Petition — Creel v. Freeman

Supreme Court, U. S.

FILF D.-

. NOV 9 197F

MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 26-655

LONNIE CREEL, JR., et al., etc.,

Petitioners,

vs.

FRANK E. FREEMAN, et al., etc.,

Respondents.

<

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Edward Still

601 Title Building

Birmingham, AL 35203

Laughlin McDonald

Neil Bradley

52 Fairlie Street Nw

Atlanta, GA 30303

Melvin L. Wulf

22 East 40th Street

New York, NY 10016

ATTORNEYS FOR PETITIONERS

INDEX

Opinions Below . .. .. +... « « 2

Sas eo 4! ee Se oO 2

Questions Presented. ..... « 3

Constitutional and Statutory

Provisions Relied Upon. .... 4

Statement of the Case. .... « 5

Reasons the Writ Should be Granted

1. The Decision Below is in

Conflict With a Decision of the

United States Court of Appeals

for the Fourth Circuit. .... 8.

2. The Decision of the Court

Below is Not in Harmony With This

Court's Decisions Holding That

the Cause of Dilution of

the Vote Must be Closely Scruti-

nized to Determine That it Effec-

tively Promotes a Compelling State

EMGOEOSEe ws wee eevee eee 11

A. Petitioners should not have

the burden of proving a com-

pelling state interest in ex-

cluding non-residents from

voting. . « «© «© « « e« © © & e 11

B. In order to rnrove the

Gilution of their votes, peti-

ticners are not reouired to

demonstrate that the city

residents dominate the elec-

is + & 6 ee ©«¢ & 6 6%

C. Even if revenue support

entitles non- -residents to the

franchise, it is not present

fim GAS GOOG. 2 oe te te woe 6

GCompawmesem. «seeeeteetts

ii

13

TABLE OF AUTHOPITIES

Cases

Chapman v. Meier,

Saw Wels B Ceeveee.t ©0666 © 6

Cipriano v. City of Houma,

See Galle VOR CBPeenes ©-6 © © ¢ «@

City of Phoenix, Arizona v.

Kolodziejski,

Bee Gellc Bee Geerené © eo eo eo 8

Evans v. Cornman,

Bee Gelle Gaw Ceerene «© «© 0 0 6 8

Hill v. Stone,

Gan Was Dee Geevmee w@ eo eo ee

Kramer v. Union Free School

District,

395 U.S. 621 (1969)... .- °

Locklear v. North Carolina State

Board of Elections,

514 F.2d 1152 (4th Cir. 1975). .

Mahan v. Fowell,

G38 G8. Bae Geeverse «© © 6 6 © «

Reynolds v. Sims,

377 U.S. 533 (1964)... « “ar

Salyer Land Co. v. Tulare Lake

Basin Water Storage District,

410 0.8. 7Fid (i973). «© e © @ 2

Other Authorities

United States Constitution

Amendment I. ..«+e+«eeceeee e

Reepmmmeemse BEVs «© «© © © © © @ @

United States Code

Title 28, §1331. . . »« «© « «© « »

Title 28, §1343. .

Pitle 42, GASES. «© «© es e eo ee

iii

ll, 12

8, 9

10, 13

14

12, 14

ll, 12

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

Page

No,

Alabama Code (1958 Recomp.) |

Title 52, 963. «ce e«eseseee8 ee 4, 6 LONNIE CREEL, JR., JACK SULLIVAN, CLINT

Title 52, $148 . « «© e«eeeee 6 FOREMAN, TOM W. GAINES, DAN WHITAKER, and

Pitle SZ, GEES « + 6 +6 6 © 8 6 JAMES M. ELLISON, individually and for all

others similarly situated,

Acts of Alabama, 1965 Reg. Session

Act Wo. 136. « «© se sees 4 Petitioners,

vs

FRANK E, FREEMAN, E.K. DARNES, CLARENCE

HENDRIX, EUGENE MCDANIEL and DORIS ROBERTS,

individually, as members of the Walker County

Board of Education, and on behalf of all

other school boards and school board members

similarly situated; ROBERT E. CUNNINGHAM,

individually and as Superintendent of Educa-

tion of Walker County, and on behalf of all

other Superintendents similarly situated;

PROBATE JUDGE FLORA L. STEWART, SHERIFF HOWARD

TURNER, and CIRCUIT CLERK SYLVESTER ANTON in

their official capacities as members of the

board of supervisors of elections and on

behalf of all other boards of supervisors

similarly situated,

Respondents.

| PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE’ FIFTH CIRCUIT

iv

Petitioners pray that a writ of certio-

rari issue to review the judgment of the

United States Court of Appeals for the Fifth

Circuit entered in the above-styled case.

