Appendix — Dougherty County Bd. of Ed. v. White

Supreme Court, Ure |

FILED

| MAY 4 1978

APPENDIX |

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

Octoser TERM, 1977

No. 77-120

DovcHerty County, Georcia Boarp or Epvucation; R. H.

Warren, Chairman, Dougherty County Board of Educa-

tion; Franxuin U. Cross, J. P. Cuzevers, Harvey Conen,

Mondax Murpny, Cuuck Nessitt, Flux Marsry, In.,

Members, Dougherty County Board of Education; Pau.

Rosertson, Superintendent, Dougherty County School Sys-

tem, individually and in their official capacities, Appellants.

vs.

Joun E. Wuite, Appellee.

On Appeal from a Three-Judge Court in the United States

District Court for the Middle District of Georgia,

Albany Division

Docxetep Jux 21, 1977

ProspaBLeE Jurispiction Notep MancR 20, 1978

INDEX

Page

Revevant Docker EN Tu la

COMPLAINT OF Plau rfrõů- 2a

ANSWER OF DerxNDña dr 8a

Puarntirr’s Fmsr Intrerrocarorres To Derenpants .. lla

Derenpant’s Answers ro Pfarrers Fmer Inrer-

BED 0b 66060000 eee eee dee et eee cede set l5a

DD . eee 18a

Motion ror Panrial. SUMMARY JUDGMENT ........... 20a

Puarntirr’s Motion ror Partian SuMMaRY JUDGMENT. 2la

Arripavir or Puarntirr Jonx E. Ware ............ 23a

Arrwavrr or Jonx R. Myer, BSG... 26a

re e e e606 00 28a

Orix tox or tae U.S. Distaict Court ror Tun Mol

District or Groroiua, ALBANY Drvision .,....... 29a

Notice or Arras. To THE Supreme Court or THE

Dreesen 37a

Date

6/11/76

6/24/76

7/20/76

8/23/76

12/14/76

12/14/76

12/16/76

12/16/76

12/16/76

4/28/77

5/27/77

la

Relevant Docket Entries

Filed complaint, issued summons and delivered

to US Marshal for service.

Filed Answer of Defendants, with Certificate of

Service thereon.

Filed Plaintiff’s First Interrogatories to De-

fendants, with Certificate of Service thereon.

Filed Defendants’ Answers to Plaintiff’s First

Interrogatories, with Certificate of Service

thereon.

Filed Stipulations by the parties.

Filed Defendants’ Motion for Partial Summary

Judgment, with brief in support thereof.

Filed Plaintiff’s Motion for Partial Summary

Judgment and brief in support thereof.

Filed Affidavit of Plaintiff John F. White.

Filed Affidavit of John R. Myer, Esq.

Filed Opinion of Judge Lewis R. Morgan, Cir-

cuit Judge, US Court of Appeals, Judge W. A.

Bottle, Senior U.S. District Judge and Judge

Wilbur D. Owens, Jr., US Ditsrict Judge re-

manding the case to the originating judge for

such other and further proceedings consistent

with this opinion as may be rendered, including

determination of any appropriate remedy.

Filed Notice of Appeal to the Supreme Court of

United States with Certificate of Service there-

on.

2a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ALBANY DIVISION

Crvm Action

No. 76-29-ALB

(Three Judge)

Fb June 11, 1976

Joun E. Wurrx, Plaintiff,

vs.

Dovonsaty County, GO Boarp or Epvcation; R. H.

Wannnx, Chairman, Dougherty County Board of Educa-

tion; Franxuin U. Cross, J. P. Cuzevens, Harvey Conen,

Monoaw Munrur, Cuvox Nessrrt, Flax Mannnv, In.,

Members, Dougherty County Board of Education; Paus.

Ronznrsox, Superintendent, Dougherty County School Sys-

tem, individually and in their official capacities, Defendants.

Complaint

I.

This action for declaratory, injunctive and monetary re-

lief is instituted to redress rights guaranteed by the Voting

Rights Act of 1965, 42 U.S.C. Sec. 1971, et geg., 42 U.S.C.

Sec. 1983, and the Fourteenth and Fifteenth Amendments,

United States Constitution. The jurisdiction of this Court

is invoked pursuant to 42 U.S.C. Sec. 1971(d), 28 U.S.C.

3a

Sec. 1343(3)(4), and 28 U.S.C. Sec. 1331. Plaintiff also

seeks declaratory relief pursuant to 28 U.S.C. Secs, 2201

aud 2202. The amount in controversy exceeds $10,000.

II.

Plaintiff requests the convening of a three-judge district

court pursuant to 42 U.S.C. Sec. 1971(g).

III.

Plaintiff, Jonx E. Wurrs, is an adult Black citizen of the

United States residing in Albany, Georgia.

IV.

