting strength; (2) an injunction enjoining any further municipal primary or general elections for members of the city council on the basis of at-large, citywide voting; (3) an order requiring the defendants to adopt and place into effect a mayor-council form of government authorized by Miss.Code Ann. §§ 21-8-1, -47. (Supp.1976), providing for the election of nine members of the city council from nine single member districts, at least three of which would have black voting majorities; and (4) attorneys’" fees, necessary expenses of this litigation, taxable costs and such other relief as may be just and equitable. The defendants admit that the plaintiffs are black citizens and registered voters of Jackson; that Jackson is majority white in population, voting age population, and registered voters; that in the past blacks have been discriminated against both in Mississippi and in Jackson; that since the Commission form of government was adopted in Jackson in 1912, no blacks have been nominated or elected to any position on the Jackson City Council, although several have been candidates therefore; that there are no ward or district residency requirements for candidates; that Jackson municipal elections are governed by a majority vote requirement to win party nomination or a special election to fill a vacancy; and that there is a full-slate or anti-single shot voting requirement. Plaintiffs filed a Motion for Preliminary Injunction on March 21, 1977, seeking to halt the municipal Democratic and Republican elections scheduled for May 10, 1977 and the municipal general election scheduled for June 7, 1977. On March 31, 1977, after an extensive hearing on the Motion, this Court in an oral bench opinion denied plaintiffs’ Motion for Preliminary Injunction. This denial was appealed to the United States Court of Appeals for the Fifth Circuit, which, on April 21, 1977, denied plaintiffs’ Motion for a Preliminary Injunction, pending appeal, to halt the then upcoming municipal primary and general elections. The Fifth Circuit directed this Court to “expedite the hearing on the merits at the earliest feasible time,” Kirksey v. City of Jackson, 552 F.2d 156 (5th Cir. 1977), and on remand, pursuant to the mandate of the Fifth.Circuit, this Court tried this case on July 6 thru 8, 1977. I. VOTING DILUTION PRINCIPLES AND METHOD OF PROOF This Court recognizes its obligation to make specific findings under each of the principal and enhancing criteria articulated in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff’d per curiam on other grounds sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), the polestar of this Circuit which sets forth the constitutional precepts of White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), as mandated by the Fifth Circuit in Nevett II and its companion cases. After specific factual findings are made under each of the Zimmer criteria, we must then determine whether the aggregate of the evidence preponderates in favor of a finding of dilution by fully weighing, and balancing all of the specific findings made in conformity with the Zimmer criteria. The necessity of following the foregoing mandated procedure emanates from the Court of Appeals’ holding in Nevett H and its companion cases that Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) requires the plaintiffs in a voter dilution case, also referred to as a “qualitative” reapportionment case, to prove by a preponderance of.the evidence intentional or purposeful, discrimination in racially based voting dilution claims founded on both the Fourteenth and Fifteenth Amendments to the United States Constitution. Nevett II, supra at 219. The en banc court in Zimmer synthesized the dilution principles of Regester and Chavis by establishing certain primary and enhancing factors that a District Court must address in deciding a dilution case. The factors which are seen to go primarily to the ultimate .issue of dilution are: (1) access to the process of slating candidates; (2) responsiveness of representatives to the particular needs of the complaining minority! (3) presence or absence of a tenuous state policy in favor of at-large districting; and (4) existence of past discrimination that precludes effective participation by a minority in the electoral system. The foregoing criteria go primarily to the issue of denial of access or dilution, that is, the denial to minority voters of a real opportunity to meaningfully participate in the political process, and not just the right to cast a vote that can be completely ignored under the provision of governmental protection and governmental services because an election system is so operated as to make that vote meaningless in the election outcome. Zimmer also established what is referred to as enhancing factors, that is, certain structural voting devices that may enhance the underlying dilution, if any, that exists. These are: (a) the size of the district in question; (b) the portion of the vote necessary for election (majority or plurality); (c) whether positions are contested for individually, and the number of candidates for which an elector must vote (anti-single shot voting provisions); and (d) whether candidates must reside in geographic sub-districts. Nevett II and its companion cases hold that the required showing of intentional discrimination which is essential to a valid voter dilution claim under both the Fourteenth and Fifteenth Amendments may be satisfied by direct or circumstantial evidence, the former, although easily establishing a case of voter dilution, being very rare and difficult to prove, thus resulting in an inquiry of whether plaintiffs have succeeded in meeting their burden of proof based upon circumstantial evidence, bearing in mind that establishment of the Zimmer criteria constitutes circumstantial evidence of the presence or absence of the required intentional discrimination in the form of voting dilution. Several established principles must be kept in mind in determining the ultimate issue in a voting dilution case, that is, whether the districting plan under attack exists because it was intended to diminish the political efficacy of a certain group. This ultimate issue must be determined by weighing the aggregate of the sub-issue findings. Nevett II, supra at 226. A finding that the plaintiff has prevailed under one or even several of the Zimmer criteria may not establish the existence of intentional discrimination. See, e. g., McGill v. Gadsden Co. Commission, 535 F.2d 277 (5th Cir. 1976). The evidence under the other criteria may weigh so heavily in favor of the defendants that the evidence as a whole will not bear an inference of invidious discrimination. On the other hand, the plaintiff need not prevail under all of the criteria, Zimmer, supra at 1305, nor is he limited to only those elements of proof. Kirksey v. Board of Supervisors of Hinds County, Mississippi, 554 F.2d 139 (5th Cir. 1977) (en banc) cert. denied 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977) (by a proof of an aggregation of at least some of the Zimmer factors or similar ones, a plaintiff can demonstrate that the members of a particular group in question are being denied access). The task before the fact-finder is to determine, under all the relevant facts, in whose favor the “aggregate” of the evidence preponderates in each case; it comprehends “a blend of history and an intensely local appraisal of the design and impact of the [at-large] district in the light of past and present reality, political and otherwise.” White v. Regester, 412 U.S. at 769-70, 93 S.Ct. at 2341. As stated in Nevett II, the finder of fact must carefully “weigh the competing factors to determine whether the coincidence of those probative of intentional discrimination is sufficient. ‘Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.’ Arlington Heights v. Metropolitan Housing Corp., 429 U.S. [252], at 266, 97 S.Ct. [555], at 564, 50 L.Ed.2d 450 (1977)”, Nevett II, supra at 224. Having fully discussed the established voting dilution principles, including the burden on the plaintiffs of proving by a preponderance of the evidence an intentional discrimination, we must now specifically decide the factual sub-issues as taught by Nevett II. II. THE PRIMARY FACTORS A. Black Access to the Electoral Processes in Jackson The first of the primary Zimmer factors to be addressed is that of black access to the political or electoral process in Jackson. Although plaintiffs challenge the at-large election system in Jackson as racially discriminatory, they do not contest the voter registration procedure or the procedure by which candidates presently qualify to run for political office. The forms utilized by the offices of the Hinds County Circuit Clerk and Jackson City Clerk in registering voters and qualifying candidates to run in municipal elections do not evidence a racially discriminatory purpose or present any impediments to blacks voting or qualifying to run for city office either in primary or general elections. Jackson is the capital of Mississippi, its largest city, and one of two county seats of Hinds County. It is currently the largest bi-racial city in the United States (defined as one with 25% or greater black population) with a substantial black population which fias no black representation on its municipal governing body. Jackson’s 1970 population was 153,968, of whom 92,651 were white (60.17%) and 61,063 (39.66%) were black. The voting age population was 99,136, of whom 64,482 were white (65.04%) and 34,492 were black (34.79%). It comprises 105.36 square miles in area, having annexed approximately 40 square miles of territory in 1976 which was populated mostly by white persons. The city’s Planning Board estimates that its current population is 205,000 persons with a voting age population (including the newly annexed area) of 157,589, of whom 104,985 are white (66.62%) and 52,604 are black (33.38%). The city voter registration rolls show a total registration (including the newly annexed area) of 93,058 persons, comprised of 67,711 whites (72.76%), and 25,132 blacks (27.01%) and 215 whose race is unknown (0.23%). Anyone who seeks nomination in the Democratic or Republican primaries may do so by having his application certified by either the Democratic or Republican Executive Committee, that is, by having the Chairman of the appropriate committee certify to the City Clerk that the candidate has qualified to run in the primary. Candidates do not qualify or run for Commissioner by post number inasmuch as the Jackson City Council has never by ordinance provided that Commissioners be designated by Post Number One or Post Number Two, as authorized by the provisions of Miss.Code Ann. § 21-5-11 (1972). In that event such posts would be separated for election purposes and persons seeking the office of Commissioner would qualify and seek election for a specific post as designated by ordinance with each to be voted on separately by the qualified electors of the municipality as contemplated by Miss.Code Ann. § 21-5-5 (1972). In each primary election, voters must vote for one candidate for mayor and two for city commissioners. Single shot voting for commissioner is not permitted and unless two are voted for, the vote for commissioner is not counted. The two candidates for commissioner and the candidate for mayor receiving the majority of votes in the first or second primary are then certified to the Election Commission by the Democratic and Republican Executive Committees and each party’s one candidate for mayor and two candidates for the two commissioner posts aré then placed on the ballot for the general election which is conducted by the Jackson Election Commission appointed by the City Council. Independents may run in the general election and qualify with the City Clerk by filing a petition containing the signatures of fifty qualified voters. There is no limit on the number of independent candidates who may run for the posts of mayor or commissioner. In the general election, no single shot voting is permitted, and the electorate are permitted to vote for one candidate for mayor and are required to vote for two for commissioner. In all elections, both primary and general, in order to be elected, a candidate must receive a majority of the votes cast, and as many runoffs as are necessary are held. No qualifying fees need be paid by any candidate running in either the primary or the general election and certification by the party executive committee is a mere formality which is routinely given. One of the named black plaintiffs has run for the office of Jackson City Commissioner, and between the years 1969 and 1973, four other black candidates have sought election to the Jackson City Council. Thus black candidates are not denied the right to seek elective office in the City of Jackson. By law no group is entitled to representation on the elected governing body in proportion to its voting potential, White v. Regester, 412 U.S. at 766, 93 S.Ct. 2332, so it is not constitutionally required that black voters elect at least some candidates of their choice regardless of their percentage turnout, David v. Garrison, 553 F.2d 923 (5th Cir. 1977); Nevett II at 216. In the same light, polarized or bloc voting in itself is not constitutionally objectionable; nevertheless, combined with the other factors discussed in this Opinion once proved, it is highly indicative of lack of access to the political processes and it is one piece of the circumstantial evidence puzzle whose successful completion supports the illation of dilution. Bolden, supra, at 243; Nevett II, supra, at 227. The subject of past discrimination in Mississippi will be discussed later in more detail. As previously noted, the defendants concede the existence of past racial discrimination in the State of Mississippi and the City of Jackson, which was massive and obvious, and which prior to the enactment of the Federal Voting Rights Act of 1965 effectively disenfranchised blacks in violation of the Fifteenth Amendment to the Constitution of the United States. Although this Court