OPINIONS BELOW

The opinion of the United States Court

of Appeals for the Fifth Circuit is reported

at 531 F.2d 286 and is appended hereto at la.

The denial of the petition for rehearing and

suggestion for rehearing en banc is noted at

537 F.2d 1143 and is appended hereto at 10a.

The opinions and orders of the United States

District Court for the Northern District of

Alabama granting summary judgment are un-

reported and appended hereto at lla-l2a.

JURISDICTION

The opinion of the United States Court

of Appeals for the Fifth Circuit was entered

on May 10, 1976. A timely petition for re-

hearing and suggestion for rehearing en banc

was denied on August 12, 1976. This Court

has jurisdiction to review the judgment below

under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether a statute which allows

residents of one school district to vote

in the elections of another school district

dilutes the vote of residents of the second

district in violation of the equal protec-

tion clause of the Fourteenth Amendment of

the Constitution of the United States?

2. Whether the residents of one school

district are provided a sufficient interest

in the affairs of another school district

justifying their right to vote in the second

district (when no reciprocal right to vote

exists) because the districts share certain

facilities, revenues, and draw students from

each others’ jurisdiction?

3. Whether a claim based on dilution

of the franchise because of overinclusiveness

of the franchise must fail if there is a

finding that the challenged electorate does

not have the voting strength by itself to

dominate the elections?

4. Whether plaintiff electors claiming

dilution of the franchise because of over-

inclusiveness of the franchise have the

burden of demonstrating a compelling state

interest in limiting the franchise?

5. Whether domination of elections by

electors challenged on the basis of over-

inclusiveness of the franchise may be justi-

fied by a rational relationship test unless

there is evidence of invidious discrimination?

6. Whether summary judgment is pro-

perly affirmed under facts not found by the

district court and which are not undisputed

in the record?

CONSTITUTIONAL AND STATUTORY

PROVISIONS RFLIED UPON

The constitutional provisions and other

provisions of law involved in this case are

set forth in full in the Appendix, 13a, et

seq., as follows: ba

United States Constitution, Amendment I

United States Constitution, Amendment

XIV, §1

United States Code, Title 42, §1983

Ala. Code, Title 52, §63 (1958 Recomp.)

Acts of Alahama, 1965 Regular Session,

Act No. 135.

STATEMENT OF THE CASE

This action was filed on January 28,

1974, by the present petitioners, as repre-

sentatives of a class of plaintiffs who

live within the jurisdiction of the Walker

County, Alabama, Board of Education. The

complaint alleged that the practice of

allowing residents of cities with school

boards to vote in county school board elec-

tions was unconstitutional in that it

allowed persons with no substantial interest

in the county school board to vote in its

elections. The defendants in the suit were

the Superintendent of Education, the members

of the Board of Education, and the members

of the Board of Election Supervisors of

Walker County, Alabama. Each defendant

was sued as a representative of the class

of officials in 36 other counties. Juris-

diction was based on 28 U.S.C. §§ 1331

and 1343, 42 U.S.C. § 1983 and the first

and fourteenth amendments of the United

States Constitution,

The court eventually disallowed the

class action as to the other counties and

the case proceeded as a clags action con-

cerning only Walker County.

1. That aspect of the district court's

ruling was not appealed nor was its ruling

that a three-judge court was not necessary.

After discovery the district court

granted the summary judgment in favor of

defendants, and the court of appeals

affirmed.

The evidence, all documentary in form,

may be summarized in pertinent part as

follows:

Methods of Election: Alabama law pro-

vides for each county one board of education

with five members to be "elected by the

qualified electors of the county." Ala.

Code, Tit. 52, §63, infra, l4a. A local

act applying only to Walker County provides

that the chairperson shall be elected at

large and the four members from individual

districts, infra, 15a.

City school boards are permitted by law

for each city of over 5,000 inhabitants,

Ala. Code, Tit. 52, §148. The cities of

Carbon Hill and Jasper, located in Walker

Countv, have independent school boards ap-

pointed by the city governing body, Ala.

Code, Tit. 52, §152. No person is excluded

from voting in the Walker County school board

elections because of his or her residence in

Jasper or Carbon Hill. Each city school

board is essentially equal in its power,

authority, and duties to a county schco]

roard. When a city school board is created,

its territorial jurisdiction is subtracted

from the jurisdiction of the county school

hoard. School boards -- both city and

county -- are equal and exclusive.

