Opposition — Creel v. Freeman

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. 76-655

LONNIE CREEL, JR., et als., etc.,

Petitioners,

vs.

FRANK E. FREEMAN, et als., etc.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION ON BEHALF OF

RESPONDENTS

Puiturp A. Lamp

Exuiotr & LAIRD

211-216 Blanton Building

P.O. Box 830

Jasper, Alabama 35501

Attorney for Respondents

See signature page for attorneys

and firms Of Counsel

TABLE OF CONTENTS

TABLE OF AUTHORITIES —.

STATEMENT OF THE CASE -

SUMMARY OF ARGUMENT I —

ARGU MENT

I. THE DECISION OF THE LOWER

COURT IS CLEARLY CORRECT

SUMMARY OF ARGUMENT II

ARGU MENT

Il. TTHERE IS NO CONFLICT IN

THIS DECISION AND NO

QUESTION OF IMPORTANCE

i ATER a

ite cicictitniciinestsictinmantintinnaioniio:

PROOF OF SERVICE

ee sonptisiatieacbinaahiiainiit

ii

TABLE OF AUTHORITIES

CASES: Page

Amos v. Hadnot, 405 U.S. 1035, ‘31 L. Ed. 2d. 576,

aff’ing 320 F. Supp. 107 (M.D. Ala. 1970) 000.1

Baker v. Carr, 369 U.S. 186 i —

Carrington v. Rash, 380 U.S. 89, 13 L.Ed. ‘2d. (1965) 1]

Cipriano v. City of Houma, 395 U.S. 701 — 38, 11

City of Phoenix, Arizona v. Kolodztejski, $99 U:S. 204

(1970) saveknnichathimscinsticnio’ 1]

Clark v. Town of sitesi 436 F. 2d. 770 (2nd

— sdsteslanpiconlitiiianiaiiidtinissidaition 12, 15, 21, 22

Dunn v. Blumstein, 405 U.S. 343 (1972) 78

Evans v. Cornman,.398 U.S. 419, 26 L. Ed..2d. 370

TED. seccsenniciienacinnniviiinincintinhdelimadiimidaitaabiilomasaamiitiiats 7, 11

‘Glisson v. Mayor and Councilmen of the Town of

Savannah Beach, 346 F. 2d. 135 (5th Cir. 1965) 12, 16, 21

Gray v. Sanders, 372 U.S. 368, 9 L. Ed. 2d. 821 (1963) 7

Hadley v. Junior College District of ‘Metropohtan

Kansas City, Mo., 397 U.S. 50 (1970) rm S

Hill v. Stone, 421 U.S. 389 (1975) FER ATP ae 21

Kramer v. Union Free School District No. 15, 395 U.S.

SINT | eretteeeeceiceisesiiteiesticniiisieicidielaniinlapllinaaiinintnin 7,8, 11

Lassiter v. North Hampton County Board of Elections,

860 U.S. 45, 3 L. Ed. 2d. 1072 (1959) _.... 13

Little Thunder v. State of South Dakota, 518 F. 2d.

Be Ce Ge FG vctennenccntiniiiecnonndibetilnninintianiaians 19

Locklear v. North Carolina State Board of Elections,

514 F. 2d. 1152 (4th Cir, 1975) 16, 17, 18, 19, 20

McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 293

TIED | <scseninintinnenlirinceansidiglnnieitedieatiiniamaddaiialitnnin 9, 10, 20

lil

Page

Oregon v. Mitchell, 400 U.S. 112, 217, 27 L. Ed. 2d.

272 (1970) 9,11

Reynolds v. Sims, 377 U.S. 533 (1963) 7

Rutledge v. Louisiana, 330 F. Supp. 336 (W.D. La.

1971) 12, 21

Spahous v. Mayor and Councilmen of the Town of

Savannah Beach, 207 F. Supp. 688 (S.D. Ga.

SD eccscennossecse <ittiinclnennincneisesniincandaiinncnsiniontnichanttiiniiin 9, 12, 21

hates v. Sanders, 376 U.S. 1, 11 L. Ed. 2d. 481

RENEE sincininnciensnnneentipen-sentintepeeissiocinaiaapatiak 7

STATUTES:

Alabama Constitution Art V., 138 -.....Appendix — A3

and A4

Alabama Constitution Amendment 35 Appendix — A4

Code of Alabama, 1940, Title 52,

IED cnentevisircincerstiiststainneniiivinieansiarieaniasienstinnh 6,9, 11, 14

Appendix — Al

LOCAL ACTS:

Acts of Alabama, Vol. No. 1, Act No. 138, Special

ERE aes oe AS ARNT 6, 9, 11, 14

Appendix — Al,

A2 and A$

ll

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. 76-655

LONNIE CREEL, JR., JACK SULLIVAN, CLINT

FOREMAN, TOM W. GAINES, DAN WHITAKER,

AND JAMES M. ELLISON, individually and for all others

similarly situated,

Petitioners,

vs

FRANK E. FREEMAN, E. K. BARNES, CLARENCE

HENDRIX, EUGENE McDANIEL and DORIS

ROBERTS, individually, as members of the Walker Coun-

ty Board of Education, and on behalf of all other school

boards and school board members similarly situated;

ROBERT E. CUNNINGHAM, individually and as Su-

perintendent of Education of Walker County, and on be-

half of all other Superintendents similarly situated; PRO-

BATE JUDGE FLORA L. STEWART, SHERIFF

HOWARD TURNER, and CIRCUIT CLERK SYLVES-

TER ANTON in their official capacities as members of

the board of supervisors of elections and on behalf of all

other boards of supervisors similiarly situated,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION ON BEHALF OF

RESPONDENTS

2

STATEMENT OF THE CASE

This action began with a Complaint of Plaintiffs: bemg

filed on January 28, 1974, with present Petitioners seeking

to represent the class of Plaintiffs which resided outside

the corporate limits of any town having an independent

school board.

