Moody v. Flowers

JOHNSON, District Judge (dissenting).

I respectfully dissent.

I think the conclusion is inescapable that the principles of Reynolds v. Sims 1 —that is, the principles of equality among voters within a state and the fundamental precept that representative government is one of equal representation for an equal number of people without regard to race, sex, economic status, or place of residence 2 — apply to these local organs of government. These boards of revenue perform important governmental functions, and are designed to be controlled by the voters over which they have jurisdiction. The exercise of their powers, which include the important powers to levy and collect taxes, 3 to spend for a variety of governmental and public purposes, 4 and to establish, change, discontinue, and repair roads, 5 materially and substantially affects the lives, property, and welfare of the citizens of Houston and Randolph Counties. Moreover, in discharging their duties, the boards are no less representative or reflective of the views of the citizens because they are smaller than the state unit. To the contrary, rather than limit the principles of Reynolds, as the majority opinion does, it would seem that these principles might well have their most meaningful application at the local level. *202 Viewed another way, if, as seems evident, the thrust of the Supreme Court, decisions is that it is inherent within the concept of “equal protection” that a person has a substantial right to be heard and to participate, through his elected representatives, in the business of government on an equal basis with all other individuals, no reason or justification exists for differentiating so far as that right is concerned, between governmental business carried on at the state level and that conducted on the local level.

The two cases primarily relied on by the majority are Glass v. Hancock County Election Commission, 156 So.2d 825 (Miss.1963), and Tedesco v. Board of Supervisors of Elections, 43 So.2d 514 (C.A.La.1949). In Glass , the Supreme Court of Mississippi had affirmed the denial of injunctive relief on the theory that there was an adequate remedy at law, namely, available statutory procedures for redistricting. Accordingly, I do not find dismissal of the appeal by the Supreme Court, 378 U.S. 558 , 84 S.Ct. 1910 , 12 L.Ed.2d 1035 (1964), either controlling or indicative of the course this Court should follow. In Tedesco, the Louisiana appellate court concluded that the statute therein involved was not violative of any provision of the Constitution, although there was clear disparity of population, and affirmed the judgment dismissing the suit. Plaintiff’s appeal to the Supreme Court was “dismissed for want of a substantial federal question.” 339 U.S. 940 , 70 S.Ct. 797 , 94 L.Ed. 1357 (1950).

Reliance on Tedesco, in the cases now before this Court, is misplaced. First, I find it very difficult to accept the proposition that Tedesco, decided in 1950, can be taken to indicate a judicial attitude on the part of the Supreme Court “to make haste slowly” in the application of a doctrine formulated in 1964. Second, I think it is important to emphasize that Tedesco did not hold that the Equal Protection Clause did not extend to the rights of voters in municipal elections or that no relief for the deprivation of the constitutional right of equal representation was available in the federal courts. Tedesco merely held that under the doctrine then prevailing the question of reapportionment was not justiciable. On this point, Tedesco was revoked by the Court in Baker v. Carr, 369 U.S. 186 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962):

[T]he refusal to award relief in Cole-grove resulted only from the controlling view of a want of equity. Nor is anything contrary to be found in those per curiaras that came after Colegrove. (Emphasis added.) 369 U.S. at 234 , 82 S.Ct. at 719 .

Justice Clark, concurring in Baker , said this of Tedesco:

Similarly, the Equal Protection Clause was not invoked in Tedesco v. Board of Supervisors [of Elections, La.App., 43 So.2d 514 ] ** * *. 369 U.S. at 252, n. 2 , 82 S.Ct. at 729 .

And Justice Douglas, also concurring in Baker , said:

With the exceptions of Colegrove v. Green * * * and the decisions they spawned, the Court has never thought that protection of voting rights was beyond judicial cognizance. Today’s treatment of those cases removes the only impediment to judicial cognizance of the claims stated in the present complaint. 369 U.S. at 249-250 , 82 S.Ct. at 727 . (Emphasis added.)