in its Opinion in Kirksey v. Board of Supervisors of Hinds County, Mississippi, 402 F.Supp. 658 (S.D.Miss.1975), found that the effects of past discrimination were no longer present in Hinds County, the en banc Court of Appeals reversed, holding that the past discrimination precluded the effective participation of blacks in the electoral process in the absence of the defendants meeting their burden of coming forward with the evidence that enough of the incidents of the past had been removed, the effects of past denial of access dissipated, and that there was presently equality of access, because of “sweeping and pervasive” past intentional discrimination which was shown to have continued to within a few years of the present. Kirksey v. Board of Supervisors, supra at 144. Nevett II, supra at 222, fn. 26. Since the commission form of government was adopted in 1912, no black candidate has been nominated in any party primary for a seat on’the Jackson City Council, nor has any black candidate been elected to the Jackson City Council in at-large voting. It is true that the named plaintiff, Henry J. Kirksey, black independent candidate for governor, received a smaller percentage of the black vote in Jackson than did either his Republican or Democratic opponent, but this fact was very unusual and probably resulted from his limited campaign efforts, and/or his qualifications and personal popularity. All other elections involving black office seekers reflected that each received a very large percentage of the black votes cast but very few of the white votes in Jackson, the overwhelming percentage of the latter having been cast for white candidates with the exception of one legislative race in which over 3,000 white votes were cast for a black candidate in 1967. (See Exh. P-129). Five black candidates sought seats on the Jackson City Council in the 1969 and 1973 municipal elections, and all were defeated. In addition, the referendum submitted to the electorate of Jackson for a change in the form of city government to a mayor-council form was defeated. The results of all these elections and the unsuccessful referendum were analyzed by Dr. Gordon G. Henderson, Professor of Political Science and Director of the Computer Center at Tougaloo College near Jackson, Mississippi. Based upon 1970 Census data, Dr. Henderson computed the racial composition of all the Jackson voting precincts, and then compensating for socio-economic status, used the election results and a computer program to perform both correlation analysis and regression analysis of the election returns by precinct. Correlation analysis is a process which shows the strength of the relationship between pairs of variables, using statistically significant variables which are stronger than other variables. Regression analysis is a process which singles out from a group of variables the independent variable which best predicts values of the dependent variable, and thus can best explain the variance between the two. Stated another way, regression analysis is an accepted method of analyzing data to determine the extent of correlation between dependent and independent variables. The dependent variable was the vote received by the candidates studied, and race was the independent variable whose influence on the vote received was measured by the regression. The analysis reflected that race had a strong correlation with the vote received by a candidate; in other words there was strong evidence of racially polarized voting. The regression analysis showed that the best predictor of the votes received by the black and white candidates for municipal office was the racial composition of the population of the precincts, and other factors such as socio-economic status were never significant predictors of the voting patterns. In the 1973 municipal elections winning white candidates carried every one of the almost exclusively white precincts, and black candidates failed to receive a significant number of votes in those precincts. Conversely, each of the major black candidates for municipal office overwhelmingly carried all of the almost exclusively black precincts. This Court agrees with Dr. Henderson’s conclusions that there is a clear pattern of racially polarized voting in Jackson with whites voting overwhelmingly for white candidates for municipal office and blacks voting almost overwhelmingly for black candidates. Blacks today have no problem in becoming candidates in a primary election and in a general election in the City of Jackson, as is evidenced by the fact that there have been quite a few black candidates for municipal office. Likewise, there are no impediments to blacks registering and voting in these elections. The plaintiffs concede that they have no evidence of blacks being currently discriminated against in the areas of voter registration, and offered very little, if any, evidence of any problem in getting on the ballot, which is the core of the slating inquiry. As noted by the court in Nevett II, “[t]he success or failure of black candidates appears to depend not upon any barriers to access to the slating or registration stages of . [Jackson’s] political processes, but upon racially polarized voting . .” 571 F.2d at 227. Thus the Court finds that the plaintiffs have failed to prove any lack of access in the electoral process, either in slating, registering or voting in the City of Jackson. B. State Policy Concerning At-Large Districting of City Governments A tenuous state policy in favor of at-large districting may constitute evidence that other, improper motivations lay behind the enactment or maintenance of the plan, and the' absence of a significant and legitimate state policy behind districting provisions has been an important factor in several cases finding intentional discrimination. Mississippi law permits a municipality to select one of several different forms of government. See, Miss.Code Ann. §§ 21-3-1, 21-5-1, 21-7-1, 21-9-1 (1972); Miss.Code Ann. § 21-8- -1 (Supp. 1977). This is similar to the law referred to by the court in Bolden which resulted in the District Court’s finding that the State of Alabama had no particular preference for an at-large scheme. The court in Bolden said it appreciated the traditional deference the federal courts have accorded local governments, and recognized “that viable local governments may need considerable flexibility in municipal arrangements if they are to meet changing societal needs. Abate v. Mundt, 403 U.S. 182, 185, 91 S.Ct. 1904, 1907, 29 L.Ed.2d 399 (1971).” 