The Petitioners reside outside the corporate limits of

any city or town having an independent school board and

the Respondents in said suit are the superintendent of edu-

cation ar? members of the board of education and mem-

bers of the board of election supervisors of Walker County.

Each Respondent was originally sued as a representative of

the class of officials of 36 other counties.

The District Court made an initial determination in

favor of a class action status but after extensive discovery,

the District Court ruled that the class action could not be

maintained as to the Respondents.

Neither the class action question nor the three-judge

Court question is subject to the Court's review in connec-

tion with this appeal.

Petitioners appealed the action of the lower Court and

the Fifth Circuit Court of Appeals affirmed the ruling of

the District Court.

The Petitioners contend that by allowing city residents

of Jasper, Alabama and Carbon Hill, Alabama, both: hav-

ing inaependent school systems, both located in’ Walker

County, Alabama, to vote for the members and for the

chairman of the Walker-County Board of Education, such

dilutes the votes of proper non-city electors and denies’

them equal protection of the law in violation of the Four-

teenth Amendment. The Petitioners specifically challenge

the constitutionality of Title 52, §63, of The Alabama

Code, 1940, as Recompiled in 1958.

8

Title 52, §63, of The Code of Alabama, 1940 as Recom-

piled in 1958, provides in part the following:

“The County Board of Education shall be composed

of 5 members, who shall be elected by the qualified

electors of the county. . .” (Appendix Page Al).

A local act applying to Walker County fixes the qualifi-

cations of and provides for the election of a chairman and

associate members of the County Board of Education. In

Act No. 138 of the Special Session of the Alabama Legis-

lature of 1965, in Acts of Alabama, Volume No. 1, at

Page 188, we find in part the following:

Section I provides for the general supervision and

control of the public schools of Walker County being

vested in the County Board of Education consisting

of a chairman and 4 associate members. . .

Section 2 provides that the Chairman of the Board

shall be a resident and qualified voter of any district

or beat in the county and that he shall be nominated

and elected by the qualified voters of the entire coun-

ty... :

Section 3 provides that one member of the Board

shall be a resident and qualified elector of each of the

four districts from which members of County govern-

ing body are elected and that each district shall elect

a member of the board of education. . . (Appendix

Pages Al, A2, & A3).

Walker County surrounds the cities of Jasper and Car-

bon Hill on all four sides and no qualified voter in Walker

County, including residents of Carbon Hill and Jasper,

Alabama, are excluded from voting in the Walker County

Board of Educativn election. The electors all vote for the

Chairman and all vote for the Board member of their re-

spective district.

4

Robert E. Cunningham, Superintendent of the Walker

County Board of Education, resides within the City limits

of Jasper, Alabama.

Location of Educational Facilities:

The Office of the Walker County Board of Education,

which also houses the workshop and textbook center is lo-

cated within the City limits of the City of Jasper, Alabama.

The building is owned by the Jasper City Board of Edu-

cation and is rented to the County Board for $1.00 per year.

The Walker Area Vocational School, under the super-

vision of the Walker County Board of Education, is also

located within the City limits of Jasper, Alabama.

Joint Educational Activities:

The Walker County Board of Education and the Jasper

City Board of Education have a “joint venture’ known as

the Walker Area Vocational School, which is located inside

the City limits of Jasper, Alabama, and it is under the ex-

clusive control of the Walker County Board of Education,

who pays all operating costs. In 1974, 691 students attended

the Walker Area Vocational School, 114 of which lived >

within the City limits of Jasper, Alabama. The Jasper

City Board of Education contributed $212,500.00 toward

its construction and pays $50.00 for each student residing

within the City of Jasper who attends.

In 1974, the Jasper City Board of Education had an en-

rollment of 2,810 students. —The Walker High School, lo-

cated in the City limits of Jasper, Alabama, had an enroll-

ment of 950, of which 488 students live outside the city

limits. There are no limits on outside students attending

the City schools.

Also, in 1974, the Carbon Hill School System had an en-

rollment of 965, of which 482 students live outside the

5

City limits. No fees were charged in connection with the

out-of-city students.

The number of city students attending other county

schools is unknown.

Finances

Revenues are obtained from various sources and one of

such sources is a 4 mill tax assessed and collected county-

wide including on the residents of Jasper and Carbon Hill,

Alabama, and the amount of tax collected on lands within

the City of Jasper, Alabama was $35,501.80 in 1974, of the

total of $394,524.28, which was the total of the 4 mill tax

collected county-wide and paid over to the Walker County

Board of Education. The $35,501.80 amounts to 8.99% of

the total amount paid over to the Walker County Board

of Education by virtue of the 4 mill tax.

SUMMARY OF ARGUMENT I

The issue in the present case is uniquely narrow, and

no amount of strained semantics can convert it into one

warranting review by certiorari.