Thus, if anything, the rejection of Tedesco by Baker indicates the question is appropriate for judicial consideration.

Moreover, as a general proposition, I do not find anything sufficiently extraordinary about these cases which would justify a court’s refusing to grant relief on the basis that “It is not for us to forecast the likelihood that the Supreme Court will ultimately extend the principles of Reynolds v. Sims to the * * * subordinate political units of the states * * Thus, just as this Court did not hesitate to consider the propriety of applying the newly developed principles of Brown v. Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954), to the area of public transportation in Browder v. Gayle, 142 F.Supp. *203 707 (M.D.Ala.), aff’d per curiam, 352 U.S. 903 , 77 S.Ct. 145 , 1 L.Ed.2d 114 (1956) — even though Plessy v. Ferguson, 163 U.S. 537 , 16 S.Ct. 1133 , 41 L.Ed. 256 (1896), had not been expressly overruled — or, in recognizing new developments in the area of due process of law, to consider, without the Supreme Court’s first having done so, whether women should be allowed to serve on juries, White v. Crook, 251 F.Supp. 401 (M.D.Ala.1966), we should not in the present cases cling to the doctrine of an older jurisprudence (Tedes co), or, in the cloak of judicial restraint, and forbearance, decline to exercise juf risdiction in cases where the right to judicial relief is clear.

Nor do I find the argument that so long as the people of a state are afforded equal protection by true equality of representation in the state legislature the courts ought not to interfere with county governments “which have been created by the legislature as involuntary political subdivisions of the state.” It cannot seriously be contended that the proscriptions of the Fourteenth Amendment do not extend to local governments, or that the states may conduct their affairs with absolute discretion through their local agencies or appendages without recognizing and complying with basic constitutional principles. In Cooper v. Aaron, 358 U.S. 1 , 78 S.Ct. 1401 , 3 L.Ed.2d 5 (1958), the Court stated:

[T]he prohibitions of the Fourteenth Amendment extend to all action of the State denying equal protection of the laws; whatever the agency of the State taking the action * * * or whatever the guise in which it was taken * * * 358 U.S. at 17 , 78 S.Ct. at 1409 .

In this connection, see also Gomillion v. Lightfoot, 364 U.S. 339 , 81 S.Ct. 125 , 5 L.Ed.2d 110 (1960), where the Court stated:

Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution. * * *

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The opposite conclusion * * * would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions. ‘It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.’ 364 U.S. at 344-345 , 81 S.Ct. at 129 .

It was on the basis of these authorities and this reasoning that the Supreme Court of Wisconsin concluded in the case of State ex rel. Sonneborn v. Sylvester, 26 Wis.2d 43 , 132 N.W.2d 249 (1964):

Characterizing counties as “political subdivisions created to perform functions of the state locally and existing as a result of the superimposed will of the state” or as “pure auxiliaries of the state” or as “an arm of the state” or , “local organizations” which rank low down on the scale or grade of corporate existence,” or “quasi municipal corporations” * * * is not determinative of whether the 14th Amendment applies to their composition when the members of a county board are determined by the elective process.

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County boards * * * must be considered a unit of government which should be equally representative of the people of the county. 26 Wis.2d at 55-56 , 132 N.W.2d at 555 .

It was also in recognition of these clear principles that Justice Fuld, speaking for the highest court in the State of New York, in Seaman v. Fedourich, 16 N.Y.2d 94 , 262 N.Y.S.2d 444 , 209 N.E.2d 778 (1965), stated:

It is axiomatic that local governmental units are creations of, and exercise only those powers delegated to them by, the State * * * and, certainly, if the latter may exercise its legislative powers only in a body constituted on a population basis, any general elective municipal organ to which it delegates certain of its powers must, by a *204 parity of reasoning, be subjected to the same constitutional requirement. 262 N.Y.S.2d at 449 , 209 N.E.2d at 782 .