6

None of the incumbent county school

board members lives in Jasper or Carbon

Hill.

Financial Structure: The school systems

are supported by ad valorem and sales taxes.

One ad valorem tax is collected from the whole

county for the state's general fund, from

which it returns on a basis of need to the

school boards in Alabama. A second ad valorem

tax collected in the whole county is divided

between the three systems on the basis of

average daily attendance in accordance with

a state formula. A third ad valorem tax is

collected in each of the school tax districts

and expended only in the district of collection.

Additionally, the two cities each have a sales

tax paid to their own school boards.

School Locations: The Walker County

School System operates one school not within

its territorial jurisdiction -- the Walker

Area Vocational Center located in Jasper.

This institution was constructed with city,

county, and federal funds. It is operated by

the Walker County Board with its own funds, and

an additional $50.00 per student paid by the

Jasper School Board for each city resident at-

tending the Center. No other school operated

by one school board is located in the jurisdiction

of another school board.

Student Attendance: About half of the

students attend:ng Carbon Hill schools and the

high school in Jasper are residents of the

county school board jurisdiction. The number

of city residents attending county schools if

any there be is not reflected in the record.

REASONS THE WRIT SHOULD BE GRANTED

1. The Decision Below is in Conflict With

a Decision of the United States Court

of Appeals for the Fourth Circuit.

The decision below cited and distinguished

the decision of the United States Court of

Appeals for the Fourth Circuit in Locklear v.

North Carolina State Roard of Flections, 514 F.2d

1152 (4th Cir, 1975), In Lockle

circuit held that allowing -Pestaents os —

several city school districts to vote in the

elections of the county school district di-

luted the votes of the non-city residents,

was over-inclusive, and therefore was a denial

of equal protection. The fifth circuit dis-

tinguished the Locklear case on the following

grounds:

(a) that the City of Jasper had made

a substantial investment in the county school

board's vocational school ard headquarters;

(b) that the City of Carbon Hill charged

no extra fee to the half of its students who

were non-residents;

(c) that there is a net outflow of tax

money from the cities to the non-city area;

(qd) that the plaintiffs here did not

prove that the city residents dominated the

county school hoard elections.

ae EE RO TL TN ee Ne eee.

Assuming arguenco that these facts are

correct (petitioners contest the correctness

of the latter two of these), the court below

drew distinctions without differences, In

both cases, the county school board performed

certain regional administrative duties with

the agreement of the other boards and with

them bearing part of the cost. For instance,

in Locklear, the Robeson County School Board

administered the jointly-funded transporta-

tion system, an Fducational Resoure Center

and several federally funded projects, 514

F.2d at 1155. The school boards apparently

decideec that there was an economy of scale

in certain functions and had agreed that one

school board -- the county district board --

should administer the project. It could just

have easily been one of the other boards.

The city boards are authorized by

law to perform these functions and

provide these services for them-

selves. In placing these responsi-

bilities on the county board, the

city boards could undoubtedly retain

contractual rights of supervision

and control over the county board's

performance. ... By mutual agree-

ment, the various hoards may sub-

sequently decide to place the

primary responsibilicy for the

performance of one or more of these

joint functions on one or more of

the city boards.

514 F. at 1155-56 (emphasis in original).

9

To distinguish these facts, the fifth

circuit cites an example of the county board

providing a service to the city boards and

examples of the citv hoards providing ser-

vices to the county board or residents of

the county district.

First the court below states that the

City of Jasper made a substantial investment

in the county district's vocational school.

The evidence shows that the Jasper School

Board contributed $212,500.00 for the con-

struction of the Walker Area Vocational

School, but that the Walker County School

Board now pays all operating costs. State

law did not require the construction con-

tributions nor is the Walker County School

Roard required to let non-residents attend

the vocational school. This compares with

Locklear, where there was no state law

requiring that the Robeson County Educational

Resource Center be established, nor any

mandate as to its funding.

Similariy, there is no state law which

compels the Jasper School Board to rent a

building to the Walker County School Board

for $1.00 a year or which compels the Carbon

Hill syster to admit non-residents without

charging fees. Each of these is a unilateral

act on the part of the respective city hcard

which can be unilaterally terminated. There

may even be a guid pro quo, hut the“rranchise

has not been bartered for. Nor would the

absence of fiscal exchanges alter the state

statute. If anyone was to obtain the right

to vote because county district residents

attend school in the two cities, it should

10

be county residents. It is they who have an

interest in the governing of the school system

which their children attend. No such interest

on the part of city residents has been shown.