571 F.2d at 244. The Bolden court added that city-wide representation was a legitimate interest, and at-large districting was ordinarily an acceptable means of preserving that interest. See Wise v. Lipscomb, 434 U.S. 1329, 98 S.Ct. 15, 18, 54 L.Ed.2d 41 (1977), [recalling mandate and staying judgment of 551 F.2d 1043 (5th Cir. 1977)]. The Fifth Circuit nevertheless stated that the longevity of Mobile’s at-large commission government could not insulate it from judicial review when state power is used as an instrument for circumventing a federally protected right [citing Gomillion v. Lightfoot, 364 U.S. 339, 347, 81 S.Ct. 125, 130, 5 L.Ed.2d 110 (196)]. As in the case sub judice, the defendant city officials in Bolden had never suggested in their brief any legitimate municipal function which the at-large districting act is designed to serve. Although the court in Nevett II stated that “[even] though state statutes generally need satisfy only minimum rationality requirements .. the weight of the • state policy behind the districting plan is an evidentiary consideration that must be considered along with all other relevant evidence to determine whether the plan is improperly motivated.” 571 F.2d at 224. This Court finds that there is lacking herein sufficient interest in at-large districting to allow a finding that there is an extant state policy in favor of at-large 'districting of city government. C. The Effect of Past Discrimination on the Present Effective Participation in the Election System The third factor which must be considered in determining whether black citizens’ Fifteenth Amendment right to vote has been diluted is whether past discrimination in general precluded the effective participation in the election system by blacks, that is, whether past effects of discrimination have the effect of precluding effective participation in the election system by blacks today. The defendants have conceded a history of past discrimination against blacks in Mississippi and in Jackson. Prior to the passage of the Voting Rights Act of 1965, eligible black citizens in Mississippi were almost completely disenfranchised by the voting qualification requirements of the Mississippi Constitution of 1890 and subsequent legislation enacting literacy and constitutional interpretation tests for voter registration and by the poll tax requirement. See Stewart v. Waller, 404 F.Supp. 206, 214 (N.D.Miss.1975) (noting the “long history of statutory racial segregation and discrimination in Mississippi, with consequent token participation by blacks in the political processes of the state”); Riddell v. National Democratic Party, 344 F.Supp. 908, 912 (S.D.Miss.1972), rev’d on other grounds, 508 F.2d 770 (5th Cir. 1975) (“it is true that in the past Mississippi, [through] its laws, practices and customs as have other states has been guilty of racial discrimination”). In addition to past voting discrimination, racial discrimination and segregation was imposed in other areas of public life in Mississippi as well, including public schools, colleges and universities, public parks, waiting rooms, public places of amusement, recreation and assembly, public transportation and terminals, county and municipal jails and state prisons, and public hospitals and sanitariums. State officials were charged with the duty of maintaining segregation of the races. U. S. v. State of Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965). After the passage of the Voting Rights Act of 1965, Federal registrars or examiners were dispatched to Hinds County to enforce the guarantees of the Fifteenth Amendment and to register voters to participate in both state and municipal elections. Of the 13,232 persons registered to vote in Hinds County by federal examiners, 8,683 (65.62%) were registered to vote in Jackson precincts. The Jackson School Board, appointed by the Jackson City Council, long maintained a dual or racially segregated school system, see Singleton v. Jackson Municipal Separate School District, 509 F.2d 818 (5th Cir. 1975), and the city maintained racially segregated parks, auditoriums, golf courses, and swimming pools, most of which were not desegregated until successful federal litigation ensued. This Court is mindful of the fact that it is not enough that the less subtle means of diminishing black participation have been removed inasmuch as discriminatory official action is often clandestine and politic. Furthermore, as the court in Bolden said: Where, as here, past racial discrimination has been found to be pervasive and recent, it must be demonstrated “that enough of the incidents of the past [have] been removed, and the effects of past denial of access dissipated, that there [is] presently equality of access.” Kirksey v. Board of Supervisors, 554 F.2d 139, 144-45 (5th Cir.) (en banc) (footnote omitted), cert. denied 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977). 571 F.2d at 245. ■ This must be done by the defendants bearing the burden of coming forward with evidence that enough of the incidents of the past have been removed, the effects of past denial of access dissipated, and that there is presently equality of access. Nevett II, supra at 227, fn.26. This Court finds that the defendants have met the burden cast upon them in Kirksey. Plaintiffs concede on page 11 of their post-trial Proposed Memorandum Opinion that there is no evidence that blacks are currently being discriminated against in voter registration; likewise, this Court finds in accordance with.the testimony of Mrs. Evelyn Ballard, City Clerk of the City of Jackson for the past 13 years, that black registration has been in rapid ascendency since passage of the 1965 Voting Rights Act. The record is completely devoid of any evidence supportive of any present fear or reluctance or interference with the efforts of blacks to register, vote, or seek public office, and the turnout among black registered voters for the past several elections has not been such that would give rise to the inference of any fear or reluctance on their part to cast their ballots or to seek election to the Jackson City Commission or any other elective office in the City of Jackson or to vote on the referendum question submitted and defeated recently. In addition, the Jackson Municipal School District is now a unitary, integrated system; there are no longer segregated terminal or transportation facilities; public facilities are fully integrated and no longer discriminate against blacks; and most, if not all, public facilities in the City of Jackson, are no longer racially segregated. Of course this Court takes judicial notice that the foregoing ameliorative actions were effectuated by federal litigation, mostly through consent orders entered into following the institution of suit, most of which went far beyond the specific relief requested by the plaintiffs. The failure of black candidates to win election in the past city elections has not resulted from preclusion of effective participation by blacks in the election system because of past discrimination. D. Responsiveness of City Officials to the Black Citizenry of Jackson The fourth and last principal Zimmer factor or criterion which must be considered is whether the at-large elected may- or and two city commissioners of Jackson have been responsive to the needs of its black citizens. As noted by the Court of Appeals in Bolden, the District Court’s task in considering evidence under the responsiveness criterion is a singularly factual one, and although not in itself determinative of dilution, nevertheless is of “momentous” importance. Blacks United, Etc. v. City of Shreveport, supra, at 254. The two distinct facets of this issue are (1) the extent and quality of municipal services to the neighborhoods populated by minority group members, and (2) a distribution to them of municipal jobs and appointments to various boards and commissions. Hendrix v. Joseph, 559 F.2d 1265, 1268-69 (5th Cir. 1977); David v. Garrison, supra at 923 (5th Cir. 1977). A concomitant of this is the equal treatment of blacks by city officials and various department heads and their staffs. We are mindful of the fact that the plaintiffs have the burden of proving unresponsiveness, and that this Court's findings of fact on this sub-issue must also be thorough and detailed, rather than conclusory in nature. See, Blacks United, Etc. v. City of Shreveport, supra. 