It is apparent that the allowing of the residents of the

Cities of Jasper and Carbon Hill, both having indepen-

dent school boards, to vote for the chairman and mem-

bers of the Walker County Board of Education neither

“dilutes” or “debases” the votes of the non city resi-

dents, nor denies the non-city residents the equal pro-

tection of the law since the residents of the cities have a

legitimate interest in voting insuch elections.

The legitimate interest of the cities is evidenced by

the taxes that are paid which make up a portion of the

budget of the Walker County Board of Education; the

investment of moneys made by the Jasper City Board of

6

Education into the Vocational School, which is a “joint

venture” with the Walker County Board of Education,

and which facility is located within the corporate limits

of the City of Jasper, Alabama and which is operated

under the exclusive control of the Walker County Board

of Education, with city students attending from Jasper.

Further, county students comprise one half of the stu-

dent body of the Walker High School and Carbon Hill

High School, both city schools, and the students attend

without the payment of fees.

It is also evident that Petitioners cannot demonstrate

that Title 52 of Code of Alabama, (Appendix Page Al)

or Act No. 138, Acts of Alabama, (Appendix Pages Al,

A2, & A3), create an arbitrary classification, show dis-

crimination, or that each or either is based on irrational

objectives or that the objectives are wholly irrelevant

means of achieving the States’ objectives.

I. THE DECISION OF THE LOWER COURT IS

CLEARLY CORRECT.

ARGUMENT

Petitioners predicate their attack on Title 52, §63, of

The Code of Alabama, 1940, as Recompiled 1958 (Appen-

dix Page Al), and on Act No. 138, Special Session of The

Alabama Legislature, 1965, Acts of Alabama, Vol. 1 (Ap-

pendix Pages Al, A2 & A3) on the conception that city

residents cannot vote in county elections without “‘dilut-

ing’’ the vote of those residents of rural areas outside the

cities of Jasper and Carbon Hill, Alabama. “Dilution” as

used by the Petitioners, is a clever disguise under which

Petitioners are trying to get this Court to do what the Su-

preme Court has said the Equal Protection Clause will not

permit: the “fencing out” from county elections of a sub-

stantial part of counties’ residents solely because they re-

7

side in an additional jurisdiction, i.e., a town. Evans v.

Cornman, 398 U.S. 419, 423, (1940). This case does not

involve “dilution” as that term has been interpreted by the

Courts. Each person who votes in these elections has his

vote counted as ‘‘one’’. No voter’s ballot is weighed more

heavily than that of “others”. Wesberry v. Sanders, 376

U.S. 1, (1964); Reynolds v. Sims, 377 U.S. 533, (1964) ;

Gray v. Sanders, 372 U.S. (1963); and Hadley v. Junior

College District, 397 U.S. 50 (1970) .

This action is unusual in that Petitioners do not seek to

guarantee the right to vote to a previously disenfranchised

class, but instead, seek to take away the right to vote from

persons presently enjoying that right. Petitioners allege a

dilution of their vote, not through a system of improperly

apportioned districts, but through a process of permitting

persons to vote who allegedly have no interest in the elec-

tion, and therefore, no right to participate therein.

In Reynolds v. Sims, 377 U.S. 533, 562 (1964), the

Court said:

“Since the right to exercise the franchise in a free and

unimpaired manner is preservative of other basic civil

and political rights, any alleged infringement of the

right of citizens to vote must be carefully and meticu-

lously scrutinized.”

In Kramer v. Union Free School District, 395 U.S. 631,

626, 627 (1969) , the Court said:

“Any unjustified discrimination in determining who

may participate in political affairs or in the selection

of public officials undermines the legitimacy of rep-

resentative government.

Thus, State apportionment statutes, which may dilute

the effectiveness of some citizens’ vote, receive close

scrutiny from the Court, no less rigid an examination

is applicable to statutes denying the franchise to citi-

8

zens who are otherwise qualified by residence and

age. States granting the franchise on a selective basis

always pose the danger of denying some citizen any

effective voice in the governmental affairs which sub-

stantially affect their lives. Therefore, if a challenged

State statute grants the right to vote to some bona fide

residents of requisite age and citizenship and denies

the franchise to others, the Court must determine

whether the exclusions are necessary to promote a

compelling State interest.”

There is no Constitutional requirement that all voters

participating in an election must be similarly affected by

the outcome of the election, nor is there a Constitutional

requirement that the interest of all voters must be identical.

In Kramer, supra, at 395 U.S. 632, the Court said:

“Whether classifications allegedly limiting the fran-

chise to those resident citizens ‘primarily interested’

deny those excluded equal protection of the laws de-

pends, inter alia, on whether all those excluded are in

fact substantially less interested or affected than those

the statute includes. In other words, the classifications

must be tailored so that the exclusion of appellant and

members of his class is necessary to achieve the arti-

culated state goal.”

In Cipriano v. City of Houma, 286 F. Supp. 823 (1968) ,

we find the following:

“The Equal Protection Clause does not command

state legislatures to make their laws conform to hy-

draulic principles by seeking the common—and lowest

level. Equal Protection does not require identity of

treatment. It only requires that classification rest on

real and not feigned differences, that the distinctions

have some relevance to the purpose for which the

classification is made, and that the different treatments

be not so disparate, relative to the difference in classi-

fication, as to be wholly arbitrary.”