No evidence was presented to show that city

residents even attend county district schools.

2. The Decision of the Court Below is Not

in Harmony With This Court's Decisions

Holding That The Cause of Dilution

of the Vote Must be Closely Scrutinized

to Determine That it Effectively

Promotes a Compelling State Interest.

A. Petitioners should not have

the burden of proving a com-

pelling state interest in

excluding non-residents from

voting.

This Court has repeatedly held that in

elections of general interest, restrictions

on the franchise other than residence, age

and citizenship must promote a compelling

state interest in order to survive constitu-

tional attack. Hill v. Stone, 421 U.S. 289

(1975); City of Phoenix, Arizona v. Kolodziej-

ski, 399 U.S. 204 (1970) ; Evans Vv. Cornman,

398 U.S. 419 (1970}; Kramer v. Union Free

School District, 395 U.S. 621 (15695);

Cipriano v. City of Houma, 395 U.S. 701 (1969).

The petitioners do not contend that the county

school board elections are of a special nature

such that city school board residents should

be excluded, compare, Salyer Land Co. v.

Tulare Lake Basin Water Orage District,

710 U.S. 719 (1973); they Seatend that such

11

persons are in fact non-residents, As such,

their presence within the franchise dilutes

the votes of petitioners and members of their

class. Reynolds v. Sims, 377 U.S. 533, 5€2

(1964); Framer v. Union Free School District,

at 626.

Just as variations in the interests of

property owners in a general election do not

justify disenfranchising those not most

directly affected by certain taxes, the

collection of taxes does not automatically

enfranchise non-residents. $ee, Salyer Land

Co. v. Tulare Lake Basin Water Storage

District, at 729, n. 9.

The creation of city school hoard creates

separate and parallel hodies of cgovernment,

just as certainly as deannexation. The city

school hoards are not a subpart of the county

school board government but a new and indepen-

dent governmental hody. Yet the court of

appeals below held that petitioners "have

failed to sustain their hurden of showing

that their proposed 'fencing out' of Jasper

and Carbon Hill residents from voting in

county board elections is required by. a com-

pelling state interest." 6a. Not only did

the court of appeals reverse the constitutional

burden where petitioners claim the dilution

of their vote, but petitioners urge that per-

mitting non-residents to vote based on

joint revenue statutes and acts of cooperation,

where there is no reciprocal right, is not

rationally related to any state interest.

12

Perhaps the state may broaden its fran-

chise, eschewing all limitations of residence.

But it must do so equally, and the franchise

extension here runs only from city to county,

and not vice versa.

B. In order to vrove the dilution

of their votes, petitioners are

not required to demonstrate

that the city residents dominate

the elections.

The court below correctly recognized that

Locklear v. North Carolina State Board of

Elections, 514 F.2d0 1152, 1153-54 (4th Cir.

1975), challenged the dilution of votes, not

the domination of elections. 8a. Yet the

court sought to find that city residents did

not control the elections, 4a, and concluded

that petitioners could not prevail "where

there is no evidence of invidious discrimina-

tion which might arise from domination of

elections by Jasper and Carbon Hill voters.”

9a.

1. The facts upon which the court of ap-

peals relied were that non-city voters out-

numbered city voters. 4a. Petitioners took

issue with this in their petition for rehearing,

arguing that this cannot be determined from

the record since election district lines do not

follow school district boundaries and that this

was an appeal from the granting of defendcants'

motions for summary judgment.

The court of appeals in essence treated the

case as an election contest. But where dilution

(footnote continued to next page)

13

In this the court of appeals established

a new standard tor invidious dilution of the

franchise -- it exists only when the elec-

tions are impermissibly "dominated."

Petitioners contend that where the voting

strength challenged constitutes nearly thirty

per cent of the votes in a particular election,

see 4a, the dilution is indeed invidious.

Reynolds v. Sims, 377 U.S. 533, 561 (1964).

e court of appeals did not correctly apply

this concept, for it failed to recognize that

unequal vetina strength is not rendered in-

vidious by its degree, but by its lack of

justification. Mahan v. Howell, 410 U.S. 315

(1973).

C. Even if revenue support entitles

non-residents to the franchise,

it is not present in this Case.

The court of appeals rested its decision

in major part on its view that there existed

a net outflow of taxes from the city to the

county school system. 9%a. While this Court

does not sit to assure the correctness of

every case, petitioners urge that this initial

finding by an appellate court to affirm summary

judgment was erroneous and has a bearing on

whether review should be granted.