1. Appointments — Employment With these well settled principles in mind, we consider first the question of whether the plaintiffs have proved by a preponderance of the evidence that the defendants are guilty of discrimination in the dual and interrelated appointment-employment fields. It is undisputed that the final authority to make all such appointments and to hire employees rests with the mayor and two commissioners, each of the three having charge of various city departments or functions. (a) Appointments. We recognize that in dealing with discretionary appointments, a court may not order that particular appointments be made, Mayor of the City of Philadelphia v. Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974), and James v. Wallace, 533 F.2d 963 (5th Cir. 1976), nor do jobs need necessarily be allocated proportionately to every group in the electorate before a local governmental entity is deemed to be responsive. Hendrix v. Joseph, supra at 1269. It is undisputed that prior to 1969 no blacks were appointed by the Jackson City Council to city boards, authorities, committees or commissions. At the time of the trial of this case, of the 35 appointive boards, authorities, committees or commissions whose members are appointed by the city council, 21 are all white (60%), and 13 have black members (40%). Of the 320 seats on these various boards, authorities, committees or commissions, 289 are filled by whites and 41 are filled by blacks (.14%), with some few blacks serving on two or more committees. (Ballard testimony; Stipulation Ex. M-8). Two of the five member Board of Trustees of the Jackson Municipal Separate School District are blacks, which is unsatisfactory to the plaintiffs, inasmuch as 70% of the student enrollment in the school system is black. The number of appointments that may be made in any given length of time is limited due to the fact that the terms of the members thereof are staggered. One vacancy on the Board of Trustees occurred in 1977, and a black was appointed to fill that position. The first black was appointed to the City Planning Board in late 1971, and the second of the two present black members on that Board was appointed in 1974 when the board was expanded to 15 members. Both of the black members on the board are active, vocal and involved in Planning Board activities, and are thus very representative of the black citizenry. Although all members of the Jackson Zoning Commission are white, no. black applied for membership to fill the vacancy in response to advertisement for a black member. The planning division of the Jackson Planning Authority consists of 16 members, ten of whom are white, five black and one Oriental. The Deputy Director of the Allied Service Department, which was a brainchild of the immediate past mayor, Russell Davis, and which has the responsibility for the overall supervision of programs for human resources, is David Miller, a black who has held this position since 1973 at a salary in excess of $14,000. In. addition, the Vista coordinator of this department is black and makes in excess of $12,000 per year, and seven of the eight day-care center manager operators in this department are black and each makes in excess of $10,000 per year. The majority of these programs administered by this agency are federally funded with the City posting matching funds; however, the entire staff thereof, including the foregoing, are paid with city funds. Recently the Jackson City Council created a new board known as The Arts Center and Planetarium Board, and appointed nine members to that board, one of whom is black. Judge Reuben Anderson (who subsequent to the trial of this case has been appointed by the Governor to fill a vacancy in one of two County Court judgeships in Hinds County, formerly held by a white judge), a black lawyer, was at the time of the trial of this case serving as one of three City Court judges in Jackson pursuant to his appointment by the City Commission. Judge Anderson is the law partner of Fred L. Banks, Jr., who the Court takes judicial notice was recently appointed by the Governor to membership on the State Board of Bar Admissions. In addition Anderson served on a committee appointed by former Mayor Davis to investigate the Jackson State University incident of some years ago and is a member of a committee appointed by newly-elected Mayor Dale Danks, Jr., together with another black lawyer, to review the operation of the municipal court system in Jackson for the purpose of improving the administration of justice in the city courts. Presently, two of the five members of the Jackson Housing Authority and one of the seven members of the Jackson Redevelopment Authority are blacks. This Court is impressed by the affirmative steps taken by the officials of the City of Jackson since 1969 to obtain effective representation of black interests on various boards, authorities, commissions and committees in the city, clearly indicating that they are being appointed in increasing numbers by the elected city officials. • This Court is therefore of the opinion that the plaintiffs have failed to prove by a preponderance of the evidence that the defendants are presently, or have since 1969 been unresponsive to the black citizenry in the appointment sphere of government. (b) Employment. As previously noted, all hiring and promotion of municipal employees of the City of Jackson must be approved by the City Council (Mayor and two Commissioners). In 1972 and 1973, black plaintiffs filed complaints in this Court against the City of Jackson charging racial discrimination in hiring, testing, promotions and other terms and conditions of employment in the Jackson Fire and Police Departments. Bell v. City of Jackson, Civ. No. 72J-153(C) (S.D. Miss.1973) (Fire Department); Corley v. Jackson Police Department, Civ. No. 73 J-4(C) (S.D.Miss.1974). Discovery revealed the following facts which were stipulated as correct in the consent decrees subsequently entered into between the plaintiffs and the defendants in both of the above cases. For the sixty-year period from its formation until 1971 no black person had been employed in the Jackson Fire Department until 1972, when the first black employee was hired. From 1972 to 1973 eighty-six blacks applied for positions in the Fire Department but only one was hired. Statistics stipulated as correct by the parties indicated that most black applicants were rejected for failing to make a passing score on the Civil Service Examination. Statistics showed that this test had an extremely discriminatory impact on black applicants and had never been validated for job-relatedness. In the Corley case, it was shown that from the formation of the Police Department in 1885 until 1963 no blacks had been employed as sworn officers therein, the first having been employed in 1963. Despite the fact that Jackson was 39.17% black according to the 1970 Census, as of December, 1972, of the 302 sworn officers of the department, only 21 were black (6.95%), and none held the rank above that of sergeant with, only one black officer having held that rank. Of the 318 black applicants who had applied to become a sworn police officer between 1970 and 1973, only 14 were hired. 