Defendant, Dovonerty County Boarp or Epvcation,

exists pursuant to the Constitution and laws of the State

of Georgia, and is charged with the responsibility and func-

tion of establishing, maintaining, and operating the public

school system of Dougherty County, Georgia; R. H. Wan-

unn is Chairman, Dougherty County Board of Education.

He is sued in his individual and official capacity; Fran xin

U. Cross, J. P. Cuzevers, Harve” Conen, Mondax Murrny,

Cuavox Nessrrr, Feu Mannnv, In., are members of the

Dougherty County Board of Education. They are sued in

their individual and official capacities. PAUL, Roserrson is

Superintendent of the Dougherty County School System.

He is sued in his individual and official capacity.

V.

Plaintiff has been employed by the defendants in the

Dougherty County School System since 1966 as an Assist-

ant Coordinator of Student Personnel Services. Plaintiff

is employed on a twelve month basis. In 1972, plaintiff an-

nounced his candidacy for election to the Georgia House of

Representatives. In May, 1972, the defendants adopted

„Rule 58’’ which provides as follows:

4a

‘*PoxrricaL Orrice. Any employee of the school sys-

tem who becomes a candidate for any elective political

office, will be required to take a leave of absence, with-

out pay, such leave becoming effective upon the quali-

fying for such elective office and continuing for the

duration of such political activity, and during the pe-

riod of service in such office, if elected thereto.’’

VI.

On information and belief, plaintiff was the first Black

candidate from Albany for the Georgia House of Repre-

sentatives.

VII.

Plaintiff qualifled for the office in June, 1972. Pursuant

to the then recently adopted Rule 58, plaintiff was required

to take a leave of absence from his employment without pay

immediately upon his qualification for the election. Plain-

tiff was unsuccessful in the Democratic primary election

held in August, 1972. Plaintiff returned to employment with

defendants in September, 1972.

VIII.

In June, 1974, plaintiff again qualified to run for elec-

tion to the Georgia House of Representatives. Again, de-

fendants, pursuant to Rule 58, required plaintiff, effective

June 12, 1974, to take a leave of absence from employment

without pay during the pendency of his candidacy. Plain-

tiff was successful in the Democratic primary election held

in August, 1974. During the period following the primary

election until the General Election held on November 5,

1974, plaintiff continued to be denied employment. Plaintiff

was elected to the Georgia House of Representatives at

the General Election held November 5, 1974. Plaintiff was

reinstated in his employment with defendants effective

November 18, 1974.

5a

IX.

On June 8, 1976, plaintiff again qualified to run for elec-

tion to the Georgia House of Representatives. Defendants,

pursuant to Rule 58, then required plaintiff to again take a

leave of absence without pay, effective June 8, 1976, and

plaintiff is currently in that status and will remain so,

through the Primary Election to be held in August, 1976,

and if successful at that election, through the General Elec-

tion to be held in November, 1976.

First Cause of Action

X.

The actions of the defendants complained of herein are

in violation of the Voting Rights Act of 1965, 42 U.S.C.

Sec. 1971, et seg., in that defendants have instituted a

„voting qualification or prerequisite to vote, or standard,

practice or procedure with respect to voting different from

that in force or effect on November 1, 1964’’ without sub-

mitting or obtaining the required approval of either the

United States Attorney General or the United States Dis-

trict Court for the District of Columbia, as required by

Section Five of the Voting Rights Act of 1965. Defendants

are a covered jurisdiction’’ within the meaning of the

Voting Rights Act.

XI.

Because defendants have failed to comply wih the Vot-

ing Rights Act of 1965, Rule 58 is unenforceavie and the

defendants’ application of Rule 58 to plaintiff has been

unlawful.

Second Cause of Action

XII.

The actions of defendants complained of herein have

deprived, under color of state law, plaintiff of rights se-

6a

cured by the Voting Rights Act of 1965, the Fourteenth

and Fifteenth Amendments, United States Constitution, 42

U.S.C. Sec. 1983.

Third Cause of Action

XIII.

The actions of defendants complained of herein have vio-

violated plaintiff’s rights, as guaranteed by the Due Pro-

cess Clause, Fourteenth Amendment, United States Con-

stitution, in that, Rule 58 denies arbitrarily, capriciously

and irrationally, plaintiff his rights to liberty and property

to pursue his employment.

Fourth Cause of Action

XIV.

The actions ofdefendants complained of herein have vio-

lated plaintiff’s rights as guaranteed by the Equal Protec-

tion Clause, Fourteenth Amendment, in that, the Rule 58

discriminates on the basis of race.

Fifth Cause of Action

XV.

The actions of defendants complained of herein have

violated plaintiff’s rights as guaranteed by the Fifteenth

Amendment, United States Constitution, in that, Rule 58

discriminates and abridges, on the basis of race, plaintiff’s

rights.