The court of appeals correctly found that

73 per cent of the 4 mill tax collected county

wide went to the county school system, 5a. But

(footnote continued from preceding page)

is the issue, the question is not whether elec-

tions would have different results, but whether

voting power is minimized. Chapman v. Meier,

420 U.S. 1 (1975).

14

it then assumed that 73 per cent of the

revenue collected in the Citv of Jasper went

to the county. This assumes, without basis

from the record, that the revenues collected

in the two cities exceeded 27 per cent of the

revenue collected county wide. It also ignores

that fact that sales taxes probably flowed from

county residents to the city school systems,

If petitioners' franchise is to be diluted

by the inclusion of non-residents, then the

basis for this unusual extension of the fran-

chise should be justified by fact. Petitioners

should be allowed their day in court to dis-

prove the assumptions of the appellate court.

1. The only facts in the record were the

amount collected county wide, that the county

school system received 73 per cent of the

total, and the amount collected in the City

of Jasper. The latter was 9 ver cent of the

total, so unless the Carbon Hill (a city with

one-fifth the population of Jasper) revenue

was double that of Jasper, there was a net

flow of money from the county to the cities.

15

CONCLUSION

For the foregoing reasons, a writ of R

certiorari should issue te review the judc-

ment of the court of appeals.

Resrectfully submitted,

Edward Still

€01 Title Building

Birmingham, AL 35203

Laughlin McDonald

Neil Pradley

52 Fairlie Street NW

Atlanta, GA 30303

Melvin L. Wulf

22 East 40th Street

New York, NY 10016

ATTORNEYS FOR TPF

PETITIONERS

16

LONNIE CREEL, JR., et al.,

Plaintiffs-Appellants,

Vv.

FRANK E. FREEMAN, et al., Defendants,

WALKER COUNTY BOARD OF EDUCATION, etc.,

et al.,

Defendants-Appellees.

No. 74-4105.

United States Court of Appeals

Fifth Circuit

May 10, 1976.

Before BROWN, Chief Judge, THORNBERRY,

Circuit Judge, and MILLER,* Associate

Judge.

MILLER, Associate Judge:

Appellants are residents of Walker County,

Alabama, who live outside the city limits of

Jasper and Carbon Hill, which are located in

* Of the United States Court of Customs

and Patent Appeals, sitting by designation.

la

the county. They challenge the constitu-

tionality of Alabama statutes! under which

residents of Jasper and Carbon Hill, who

vote for officials, who, in turn, appoint

the members of their respective independent

city school boards (Ala.Code, tit. 52, § 152

(recompilation 1958)), also vote for some of

. I. Ala.Code, tit. 52, § 63 (recompila-

tion 1958) provides in part:

§63. Members.- The county board of ed-

ucation shall be composed of five members,

who shall be elected by the qualified

electors of the county.

Act No. 138 of the Special Session of the Ala-

bama Legislature of 1965 (Acts of Ala., Vol. I)

provides in part as follows:

Section 1, The general supervision and

control of the public schools of Walker

County shall be vested in a county board

of education, which shall consist of a

chairman and four associate members.

Section 2. The chairman of the board

shall be a resident and cualified voter

of any district or beat in the county.

-»- He shall be nominated and elected by

the cualified voters of the entire county.

Section 3. One member of the board shall

be a resident and qualified elector of

each of the four districts from which mem-

bers of the county governing body are

elected. ... One member of the board shall

be nominated and elected by qualified

electors of district one; one member shall

be nominated and elected by the qualified

electors of district two; one member

(footnote continued to next page)

2a

the five members of the county board of educa-

tion, which has jurisdiction outside the city

limits of Jasper and Carbon Fill, and for the

county superintendent of education, It is

alleged that this system allows "persons with

no substantial interest in the county school

board to vote in its elections," thus "diluting"

the votes of the noncity residents of Waiker

County. Appellants seek, among other things,

to void and enjoin enforcement of the Alabama

statutes insofar as these permit residents of

Jasper and Carbon Hill to vote for members of

the county board of education and the county

superintendent of education, and to enjoin

certification of the results of any election

in which such city residents have voted for

such officials. This appeal is from a summary

judgment granted by the district court on

motions of appellees, Frank Freeman and other

members of the Walker County Board of Education,

the members of the Board of Supervisors of

Elections of Walker County, and Robert Cunning-

ham, Walker County Superintendent of Education.

We affirm.