87% of the black applicants during that period received failing scores on the Police Entrance Examination, which had a severe discriminatory impact on black applicants and which also had never been validated for job-relatedness. Additional statistics stipulated to by the parties showed under-representation of blacks among secretarial and clerical personnel, segregated job categories and disparities in promotional test scores and promotions between white and black applicants for promotions in the Police Department. In 1974, the United States Department of Justice filed an action against Jackson charging a citywide pattern of practice of employment discrimination throughout the various departments of the city in violation Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., United States v. City of Jackson, Civ. No. J74-66(N) (S.D. Miss.1974). The city and the plaintiffs entered into consent decrees in all three of the foregoing cases agreeing to detailed injunctive relief designed to eliminate racial discrimination in all aspects of city employment. This relief included one-for-one quota hiring in all job classifications in which blacks were under-utilized and for sworn officer positions in the police department, filling the first fifteen vacancies in the fire department with blacks and then hiring on a two for one (black-white) basis, one-for-one quota promotions in the police department, elimination of all tests and entrance examinations alleged to have a discriminatory impact unless and until properly validated, and also back pay for certain categories of employees. On June 18, 1976, four rejected black applicants for Jackson police officer positions brought an action charging that the continued use by the department of the Minnesota Multiphasic Personality Inventory (MMPI), the psychological examination utilized to test applicants for police officer positions, violated the consent decrees entered in the above cases ahd their rights secured by Title VII of the Civil Rights Act of 1964. Grizzell v. Jackson Police Department, Civ. No. J76-190(R) (filed in this Court on June 18, 1976 and still pending). In their Answer to the Complaint filed in that action, the defendants admitted that from March, 1974 to December, 1975 the passing rate of white applicants had been 59% (444 applicants) and that of black applicants had been 33.3% (273 applicants); that the MMPI is a test within the definition of the EEOC’s Guidelines or Employee Selection Procedures; and that the City had failed to conduct any validation studies to demonstrate a significant relationship between satisfactory performance on the MMPI and successful job performance. Although the defendants concede that the percentage of black employees does not equate the percentage of black population of the City of Jackson, and do not deny that the above three employment discrimination suits have “produced results”, as is conceded by the plaintiffs, they nevertheless point out that the city did voluntarily enter into consent decrees in each of the above three cases and that these consent decrees have produced a dramatically favorable hiring-increase of blacks. The city council adopted an affirmative action program to aid in obtaining an increase in the number of black city employees. In addition, other significant steps taken by the city included the formal adoption of a policy of equal employment opportunity (Exhs. D-6 and 7), the adoption of a formal promotion policy (Exh. D-8), and the employment by the city of a fulltime Affirmative Action Coordinator, who prior to his employment by Jackson, was a chief investigator for the United States Equal Employment Opportunity Commission in Jackson. This man also helped write the Affirmative Action Program for the City applying to all aspects of employment, and going beyond the requirements of the consent decrees entered into in the above cases which also were slated to be updated in July, 1977. This program consisted of posting vacancy announcements on all bulletin boards in the city departments as well as sending them to minority groups. Additionally, department heads and the City Councilmen are informed of who is hired, including their race. All applicants are permitted to compete, and no favoritism in hiring or promotion is permitted under the program. The recruitment effort also included bring-, ing blacks into managerial positions (Exhs. D-8, 9, and 10). Between January, 1970 and March, 1977 the black percentage of the total work force in Jackson increased from 33.2% to 39.3%; the percentage of blacks in monthly positions increased from 2.5% to 23.1%; and 71.2% of the increased monthly positions (378 of 531) were filled by blacks. As of June, 1977, the city had 2398 employees on its payroll, which included 977 blacks, or 40%; 1,795 monthly civil service positions above laboring class, of which 451 or 25% were blacks compared to 2.5% blacks in non-laboring classes in 1970, showing a dramatic increase and evidencing a much more favorable condition than that which existed in the city of Milwaukee, Wisconsin, by way of example. Admittedly, most of the black employees are concentrated in the laborer and unskilled laborer positions, and of the 78 Jackson city employees earning above $13,000 per year, only one was black; however, several were earning $10,000 to $12,000 per year. The evidence reveals the following results of the Affirmative Action hiring program instituted and implemented by the City of Jackson in recent years. Sixteen of the twenty-five employees on the staff of the Jackson Housing Authority are blacks, and two of eleven members of the staff of the Jackson Redevelopment Authority are blacks, one being the Financial Counsellor and the other the Property Improvement Inspector. Three of the nine employees in the City Clerk’s office are blacks, and two of them have regular contact with those who come into the City Clerk’s office for voting registration and other matters. There are six foremen in the Public Works Department of the city who make regular inspections of streets