Wuenerorg, plaintiff respectfully prays that this Court:

1. Convene a three-judge district court, pursuant to 42

U.S.C. 1971(g) ;

2. Declare that Rule 58 is in violation of the Voting

Rights Act to 1965, the Fourteenth and Fifteenth Amend-

ments, United States Constitution, and 42 U.S.C. 1983;

7a

3. Preliminary and permanently enjoin defendants from

enforcing or implementing Rule 58;

4. Grant plaintiff an award of money equal to the amount

of back pay lost because of defendants’ application of Rule

58 applied to plaintiff as complained of herein;

5. Grant plaintiff an award of reasonable attorney’s

fees;

6. Grant such other and further relief as the Court

deems meet and proper.

/s/ Joun R. Myer

John R. Myer

CrosLanp, Myer & Rinpskopr

2415 National Bank of Georgia Bldg.

Atlanta, Georgia 30303

Attorney For PLaIntirF

8a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ALBANY DIVISION

Crvm Action

No. 76-29-ALB

FD June 24, 1976

[Trin Omittep 1n Printine]

Answer of Defendants

Now come the Defendants and file these their responses

to the Complaint heretofore filed, and for response show

the Court as follows:

First Defense

The Complaint fails to set forth a cause of action against

these Defendants upon which relief can be granted.

Second Defense

1. Answering paragraph 1 of the Complaint, these de-

fendants admit that the action alleges that it is for declara-

tory, injunctive and monetary relief and further to redress

rights guaranteed by the Voting Rights Act of 1965, 42

USC §1971, et seq., 42 USC §1983, and the Fourteenth

and Fifteenth Amendments, United States Constitution.

Further, these defendants admit that plaintiff alleges that

jurisdiction of this Court is involved pursuant to the stat-

utes set forth in paragraph one and that the plaintiff also

alleges that he seeks declaratory relief pursuant to 28

USC & 2201 and 2202.

9a

Further answering paragraph 1 of the Complaint, these

defendants show that they have in no way deprived the

plaintiff of any rights guaranteed as alleged in paragraph

1 of the Complaint and deny that the amount in controversy

exceeds $10,000.00.

2. Answering paragraph 2 of the Complaint, these de-

fendants show that the Complaint filed in this matter does

not require the convening of a three-judge district court

pursuant to 42 USC §1971(g).

3. These defendants admit the allegations of paragraph

3 of the Complaint.

4. These defendants admit the allegations of paragraph

4 of the Complaint.

5. These defendants admit the allegations of paragraph

5 of the Complaint.

6. These defendants are without sufficient knowledge

with which to form a belief as to the truth of the allegations

of paragraph 6 of the Complaint.

7. These defendants admit the allegations of paragraph

7 of the Complaint.

8. These defendants admit the allegations of paragraph

8 of the Complaint.

9. These defendants admit the allegations of paragraph

9 of the Complaint.

10. These defendants deny the allegations of paragraph

10 of the Complaint and further show that these defendants

have not instituted a ‘‘voting qualification or prerequisite

to vote, or standard, practice or procedure with respect to

voting different from that in force or effect on November

1, 1964’’.

11. These defendants deny the allegations of paragraph

11 of the Complaint.

10a

12. These defendants deny the allegations of paragraph

12 of the Complaint.

13. These defendants deny the allegations of paragraph

13 of the Complaint.

14. These defendants den, the allegations of paragraph

14 of the Complaint.

15. These defendants deny the allegations of paragraph

15 of the Complaint.

16. These defendants deny each and every allegation of

the Complaint not herein admitted, controverted or spe-

cifically denied.

Wuezerong, these defendants having fully answered, pray

that they be discharged.

Perry, Waters, Liperrr & Custer

/s/ Jesse W. Warrers

Jesse W. Walters

Attorneys for Defendants

(Cenrricats or SVO Omirrep N Partie)

lla

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ALBANY DIVISION

Crvm Action No. 76-29-ALB

(Three Judge)

Fp June 20, 1976

(Trruz Omirrep 1n Printine]

Plaintiff's First Interrogatories to Defendants

To: Jesse W. Walters, Esq.

P. O. Box 527

Albany, Georgia 31702,

Attorney for Defendants.

Piease TARA Notice that plaintiff hereby requests, pur-

suant to Rule 33 of the Federal Rules of Civil Procedure,

that defendants answer under oath within thirty (30) days

of service hereof, the following written interrogatories.

After the answer to each interrogatory, you are required

to identify separately and in a manner suitable for use as a

description in a subpoena all sources of information (docu-

mentary, human or other) and all records maintained by

defendant or any other person or organization upon which

you rely in answering the interrogatory or which pertain

or relate to the information requested. These interroga-

tories shall be deemed continuing to the time of trial. Re-

sponses to one interrogatory or part thereof may be in-

corporated by reference in response to other interroga-

tories or parts of interrogatories where clarity of answer

12a

will not be compromised. In lieu of identifying particular

documents, said document may be attached at the option of

defendant to the responses to these interrogatories.