9

Section 63 of The Code of Alabama, 1940, as Recom-

piled 1958, (Appendix Page Al) , as well as Act 138 of the

1965 Session of The Alabama Legislature, The Acts of Ala-

bama, Volume I, (Appendix Pages Al, A2 & A3), do not

create an arbitrary classification, and the Petitioners can-

not discharge their heavy burden by demonstrating that

either Section 63 or Act Number 138, create such an arbi-

trary classification. McGowan v. Maryland, 366 U.S. 420

(1961). Proof that §63 or Act 138 “affects some groups of

citizens differently than others’ (McGowan v. Maryland,

366 U.S. at 425, or that “in practice [it] results in some

inequality” (Spahous v. Savannah Beach, 207 F. Supp. 688

(S.D. Ga. 1962) aff'd per curiam, 371 U.S. 206 (1962) ), is

not sufficient, because “every discrimination between

groups of peopie” does not rise to the dimensions of “a

Constitutional denial of equal protection’, Oregon uv.

Mitchell, 400 U.S. 112 (1970). In addition to proving the

discrimination, the Petitioners must demonstrate that §63,

Title 52, The Code of Alabama, 1940, as Recompiled 1958

(Appendix Page Al), or that Act 138 of The Acts of Ala-

bama, 1965, Volume 1 (Appendix Pages Al, A2 & A3),

are not based upon rational objectives (Spahous v. Savan-

nah Beach, supra at 692) or that they are ‘‘wholly irrele-

vant’” means to achievement of the States’ objective. Mc-

Gowan v. Maryland, 366 U.S. at 425. This places an im-

possible burden on Petitioners, because §63, and Act 138

are clearly rational means to a rational end: to secure the

vote in school board elections for all residents of Walker

County. All the voters vote for the position of Chairman

of the Board of Education and all vote for the school board

member of their district.

The Petitioners in this cause cannot demonstrate that

§63 or that Act 138 create an arbitrary classification.

Neither §63 nor Act 138 discriminate against anyone be-

10

cause it simply gives the right to vote to all qualified elec-

tors in Walker County, Alabama.

The classification must have some reasonable basis and

does not fail because it in practice results in some inequal-

ity. If any state of facts reasonably can be conceived that

will sustain it, the existence of that state of facts must be

assumed. And those who assail the classification must

carry the burden that it does not rest upon any reasonable

basis, but it is essentially arbitrary. In McGowan v. State

of Maryland, 366 U.S. 420, the Supreme Court stated the

rule as follows:

“Although no precise formula has been developed,

the Court has held that the 14th Amendment permits

the state a wide scope of discretion in enacting laws

which affect some groups of citizens differently than

others. The Constitutional safeguard is offended only

if the classification rests on grounds wholly irrelevant

to the achievement of the states’ objectives. State leg-

islatures are presumed to have acted within their Con-

stitutional power despite the fact that, in practice,

their laws result in some inequality. A statutory dis-

crimination will not be set aside if any state of facts

can reasonably be conceived to justify it.”

(I) Recent Supreme Court Decisions Affecting Peti-

tioners’ Position:

Petitioners, in the instant case, asked for judicial relief,

circumscribing the residence requirement for county vot-

ing to achieve the exclusion of town residents, so that a sub-

stantial segment of the population will be “fenced out” in

school affairs in the county. In several recent cases, the

Supreme Court has refused to let State officials do what the

Petitioners are asking this Court to do in the instant case.

There are three lines of authority in recent decisions of the

Supreme Court which militate against the Petitioners’ posi-

tion. The Petitioners can prevail in this case only if the

11

Court ignores all three lines of authority. First, the Equal

Protection Clause looks with disfavor on efforts to “fence

out” voters from participating in elections in which they

have some interest. Evans v. Cornman, 398 U.S. 419

(1970) ; Carrington v. Rash, 380 U.S. 89 (1965) ; Kramer

v. Union Free School District, 395 U.S. 621 (1969); and

Phoenix v. Kolodziejski, 399 U.S. 204 (1970) . Second, the

Equal Protection Clause does not permit the disenfranchise-

ment of otherwise qualified voters on the grounds that they

are ‘‘less interested” than others in the outcome of an elec-

tion. Kramer v. Union Free School District, 395 U.S. 621,

(1969) ; Cipriano v. Houma, 395 U.S. 701 (1969) ; Evans

v. Cornman, 398 U.S. 419 (1970); and Phoenix v. Kolod-

ziejski, 399 U.S. 204 (1970). Third, the Equal Protection

Clause looks with suspicion on unreasonably restrictive

residence requirements. Dunn v. Blumstein, 405 U.S. 330

(1972) ; Evans v. Cornman, 398 U.S. 419 (1970) ; Carring-

ton v. Rash, 380 U.S. 89 (1965); Oregon v. Mitchell, 400

U.S. 112 (1970); and Amos v. Hadnot, 405 U.S. 1035,

aff ing 320 F. Supp. 107 (M.D. Ala. 1970) .

(Il) Cases of Major Importance Supporting Respond-

ents’ Positions:

Five “Equal Protection” Cases should be considered in

connection with the case at hand. All five cases join to

place an insurmountable burden on the Petitioners and

they compel the conclusion that this Court must sustain

the validity of §63, and Act No. 138. In Evans v. Cornman,

398 U.S. 419, (1970), the United States Court condemned

the Maryland Registration Boards’ effort to exclude from

participation in the State elections, those people who lived

on a federal enclave. The Court reasoned that the Federal

employees in question had an obvious interest in the af-

fairs of the state jurisdiction which surrounded them (em-

phasis added) .

12

The United States Court of Appeals for the Fifth Cir-

cuit in Glisson v. Savannah Beach, 346 F. 2d 135 (5th Cir.