in response to requests for repaving or repairs and out of these, two are whites and four are blacks. There foremen are assigned to separate areas and reassigned periodically to other areas, and report to the coordinator who then makes a personal inspection. It is his report, in conjunction with the foremen’s report, which determines which streets in the city will be resurfaced or repaired, subject to the final approval of the City Council. Plaintiffs offered no proof that whites were hired to fill any job position with the City of Jackson ahead of or instead of any qualified black applicant therefor or that any qualified black applicant was denied employment by the City of Jackson in the last several years. This Court finds that the plaintiffs have failed to meet their burden of proving any job discrimination against blacks by the City of Jackson in the last four to five years. On the contrary, the Court is impressed with the Affirmative Action Program adopted and being effectively implemented by the City, which has produced dramatically increased hiring of black citizens to more responsible positions. This program is being updated with records maintained and which and has, as conceded by the plaintiffs, “produced results.” 2. Particular Municipal Services The plaintiffs’ complaint of discrimination against them in connection with the furnishing of municipal service generated the greatest quantity of 'evidence adduced during the trial of this case, and in particular the most evidence on the part of the defendants. The plaintiffs charge that the black citizens of Jackson have been denied equal protection because they have not been afforded municipal service comparable to those accorded the white citizenry. Their complaints relate to almost every, if not every, aspect of municipal services rendered by the city to its inhabitants, namely planning, street maintenance, storm drainage, sewerage facilities, zoning, street layout, street lighting, parks and other recreational facilities, location of bikeways, water available for fire protection, health care, police protection and consideration or courtesy. The defendants categorically deny each and every one of the foregoing allegations of discrimination and contend that in order to properly evaluate the effectiveness of Jackson’s Commission-type government it is necessary for the Court to scrutinize the delivery of particular services to both the black and white communities, and consider each service in detail with respect to each service complained of. This is the approach the defendants contend was not taken by the District Courts in Bolden v. City of Mobile, 423 F.Supp. 384 (S.D.Ala. 1976), and Blacks United for Lasting Leadership, Inc. v. City of Shreveport, 71 F.R.D. 623 (W.D.La.1976). (a) City Planning. The City of Jackson did not initiate city planning until the mid 1960’s, and the adoption of plans was not brought into focus until the city administration took steps toward acquiring federal funds in about 1969, at which time Jackson found itself in the position of being unable to provide various plans that federal agencies expected a community of that size to have already formulated. A comprehensive plan was developed in element sections in the form of a series of individual or subject reports, many of which have been introduced into evidence by both plaintiffs and defendants. These reports indicate that they constituted a concerted effort to improve the quality of life for all Jacksonians, black and white, and recognized that greater needs did exist in the lower income and minority areas in the city and accordingly assigned the first priority to improved services in those areas. The plaintiffs contend that the defendants discriminated in this area by failing to seek black participation in the city’s development goals, pointing specifically to a “community goals survey” which was performed under private contract for the City Planning Department in 1970 reflecting that of 110 persons interviewed in the survey only 9 were blacks, predictably resulting in exceedingly low priority of black needs and goals, among which were appointment of minorities to committees, low income housing, public schools, equal employment opportunity, improvement of slums, and public health facilities. It is evident that Mr. Donald Irvin, the City Planning Director, considered this survey to be “superficial,” and indicated by his letter of transmittal to the Planning Board, with a copy to the City Council for informational purposes only, with no subsequent adoption or endorsement of it by the City. (Exh.: D-73, Vol. 1, at p. 45). A previous survey taken in 1969 of the “recreational needs of senior citizens” (Exh. P-79) was based on interviews of 35.9% non-white persons, and 64.1% whites, and was taken by nine interviewers, three of whom were black retired educators, the remaining six being staff personnel in the Planning Department. That survey led to the funding of two senior citizen centers, one on Jayne Street which was formerly predominantly white, but now is in a transitional stage of mixed white and black, and the other in the College Park area which is predominantly black. (Exh. P-73, Vol. 2 at p. 145). The Planning Board developed a Community Facilities Plan for parks, recreation and open space (Exh. P-75), libraries, (P-76) and municipal fire protection (Exh. P-77) . Each of these reports was presented to the City Council together with one concerning future land use, upon recommendation by the City Planning Board, and a public hearing was held on this subject, after which they were adopted as the city’s policy in those areas. (Exh. D-73, Vol. I at p. 29). They presented in-depth analysis of existing facilities and identification of problem areas and community needs and recommended actions to alleviate the problems. Once the city had developed the general community-wide plans, it then turned toward development of plans in more depth in specific or smaller areas. In October of 1974, the City Planning Board issued a “neighborhood analysis summary”, which was a report intended to establish a format to accomplish a specific analysis “to identify problems which occur on a small area basis, to determine the incidents of these problems in terms of neighborhoods and to design a program that would assist in that area.” (Exh. P-65). At that time the Planning Board issued a report titled “Neighborhood Analysis Supplement — a Quality of Life Index,” (Exh. P-69) which was designed for use in evaluating the quality of life in particular neighborhoods. The Planning Commission then adopted a Neighborhood Development Planning Program (Exh. P-94), under which the city was divided into 86 neighborhood units, with the older inter-city neighborhoods being the initial subjects of study and planning; that is, the Board planned to begin its work in the older inter-city neighborhoods and gradually work in concentric circles out from the inter-city, eventually concluding with the peripheral neighborhoods, which are in most cases the newer developed areas