Tfootnote continued from preceding page)

shall be nominated and elected by the

cualified electors of district three;

and one member shall be nominated and

elected by the qualified electors of

district four,

Act No. 86 of the Alabama Legislature of 1935

(Local Acts of Ala.) provides for countywide

election of the Walker County Superintendent

of Education.

3a

FACTS

The City of Jasper is located in district

one, and the City of Carbon Hill is located

in district two. No Jasper or Carbon Hill

residents vote in districts three or four.

Inthe June 1974 primary election (tantamount

to final election), a total of 2,357 votes

was cast in district two for county board

member -- 755 from Carbon Hill and 1,602 from

outside Carbon Hill. In the May 1972 county-

wide primary election for chairman of the

county board, a total of 13,500 votes was

cast -- 4,161 from Jasper and Carbon Hill

and 9,339 from the rest of the county. Ap-

pellants do not allege that Carbon Hill or

Jasper voters dominate the elections in their

respective county school districts, much less

the countywide elections. Indeed, none of

the incumbent bgard members lives in Jasper

or Carbon Hill.

The buildine which houses the offices of

the Walker County Board of Fducation and its

workshop and textbook center is located with-

in the city limits of Jasper. The Jasper

school board paid $100,000 for the purchase

of the property and rents it to the county

board for $l a year.

The Walker Area Vocational School, which

is also located within the city limits of

~ 2. The incumbent county superintendent

of education resides within the city limits

of Jasper. In the May 1974 primary election

for this office, a total of 15,889 votes was

cast -- 4,929 from Jasper and Carbon Hill and

10,960 from outside the two cities.

4a

Jasper, is operated by and under the exclu-

sive control of the county board. However,

the Jasper school board contributed $212,500

towards its construction. In 1974 the voca-

tional school had 691 students of which 114

lived inside the city. A charge of $50 is

made for each city student in attendance, and

the Jasper school board pays it.

Within the city limits of Jasper is Walker

High, a senior high school, which i#-1974 had

an enrollment of 950 students. Of these, 4828

lived outside the city limits and 257 were

transported to the school by the county board.

In 1974, the Carbon Hill school system

had 965 students of which 482 lived outside

the city limits. They were transported by

buses owned and operated by the county board

and were charged no fee.

A 4-mill tax is collected countywide,

including property within the city limits of

Jasper and Carbon Hill. The total collected

in 1973 was $394,524, including $35,501 from

property within the city limits of Jasper.

Of the total, 73 percent went to the county

board under a minimum per pupil school program.

This would mean that of the $35,501 paid on

property in Jasper, $25,915 went to the county

board.

OPINION

The facts of this case clearly show a

substantial interest of Jasper and Carbon Hill

residents in the operation of the Walker County

school system and do not show domination by

5a

such residents over county school board elec-

tions. Accordingly, appellants have not met

their burden of demonstrating that the Alabama

statutes and their application here are ir-

rational or wholly irrelevant to the state's

objective of electoral participation in the

selection of county school board members.

McGowan v. Maryland, 366 U.S. 420, 81 S.Ct.

L. (1961); Clark v. Town of

Greenburgh h, 436 F.2d 770 (2d Cir. TS71);

Glisson A Mayor & Councilmen of Savannah

Beach, 34 (Sth Cir. 1965); Spahos,

Vv. Mayor & Councilmen of Savannah Beach 207

F.Supp. 688 (S.D.Ga.), atta 371 U.S. 06,

83 S.Ct. 304, 9 L.Ed.2a 269 (1962) .

Moreover, appellants have failed to sus-

tain their burden of showing that their pro-

posed "fencing out" of Jasper and Carbon Hill

residents from voting in county board elections

is required by a compelling state interest.

Evans v. Cornman, 398 U.S. 410, 90 S.Ct. 1752,

970); Kramer v. Union School

District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.

1969); Little Thunder v. State of

South Dakota, 5I8 F.2d 1353 (Sth Cir. 1975).

Tf, as appellants argue, the residents of Jasper

and Carbon Hill had "no more interest in the

affairs of the ccunty school board than the

residents of the next county, " a compelling

state interest in excluding them from voting

would no doubt exist. As the Supreme Court

said in Reynolds v. Sims, 377 U.S. 533, 555,

84 S.Ct. 1367, 1378, 12 L.Ed.2d 506, 523

(1964), "the right of suffrage can be denied

by ... dilution of the weight of a citizen's

vote just as effectively as by wholly pro-

hibiting the free exercise of the franchise."