1965) sustained the Constitutionality of a statute which

permitted voting in the municipal elections of Savannah

Beach by persons owning property in the town, who re-

sided outside the City limits in outlying Chattam County.

In a rationale equally applicable to the case at bar, that

Court explained as follows, 346 F. 2d at 137:

‘It is apparent from the fact of the legislation that there

could be a logical and sensible reason for permitting

non-residents Owning property in municipality to vote

on an equal basis with the resident persons . . . The

nexus between the two is that each of them obviously

has an interest in the operation of the city govern-

ment.” 4

In a companion case, the United States Supreme Court

affirmed the same decision reached by a “‘three-judge’’ dis-

trict court. Spahous v. Savannah Beach, 207 F. Supp. 688

(S.D. Ga. 1962) aff'd per curiam, 371 U.S. 206 (1962).

In the case of Clark v. Greenburgh, 436 F. 2d 770 (2nd

Cir. 1971) , the United States Court of Appeals for the sec-

ond Circuit sustained a statute permitting city residents

to vote in county elections. The Court rejected a “dilu-

tion” argument like the one made in this case, and reasoned

that a county residents’ vote is not “diluted” simply be-

cause he might have a greater interest in the outcome of a

county election than other voters who live in the city. Not-

ing that the city residents did have an interest, however

small, in the outcome of county elections, the Court pointed

out that city residents paid about 5% of the taxes levied by

the county and that they had access to the county's recrea-

tional facilities.

Finally, in Rutledge v. Louisiana, 330 F. Supp. 336,

(W.D. La. 1971), a case on “all-fours” with the instant

~~ i. Sar

1$

case, a United States District Court sustained a statute

permitting residents of a city with a separate school system

to vote in board «f education elections in the surrounding

parish. The Court refused to ‘fence out’’ city residents

who had at least some interest in the county election, the

Court based its interest on three facts, all of which are pre-

sent in the case, viz: (1) some city residents attended parish

schools; (2) city residents paid part of the taxes used to

run the parish schools; and (3) part of the parish school

system's facilities were located in the city. This is exactly

the situation in Walker County, in that some residents

attend county schools; city residents pay part of the taxes

used to run the county schools; and part of the county

school system’s physical facilities are located within the

city. It appears that a common thread is contained in the

case of Glisson, Spahous, Clark and Rutledge, in that they

all contain a judicial reluctance to interfere with State leg-

islative enactments extending the right to vote to a class of

voters, so long as the class has some tangible interest, irre-.

spective of the degree, in the outcome of the election in

which they are permitted to participate. This judicial

reluctance logically follows the principle that, since State

legislatures have the primary responsibility for fixing voter

qualifications for local elections, the Equal Protection

Clause permits them a “broad discretion.’ Lassiter v.

North Hampton County Board of Elections, 360 U.S. 45

(1959). Clearly, this ‘broad discretion” must extend to

permitting the Alabama Legislature to conclude that the

citizens of Carbon Hill and Jasper, Alabama, have suffi-

cient interest to participate in the affairs of the county

which surrounds them, since it appears that the voters re-

siding in the city are substantially affected by the decisions

of the county board and that they have a substantial inter-

est in the election of the county board, since the county

14

maintains, operates and supervises the Walker Area Voca-

tional School, which includes those students residing with

the city, Walker County Board of Education Office, text-

book center, and garage, is located within the City limits

of Jasper, Alabama, and the residents of the City of Jasper

and the City of Carbon Hill, Alabama, assist in paying a

portion of the taxes with which the Walker County Board

of Education operate. These functions of the county boards

directly and substantiably affect residents of these cities.

Hadley v. Junior College District of Metropolitan Kansas

City, 397 U.S. 50, 54 (1970).

Because of the above reasons and because the same con-

siderations prevailed in Glisson, Spahous, Clark and Rut-

ledge, we feel that the same considerations command a

course of judicial restraint in the case at bar.

The Petitioners also allege that Title 52 of §63, The

Code of Alabama, 1940, as Recompiled 1958, creates a

“dual voting” situation but this is incorrect in the true

consideration of the same. The point that Petitioners are

making is that because of the provision of §63, and Act

No. 138, the city residents of Jasper and Carbon Hill en-

joy the additional right of voting for county school board

members.

There seems to be no problem with allowing city resi-

dents the ‘‘vote’’ since they are also county residents and

since they are likewise allowed to vote for County Sheriff

and County Commissioners (Ala. Constitution, Act V, 138,

and Amendment 35) (Appendix Page A3), even though

the cities have their own police forces and even though the

residents look to the local city or town officials for the pav-

ing of streets and such other benefits.

Instead of being classed as a “dual voting’ situation, it

would appear more correctly classed as an “additional vot-

ing” privilege because such city residents pay taxes, have

15

requisite interest in the County Board of Education activ-

ities and because of joint activities between City Boards

and the County Board of Education.

Finally, the Court's attention is directed to three addi-

tional considerations, not averred to above, which com-

mand a course of judicial caution.

First, as the Second Court of Appeals pointed out in

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

1971), it might well violate the Equal Protection Clause

to exclude bona fide county residents from participating

in county affairs solely because they happen to be inhabit-

ants of a town.