of the city. The first neighborhood study to be completed was the Jackson State University area, a predominantly black neighborhood (Exh. P-95). Other methods used to obtain black input into the operation and planning of the city government were a biracial Citizens’ Advisory Committee which for several years had discussed and provided reports on important issues which had arisen in Jackson. Following the enactment of the Housing and Community Development Act of 1974, several blacks were appointed by the City Council to this committee, which was to serve as a type of clearing house for citizens’ ideas, an advocate of their needs, and a stimulus for action when necessary to achieve the goals of the Housing and Community Development Act of 1974. (Exh. P-116). The City’s Housing and Community Development Participation Plan established to implement use of the federal funds to be received under the Act, also included “town hall meetings” and meetings with citizens groups in churches and neighborhood community centers to discuss the Act and encourage citizen involvement in establishing priority for the use of the federal funds. Jackson’s Federal Programs Department has conducted two meetings a year at City Hall since the program started three years ago for the purpose of discussing the Act and use of funds by the City. (Exh. D-81 at pp. 14-15, 18). In addition, since its establishment in 1974 the Department has also held a number of neighborhood meetings throughout the City in order to gain citizen input, and most, if not all, of these meetings have been held in the predominantly black areas of the city. Approximately 14 neighborhood meetings have been held, and almost all of the proposed projects for inclusion in the application for Community Development funds from 1975 to 1977 were derived from these neighborhood meetings. These'projects include code enforcement grants, day care services, Jackson State University improvements, alleviation of Town Creek flooding, senior citizen centers and the renovation of Jones Community Center. Based upon the foregoing, this Court finds that the plaintiffs have failed to meet their burden of proving discrimination against blacks in the area of city planning; instead, the evidence shows increasing utilization of black citizens’ input in planning for the development of the city and in establishing priority for the use of federal funds for that purpose. (b) Zoning. The plaintiffs contend that the defendants have discriminated against blacks by miszoning black residential areas. More specifically, they charge that there are certain black residential areas in the city where zoning is not used to protect residential properties to the extent that it is utilized in white areas, inasmuch as industrial uses are permitted in a high percentage of land in black residential areas which are zoned commercial or industrial, whereas many predominantly white areas are zoned residential. They complain that this miszoning affects the quality of life, decreases the property values and increases the cost of upkeep. The City adopted its first Zoning Ordinance on April 16, 1929, and it remained in effect until superceded by the present Zoning Ordinance which was adopted on May 29, 1974 (Exh. P-66). The 1929 ordinances were of a cumulative type, permitting residential development in industrial zone areas, resulting in the non-conforming structure being the residential, not the industrial. This is not permitted under the current 1974 ordinance. In addition to prohibitive costs and other problems associated with any wholesale attempt by the city to rezone commercial or industrial property to residential, other legal requirements must be met as a prerequisite pending a municipality amending its zoning ordinance. Before rezoning, it must be shown that there was some mistake in the original zoning or that conditions in the neighborhood have changed so as to warrant rezoning. Underwood v. City of Jackson, 300 So.2d 442 (Miss.1974). The Mississippi Supreme Court has recently held in the City of Jackson v. Shell Oil Co., 347 So.2d 340, (Miss.1977) that when the 1974 Comprehensive Zoning Ordinance was adopted changing the zoning status of Shell’s property, the doctrine of res judicata applied, that is, when Shell filed a timely petition to maintain the status of its property, the City had no authority to change it absent a material change in circumstances occurring since it was last zoned. Jackson has rezoned several areas near Jackson State University and in the Albemarle Street area, both predominantly black areas, from industrial to residential because of the fact that they were predominantly residential. Future industrial development would be located in areas designated for such use within the zoning ordinance based upon the City’s adopted future use plan. This Court therefore finds from the evidence that the City has not purposely or intentionally discriminated against blacks in the area of zoning, and thus the plaintiffs have failed to meet their burden of proving any such discrimination. (c) Street Resurfacing or Repairs. The plaintiffs charge that the City of Jackson has discriminated against blacks in the area of services which encompasses street and sidewalk construction and maintenance, contending that there has been discrimination in the area of resurfacing of streets, connecting streets across creeks, paving and street width. No evidence was offered by the plaintiffs to substantiate any claim of discrimination as to street construction or the construction or maintenance of sidewalks, but all of their evidence dealt with alleged discrimination in the maintenance and paving of streets, street width, and connecting of streets across creeks which divide predominantly white and black neighborhoods. In support of these contentions, the plaintiffs relied upon the testimony of Mr. James P. Dahlberg, a twenty-seven year old municipal services consultant for the Lawyers Committee for Civil Rights in Jackson who worked for fourteen months in the Government Services Equalization Center in Washington, D.C., but who was not a member of any professional society, had no formal education in engineering and urban planning, accounting or city government and who has completed one year of law school. The witness testified that pursuant to Jackson’s street resurfacing program which began in 1973 only 25 (15%) of the 175 miles of streets resurfaced were located in the 48 contiguous majority black census enumeration districts where 94% of the black population of Jackson resides; that since approximately 27% of Jackson’s residential streets are located in this area, blacks have received little more than half their entitlement under this program. He concluded that this disparity can be explained only on the basis of race since there is a greater concentration of industrial use in black areas and flooding conditions which may cause street deterioration are well documented in black areas of the city. Mr. Dahlberg further testified that an examination of street resurfacing on