# Petition — Creel v. Freeman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 429 U.S. 1066

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0864%3A1. Public record. Not legal advice.