Second, based on the undisputed facts contained above,

Carbon Hill and Jasper residents have some interest, how-

ever remote, in the school affairs of Walker County. Hence,

they can be excluded from participating in those affairs

only if this Court utilizes a “calculus of interest’’ test which

compels the disenfranchisement of a class of voters who

ostensibly have less interest than other voters in the out-

come of an election. Two reasons are evident why such a

test should not be given this Court’s sanction. For one, it

would dignify speculation as to an extent that the law can-

not countenant. The physical location of one’s home does

not necessarily dictate the degree of his interest in educa-

tion. Neither does it fall that one who is interested in edu-

cation in Carbon Hill or Jasper, Alabama, is Jess interested

in Walker County. To the contrary, many of the strongest

supporters of quality education in Carbon Hill and Jasper,

Alabama, are the strongest supporters of quality education

in Walker County. For the second reason, judicial economy

calls for the rejection of such a test because it would in-

evitably generate many new controversies and many new

spin off cases.

16

Third, if the Petitioners prevail, then this precedent will

lead to new cases challenging the rights of city inhabitants

to vote in elections for Probate Judge, County Commis-

sioners, and Sheriff. This case, if the Petitioners succeed,

will signify the beginning of a campaign in the courts to

effectuate fundamental changes in the relationship between

city and county government in Alabama. Any spirit of

cooperation presently existing between state, county and

local government would be hampered and education would

reap the fruits of such action.

If cities and counties are to be made mutually exclusive

jurisdictions in Alabama, the demand for this fundamental

change should be addressed, initially to the State Legisla-

ture. As noted in Glisson v. Savannah Beach, 346 F. 2d 135

(5th Cir. 1965), there has been no allegation or evidence

shown on behalf of Petitioners that they are foreclosed

from obtaining the relief that they may be seeking from

the Legislature of the State of Alabama, and Petitioners in

this case are not foreclosed from obtaining relief from the

legislature as were the Petitioners in Baker v. Carr, 269

U.S. 186.

SUMMARY OF ARGUMENT II

Petitioners have labored in their attempts to convince

the Court that this case is in conflict with the case of

Locklear v. North Carolina State Board of Elections, 514

F, 2d. 1152 (4th Cir. 1975), wherein the Court held

that the interest of the city voters in functions performed

by the county boards, which were namely: student trans-

portation, the educational resource center and the pro-

jects for special students, individually and collectively,

did not amount to a compelling state interest and that

city voters could not participate in the election of Coun-

ty School Board members.

17

The Locklear case differs from the case at hand in the

areas of taxes being paid by the cities of Jasper and Car-

bon Hill which are used to make up a portion of the

budget of the Walker County Board of Education; op-

eration of a “joint venture” vocational school which is

located within the corporate limits of the Jasper City

Board of Education and which is operated exclusively

by the County Board of Education, but which was con-

structed in part by substantial moneys from the City of

Jasper to which facility city students from the City

of Jasper attend and further that county students com-

prise about one half of the student body for the largest

high school located in the City of Jasper and Carbon

Hill. The present case also differs from Locklear in the

manner of voting for board members in that Locklear,

11 county board members were elected, 7 of which were

elected by all voters residing in 6 jurisdictions, both

county and five cities, and four were elected exclusively

by the voters of the county jurisdiction, excluding resi-

dents of the cities. In the case before the Court, the

Chairman is elected at large and one member is elected

solely by the votes of each of 4 individual districts, giv-

ing the residents of said districts all a vote for the Chair-

man and one vote for the respective member for his

district.

Il. THERE IS NO CONFLICT IN THIS DECISION

AND NO QUESTION OF IMPORTANCE IS

PRESENTED.

ARGUMENT

Petitioners contend that the decision below is in con-

flict with the decision of the Fourth Circuit in Locklear v.

North Carolina State Board of Elections, 514 F. 2d 1152

(4th Cir. 1975). Locklear can be distinguished in several

18

ways from the case at hand. In Locklear, there were six

Boards of Education, five of which were city Boards of Edu-

cation, and one of which was a County Board of Education.

The County Board of Education had eleven members of

which seven were elected by the vote of the City units and

the County residents (emphasis added) and four persons

were elected exclusively by the County electorate. Also, in

Locklear, the facts showed that each Board of Education

had exclusive geographical jurisdiction (emphasis added)

within the area that it operated and there was no showing

that there was any tax collected in the City administrative

units which went to make up the revenue of the County

School Board. Also, in Locklear, the Court found that the

only connection between the County and City Boards was

the following: (a) The County Board of Education pro-

vided all of the transportation for all school boards in the

County, (b) The County and City Boards had a joint func-

tion, being an Educational Resource Center, which was

used by all of the Boards, (c) The County Board of Edu-

cation administered certain Federal projects and (d) The

County Board of Education had the right to annex certain

property to the City which had formerly not been City

property with the consent of City residents and through

approval of certain other persons and agencies. ‘The Court,

in Locklear, felt that there was no compelling state interest

to allow the City residents to vote in that particular case

and made an observation that there was nothing to show

that the agreements made between the City and County

Boards were not subject to being changed.

The case at hand is distinguished from Locklear in that

taxes flow from the Cities of Carbon Hill and Jasper to

the Walker County Board of Education, which forms a

part of the county school board budget. Also, the Walker

County Board of Education exclusively owns and operates

19

the Walker Area Vocational School within the geographi-

cal jurisdiction of the Jasper City Board of Education and

that this was not subject to being changed since the Walker

County Board of Education owns and exclusively controls

the same. Differences are also evident in the manner in

which the School Board members were elected. In the fact

that the Board of Education members of the City of Jasper

and Carbon Hill are appointed and not elected as they were

in Locklear. ‘The argument made in Locklear that the joint

agreements were subject to being changed, is substantially

affected by the case of Little Thunder v. State of South

Dakota, 518 F. 2d 1253, in which the Court refused to con-

sider the argument of the Stace that the unorganized coun-

ties might choose to form an organized county, but the

Court said the issue at stake was whether the residents of

the unorganized counties “presently” (emphasis added)

have a voice in their government.