6a

However, the argument simply doesn't square

with the facts in this case.

Appellants have called our attention to

Locklear v. North Carolina State Board of

Elections, 514 F.2d 1152 (4th cir. 1975), in

which it was held that extension of the fran-

chise in county school board elections to

residents of city school districts, and the

consequent "dilution" of the vote of the non-

city residents, was "“over-inclusive" and con-

stituted denial of equal protection of the

laws. Justification for city residents' par-

ticipation in the county school board elections

was that the county board (1) administered the

transportation system for the county as a

whole, including the districts under the city

school boards; (2) operated an Educational

Resource Center for the benefit of all county

and city pupils; and (3) administered a number

of federally-funded projects. The Fourth

Circuit held that the city voters’ interest

in these functions did not amount to a com-

pelling state interest that city voters

participate in the election of certain county

school board members. It said:

We do not doubt that the fact that

the county board performs some

functions for the benefit of the

city boards gives the electorate

of the city boards an interest in

the operation of the county board,

justifying some voice and some

control in how the joint functions

are performed,

7a

However, it observed that the joint functions

performed by the county school board were by

edreenment with the city school boards and not

ecause of statutory mandate; that contractual

rights of supervision and control over the

county school board's performance under an

agreement enabled the city school boards to

participate in the centralized functions to

the extent of their interest, rendering

electoral participation in the selection of

county school board members by residents of

the city school districts unnecessary. The

court pointed out that while members of the

city school boards were elected exclusively

by the voters residing within each city board

district, seven of the eleven county school

board members were elected by voters residing

in both the city school board districts and

the county board jurisdiction. It was the

"dilution" of the county board jurisdiction

residents' voting power by residents of the

city board districts in the election of the

seven members of the county school board which

the plaintiffs had attacked.

The factual differences between this case

and Locklear are readily apparent. For ex-

ample, the substantial investment by Jasper

residents in the vocational school and in the

county board building and the fact that half

the Carbon Hill school system's pupils come

“3. The court determined that the exten-

sion of the franchise in county school board

elections to residents of city school districts

was “over-inclusive" for another reason, namely:

the county school board administered the

schools in its own jurisdiction, and there was

"no cooperative effort between the county and

city boards in this area.”

—_.

from outside Carbon Hill and pay no fee have

no parallel in Locklear. Nor in Locklear

does it appear a ere was any net outflow

of property tax funds from a city to the

county. We are persuaded that to require such

matters to be left to agreement between the

city school boards and the county school board

rather than to a rational and relevant plan

established by the Alabama legislature, parti-

cularly when there is no evidence of invidious

discrimination which might arise from domina-

tion of elections by Jasper and Carbon Hill

voters, would be to unnecessarily intrude upon

an area reserved to the singular capability and

responsibility of the legislature.

The judgment is affirmed.

9a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OFFICE OF THE CLERK

August 12, 1976

Edward W. Wadsworth, Tel. 504-589-6514

Clerk 600 Camp Street

New Orleans, La. 70130

TO ALL COUNSEL OF RECORD

No. 74-4105

Lonnie Creel, Jr., et al

v. Frank E. Freeman, et al;

Walker County Board of Education,

etc., et al

Dear Counsel:

This is to advise that an order has this

day been entered denying the petition( ) for

rehearing, and no member of the panel nor Judge

in regular active service on the Court having

requested that the Court be polled on rehearing

en banc, Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 12. The

petition( ) for rehearing en banc has also been

denied. tre)

See Rule 41, Federal Rules of Appellate

Procedure for issuance and stay of mandate.

Very truly yours,

EDWARD W. WADSWORTH, CLERK

BY: s/ Susan M. Gravois

“Deputy Clerk

10a

en RY ee 8 a

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA

JASPER DIVISION

LONNIE CREEL, et al.,

Civil Action

No. 74-G-78-J

Plaintiffs,

vs.

{[Filed: November

FRANK E. FREEMAN, et al.,) 15, 1974]

Defendants.

ORDER

This cause came on to be heard on the

motions of defendant, Walker County Board of

Education, and defendant, members of the

Board of Supervisors of Elections of Walker

County, Alabama, for summary judgment. The

court has considered these motions and is of

the opinion that they ~re due to be granted.

The court bases this determination on autho-

rity which includes the following cases:

Clark v. Town of Greenburgh, 436 F.2d 770 (2d

Cir. 1971); Glisson v. Savannah Beach, 346

F.2d 135 (5th cir. 1965). The court places

special reliance on Rutledge v. State of

Louisiana, 330 F.Supp. 336 (W.D, La. 1971).