One of the primary bases for my being unable to agree with the majority lies in the logic of this position. The judicial support for such position is impressive. 6

Finally, the majority opinion indicates that “The Legislature of Alabama, which alone has the power to redistrict these counties, has never been advised * * * to do so.” It is, of course, true that the policy of courts in the area of reapportionment has been to accord petitioners a full opportunity to avail themselves of whatever political remedy they might have. 7 In invoking such a judicial policy, however, the proper procedure is not to dismiss the petitions, but to retain jurisdiction and stay the proceedings to allow the State a reasonable time to adopt a valid scheme of reapportionment. I would concur in such a disposition of the cases. For the several reasons stated, I cannot concur in the dismissal of these cases.

. 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed. 2d 506 (1964).

. These principles had been nurtured a year earlier in Wesberry v. Sanders, 376 U.S. 1, 18 , 84 S.Ct. 526, 535 , 11 L.Ed. 2d 481 (1964) : “[0]ur Constitution’s plain objective [is] * * * making equal representation for equal numbers of people the fundamental goal * * *. That is the high standard * * * which the Founders set for us.”

. See Title 12, §§ 12(3), 185, 186, 191; Title 51, § 71; Title 29, § 31, Code of Alabama.

. See Title 12, §§ 11, 12, 16, 17, 18, 19, 22, Code of Alabama.

. See Title 12, § 11, Code of Alabama.

. See Delozier v. Tyrone Area School Board, 247 F.Supp. 30 (W.D.Pa.1965) (local school board) ; Bianchi v. Griffing, 238 F.Supp. 997 (E.D.N.Y.1965) (county board of supervisors) ; Damon v. Lauderdale County Election Commissioners, Nat’l Municipal League, Court decisions on Legislative Reapportionment, Vol. 13, p. 139 (Civil Action No. 1197-E, U.S. Dist. Court, S.D.Miss., Oct. 21, 1964) ; Ellis v. Mayor and City Council of Baltimore, 234 F.Supp. 945 (D.Md.1964) (city council) ; Hanlon v. Towey, 142 N.W.2d 741 (Supreme Court of Minn., May 20, 1966) (county commissioners) ; Angostini v. Lasky, 46 Misc.2d 1058 , 262 N.Y.S.2d 594 (1965) (county board of supervisors) ; Seaman v. Fedourich, 16 N.Y.2d 94 , 262 N.Y.S.2d 444 (1965) (city council) ; Mauk v. Hoffman, 209 A.2d 150 (1965) (county board of freeholders) ; Matter of Goldstein v. Rockefeller, 45 Misc.2d 778 , 257 N.Y.S.2d 994 (1964) (county board of supervisors) ; State ex rel. Sonneborn v. Sylvester, 26 Wis.2d 43 , 132 N.W.2d 249 (1964) ; Brouwer v. Bronkema, Case No. 1855, Cir. Court Kent County, Mich. 1964, (board of supervisors). See also Lynch v. Torquato, 343 F.2d 370, 371-372 (3rd Cir. 1965).

. See the procedure followed by this Court in Sims v. Frink, D.C., 208 F.Supp. 431 (1962), and Sims v. Baggett, 247 F.Supp. 96 (1965), where in recognition of the judicial policy of affording citizens, through their legislature, a reasonable opportunity to secure their political remedies, this Court, after recognizing the controlling constitutional principles, at first afforded the Alabama Legislature an opportunity to reapportion, and then, upon its failure to do so, acted only moderately and provisionally with the expressed hope that the Legislature would then provide for true reapportionment. The Supreme Court of the United States, in Reynolds v. Sims, supra, 377 U.S. at page 586 , 84 S.Ct. at page 1394 expressly approved such a procedure when it stated: “We feel that the District Court in this case acted in a most proper and commendable manner. * * * And it correctly recognized that legislative reapportionment is primarily a matter for legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.”