In Little Thunder v. State of South Dakota, 518 F. 2d

1253, the Plaintiffs who were residents of unorganized

counties, brought an action contending that state law pre-

venting them from voting for County government officials

was in derrogation of their rights to equal protection of

the law. The State of South Dakota is divided into 67

county units, which are further divided into organized and

unorganized counties. A statutory method was enacted of

organizing a county government through petitions and re-

ferrendum and at the present time, the only unorganized

counties are those in which the Plaintiffs reside. The or-

ganized counties have a full compliment of elected county

officials whose task is to administer the affairs of local gov-

ernment. The residents of the unorganized counties were

not permitted to vote for the county officers in the or-

ganized counties. The State also argued that the unor-

ganized counties could organize and divest the organized

20

county government of power and that this contingency

justifies restriction of the franchise. The Eighth Circuit

Court of Appeals held that the District Court had applied

the wrong legal standard in assessing the Constitutionality

of the State’s action, and that there existed under the record

no compelling state interest justifying the denial of Plain-

tiffs’ right to vote for their governing officials. ‘The Court

was concerned with the question of whether the residents

of the unorganized counties “presently” have a voice in

their local government.

Petitioners apparently were concerned about the com-

ment by The Court of Appeals that there is no domination

shown by the residents of the City of Jasper and Carbon

Hill over the County School Board elections.

Such domination existed in Locklear v. North Carolina

State Board of Elections, (swpra) since there were eleven

members of the county board of education of which seven

were elected by the vote of the city units and the county

residents elected only four members through its exclusive

vote. This was obviously unfair, but such does not appear

in the case at bar, and with all of the apparent differences,

Locklear simply cannot be considered controlling authority

in view of the facts of the present case since Petitioner can-

not support any argument that Locklear is substantially

undistinguishable from the case at hand.

Petitioners also question whether they should have the

burden of proving a compelling state interest in excluding

persons from voting.

It is apparent from McGowan v. State of Maryland, 366

U.S. 420, that those who assail the classification must carry

the burden that it does not rest on any reasonable basis, but

that it is essentially arbitrary. Not only have the Petitionus

failed in carrying out this burden, they have failed in their

21

inability to show that Act 138, Acts of Alabama (Appendix

Pages Al, A2, & A3) is arbitrary, McGowan v. State of

Maryland, supra, or that discrimination is shown or that

they are based on irrational objectives, Spahous v. Savannah

Beach, 207 supra, 688 (1962), or that they are wholly ir-

relevant means to achieve State objectives, McGowan v.

State of Maryland, 366 U.S. 420.

Petitioners observe that the Supreme Court has repeated-

ly held that in elections of general interest, restrictions of

the franchise other than residence, age and citizenship must

promote a compelling state interest in order to survive

constitutional attack. Respondents agree that such is a

fair statement of the law as shown in Hill v. Stone, 421 U.S.

389 (1975), and other cases, but Respondents feel that

Petitioners have overlooked the significant key to this line

of cases. This line of cases is based on the “restriction of

the franchise.”

In the case of Hill v. Stone, 421 U.S. 389 (1975), resi-

dents of Fort Worth, Texas brought an action challenging

provisions limiting the right to vote in city bond issue elec-

tions to persons who had “rendered” property for taxation.

The Court held that such restriction of sufferage violated

the Equal Protection Clause.

There is no restriction of the franchise in the case at

hand since everyone is allowed to vote for Chairman of the

County Board of Education and for the particular board

member of the district in which the voter resides.

The decision below is supported by the case of Clark v.

Town of Greenburgh, 436 F. 2d., 770 (2d Cir. 1971);

Glisson v. Savannah Beach, 346 F. 2d. 135 (5th Cir. 1965)

and Rutledge v. Louisiana, 330 F. Supp. 336 (1971) and

the granting of summary judgment is supported by the

various facts and authorities cited.

22

The non-city resident Petitioners further contend that

even if revenue supports entitlement to city residents to the

right to vote, that the same should not be applicable in the

case before the court. Without delaying this response, it

seems sufficient to point out that to be considered are the

following: county student attendance to city schools, the vo-

cational school located within the jurisdiction of the City

of Jasper and the City Board of Education as well as the

other reasons previously mentioned. The Court in Clark

v. Town of Greenburgh, 436 F. 2d. 770, at 772:

“it is not for the court to determine whether the

quantum of services voters receive justifies the taxes

they pay.”

It appears from a comparison of Clark and the case at

hand that the latter has a even stronger factual situation

that demands the right to vote for the residents of the

Cities of Carbon Hill and Jasper.

285

For the foregoing reasons, the Petition-fer. Writ of Cer-

tiorari should be denied.

This _......... day of December, 1976.