Accordingly, it is ORDERED, ADJUDGED and

DECREED that the above motions for summary

judgment be, and the same hereby are, granted.

DONE this 15th day of November, 1974.

J. FOY GUIN, JR.

lla

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA

JASPER DIVISION

[Filed: November

LONNIE CREEL ET AL., ) 26, 1974]

)

PLAINTIFFS )

) CIVIL ACTION NO,

vs. ) 74-G-78-J

)

FRANK E. FREEMAN ET AL.,)

)

DEFENDANTS )

ORDER

This cause came on to be heard on the

motions of Defendant, Robert E. Cunningham,

who was sued in said cause as a representa-

tive of the residents of those cities having

an independent school board, for Summary Judg-

ment. The Court has considered this Motion

and is of the opinion that it is due to be

granted. The Court bases this determination

on authority which includes the following

cases: Clark v. Town of Greenburgh, 436 F.2d

770 (2nd Cir. IS7I); Glisson v. Savannah Beach,

346 F.2@ 135 (5th Ciry 1965). The Court places

special reliance ca Rutledge vs. State of

Louisiana, 330 F. Supp. 338 (W.D. La. I971).

Accordingly, it is ORDERED, ADJUDGED AND

DECREED that the above Motion for Summary Judg-

ment, be, and the same is hereby granted.

DONE this 26th day of November, 1974.

s/ J. Foy Guin, Jr.

s cS D

J. FOY GUIN, JR.

12a

United States Constitution, Amendment I

Congress shall make no law***abriding

the freedom of speech***; or the right

of the people peaceably to assemble,

and to petition the government for a

redress of grievances.

United States Constitution, Amendment XIV,

§l

***No state shall make or enforce any

law which shall abridge the privileges

or immunities of citizens of the

United States; ***nor deny to any per-

son within its jurisdiction the equal

protection of the laws.

United States Code, Title 42, §1983

Every person who, under color or any

statute, ordinance, regulation, custom,

or usage, of any State or Territory,

subjects, or causes to be subjected,,

any citizen of the United States or

other person within the jurisdiction

thereof to the deprivation of any

rights, privileges or immunities

secured hy the Constitution and laws,

shall be liable to the party injured

in an action at law, suit in equity,

or other proper proceeding for redress.

l3a

Code of Alabama (Recomp. 1958), Title 52,

§ 63. Members. -- The county board of educa-

tion shall be composed of five members, who

shall be elected by the qualified electors of

the county. They shall be persons of good

moral character, with at least a fair elemen-

tary education, of good standing in their

respective communities, and known for their

honesty, business ability, public spirit and

interest in the good of public education. No

member of the county board of education shall

be an employee of said board. (1927 School

Code, § 87,)

l4a

Ee me ae

Act No. 138 of the Special Session of the

Alabama Legislature of 1965 (Acts of Ala., Vol.I)

AN ACT

To provide further for the control, super-

vision and administration of public schools in

Walker County; to fix the qualifications and

to provide for the election of a chairman and

associate members of the county board of educa-

tion; to fix their terms of office; to provide

for their compensation, and the manner of

filling vacancies in office.

Be It Enacted by the Legislature of Alabama:

Section 1. The general supervision and

control of the public schools of Walker County

shall be vested in a county board of education,

which shall consist of a chairman and four

associate members.

Section 2. The chairman of the board

shall be a resident and qualified voter of

any district or beat in the county, a person

of good moral character, of good standing in

his community, known for his honesty, business

ability, public spirit and interest in the good

of public education. He shall be nominated and

elected by the qualified voters of the entire

county; he shall take office on the day following

his election and qualification and shall serve

for a term of six years and until his successor

is elected and qualified.

Section 3. One member of the board shall

be a resident and qualified elector of each of

the four districts from which members of the

15a

county governing body are elected. Each shall

be a person of good moral character, of good

standing in his community, known for his

honesty, business ability, public spirit and

interest in the good of public education. One

member of the board shall be nominated and

elected by qualified electors of district one;

one member shall be nominated and elected by

the qualified electors of district two; one

member shall be nominated and elected by the

qualified electors of district three; and one

member shall be nominated and elected by the

qualified electors of district four.

zx et

Section 6. All laws or parts of laws

which conflict with this Act are repealed.

Section 7. The provisions of this Act

are severable. If any part of the Act is de-

clared invalid or unconstitutional, such

declaration shall not affect the part which

remains.

l6a