Respectfully submitted,

PHituir A. Larrp

Evuiotr & Lairp

211-216 Blanton Building

Jasper, Alabama 35501

Attorney for Defendants-

Respondents

MaAppox, MACLAURIN & NICHOLSON

First National Bank Building

Jasper, Alabama 35501

SELMAN, BEAIRD & SELMAN

Phillip-Stanley Building

Jasper, Alabama 35501

24

PROOF OF SERVICE

I hereby certify that as a member of the bar of the Su-

preme Court of the United States, all parties required to

be served have been served copies of the Brief in Response

to Petition for Writ of Certiorari in compliance with the

Rules of the Supreme Court of the United States, by de-

positing each in the United States mail, sufficient postage

prepaid, addressed to the following:

1. Mr. Edward Still, 601 Title Building, Birmingham,

Alabama 35203.

2. Mr. Laughlin McDonald, 52 Fairlie Street N.W., ! . A p Dp E N D [ > 4

Atlanta, Georgia 30303.

3. Mr. Neil Bradley, 52 Fairlie Street N.W., Atlanta,

Georgia 30303.

4. Mr. Melvin L. Wulf, 22 East 40th Street, New York,

New York, 10016.

Done this day of December, 1976.

Puittie A. Lairp

Counsel for Respondents

Al

APPENDIX

Code of Alabama, Title 52, Section 63, 1971 Cum. Supp.

To Vol. Twelve, Page 29.

§63. Members—The county board of education 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 elementary edu-

cation, 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; provided, that in counties having populations

of not less than 96,000 nor more than 106,000 according to

the most recent federal decennial census, not more than

one classroom teacher employed by the board may serve as

a board member and also as a teacher. (1927 School Code,

§87; 1964, Ist Ex. Sess., p. 346, appvd. Sept. 4, 1964.)

ACTS OF ALABAMA, SPECIAL SESSION 1965, Vol. 1,

Pg. 188, Act No. 138:

To provide further for the control, supervision and ad-

ministration of public schools in Walker County; to fix

the qualifications and to provide for the election of a chair-

man and associate members of the county board of educa-

tion; to fix their terms of office; to provide for their com-

pensation, 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 coun-

ty board of education, which shall consist of a chairman

and four associate members.

Section 2. The chairman of the board shall be a resi-

dent and qualified voter of any district or beat in the

county, a person of good moral character, of good standing

A2

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 follow-

ing 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 resi-

dent and qualified elector of each of the four districts from

which members of the county governing body are elected.

Each shall be a person of good moral character, of good

standing in his community, known for his honesty, busi-

ness 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 mem-

ber 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; one member shall

be nominated and elected by the qualified nominated and

elected by the qualified electors of district four.

Section 4. The incumbent chairman and members of

the board shall hold office until their respective terms ex-

pire. The successor members of the board to be elected

from districts one and three shall be elected at the general

election in 1930; the successor members of the board to be

elected from districts two and four shall be elected at the

general election in 1968; the successor chairman of the

board shall be elected at the general election in 1966. The

chairman and members shall take office immediately fol-

lowing their election and qualification and each shall serve

for a term of six years and until his successor is elected

and qualified. Vacancies in office of chairman or associate

member of the county board of education shall be filled in

the manner prescribed by general law.

° “A3

Section’ 5. The: members of the board: shall -be com-

pensated at the rate of fifteen dollars ($15.00) «per diem

for attending meetings for: the board but: not :to exceed

two meetings in any one month. The chairman of the

‘board shall: be compensated at the rate of fifty ‘dollars

($50.00) per month irrespective of the number of meet-

ings attended.

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 of the Act is declared invalid or unconstitutional,

such declaration shall not affect the part which remains.

Section 8. This Act shall become effective immediate-

ly upon its passage and approval by the Governor, or upon

its otherwise becoming a law.

Approved March 29, 1965.

Time: 4:50 P.M.

CONSTITUTION OF ALABAMA, CODE OF ALA-

BAMA, Vol. 1, Pg. 197, ARTICLE 5, Section 138:

Sec. 138. A sheriff:-shall. be elected in each. county by

the qualified electors thereof, who shall hold office for a

term of four years, unless sooner removed, and he shall be

ineligible to such office as his own successor; provided,

that the terms of all sheriffs expiring in the year nineteen

hundred and four are hereby extended until the time of

the expiration of the terms of the other executive officers

of this state in the year nineteen hundred and seven, un-

less sooner removed. Whenever any prisoner is taken from

jail, or from the custody of any sheriff or his deputy, and

put to death, or suffers grievous bodily harm, owing to the

neglect, connivance, cowardice, or other grave fault of the

sheriff, such sheriff may be impeached under section 174

of this Constitution. If the sheriff be impeached, and there-

A4

upon conviction, he shall not be eligible to hold any office

in this state during the time for which he had been elected

or 1ppointed to serve as sheriff.

CONSTITUTION OF ALABAMA, CODE OF ALA-

BAMA, Vol. 1, Pg. 372, AMENDMENT 35.

XXXV

Sheriff Succeeding Self.

Section 128 of Article 5—A sheriff shall be elected in

each county by the qualified electors thereof who shall hold

office for a term of four years unless sooner removed, and

he shall be eligible to such office as his own successor.

Whenever any prisoner is taken from jail, or from the cus-

tody of any sheriff or his deputy, and put to death, or suf-

fers grievous bodily harm, owing to the neglect, ceuni-

vance, cowardice, or other grave fault of the sheriff, such

sheriff may be impeached, under section 174 of this Con-

stitution. If the sheriff be impeached, and thereupon con-

victed, he shall not be eligible to hold any office in this

state during the time for which he has been elected or ap-

pointed to serve as sheriff. (1936-37, Ex. Sess., p. 269.)