Each of the following interrogatories shall be deemed

continuing and you are requested to provide, by way of

supplementary answers thereto, such additional informa-

tion as may hereinafter be obtained by you or any person

acting on your behalf (including your counsel of record)

which information will augment or otherwise modify any

answer now given to the attached interrogatories. Any

such supplementary responses are to be filed and served

upon counsel of record for the plaintiff within thirty (30)

days after receipt of such information but not later than

the time of trial or hearing.

1. Please state the names and addresses of persons serv-

ing as members of the Dougherty Board of Education from

1970 to the present, and for each such person, indicate the

terms of service.

2. State the names and business addresses of all persons

who promulgated and adopted Rule 58 of the Dougherty

County Board of Education.

3. State the names and business addresses of all persons

not identified in your answer to the preceding interroga-

tory who participated in the formulation, development,

promulgation and adoption of Rule 58 and who would have

information concerning its adoption.

4. State in detail the reasons why Rule 58 was adopted

by the Dougherty County Board of Education and identify

the source or sources upon which you rely for your answer

to this interrogatory.

5. State whether in the past or present, any employee of

the Dougherty County Board of Education (other than

plaintiff) has ever run for public office while an employee

of the Dougherty County Board of Education.

13a

6. If your answer to the preceding interrogatory is affirm-

ative, for each such person identified, please state:

(a) His/her name, race, address and past or present

position with the Dougherty County Board of Educa-

tion;

(b) The public office sought and the dates of such

candidacy or service as an elected official;

(c) Whether such employee was required to take a

leave of absence from employment without pay or

otherwise was subjected to any adverse employment

action.

7. Please identify with sufficient specificity for a descrip-

tion in a subpoena duces tecum all written documents, in-

cluding studies, reports, correspondence, memoranda, or

other regarding Rule 58 and for each such documents, state

the name, business address of the custodian of the written

document.

8. State whether the Dougherty County Board of Educa-

tion had ever adopted or implemented any rule or rules

concerning candidacy for or service in public office prior

to the adoption of Rule 58.

9. If your answer to the preceding interrogatory is af-

firmative, please identify in detail any such rule or rules,

including whether in written form and when adopted or

implemented.

10. Do you contend that the Dougherty County Board of

Education is not a covered jurisdiction’’ within the mean-

ing of the Voting Rights Act of 1965.

11. Please state the names, business titles, race and dates

of leave of all other employees of the Dougherty County

Board of Education who have been required to take leaves

pursuant Rule 58.

14

12, Please state in detail the reasons why Rule 58 was not

submitted to the United States Attorney General or the

United States District Court for the District of Columbia

pursuant to Section Five of the Voting Rights Act of 1965

prior to its implementation.

/s/ Joun R. Myer

John R. Myer

2415 National Bank of Georgia Bldg.

Atlanta, Georgia 30303

(404) 522-1934

Attorney For Plaintiff

(Certiricats or Service Omitrep rm Patina]

15a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ALBANY DIVISION

Crvm Action

No. 76-29-ALB

(Three Judge)

Frrzep Avevust 23, 1976

[Trriu Omitrep 1n Paintine]

Defendants’ Answers to Plaintiff's First Interrogatories

In response to Interrogatories served upon the Defend-

ants, by the Plaintiff in the above case, the Defendants an-

swer as follows:

1. R. H. Warren, III, Warren & Brimberry, Ine., P. O.

Box 1110, Albany, Georgia 3170 2—has served from 1969

to present; Felix Marbury, Marbury Pecans, 1440 Gillion-

ville Road, Albany, Georgia 31707—served from 1964 until

June 1976; Morgan Murphy, First State Bank & Trust

Company, P. O. Box 8, Albany, Georgia 31702—has served

from 1970 to present; Dr. J. P. Cheevers, 309 Whitney Av-

enue, Albany, Georgia 31701—has served from 1968 to

present; Harvey J. Cohen, P. O. Box 507, Albany, Georgia

31702—has served from 1970 to present; Franklin U. Cross,

P. O. Box 4332, Albany, Georgia 31702—has served from

1969 to present; Charles L. Nesbitt, 1441 South Mock Road,

Albany, Georgia 31705—has served from 1970 to present;

16a

Fred Sumter, First Federal Savings and Loan Association,

P. O. Box 648, Albany, Georgia 31702—appointed July,

1976.

2. All persons listed in Number 1 above except Fred

Sumter.

3. J. J. Cordell, Superintendent (retired), 1615 Third

Avenue, Albany, Georgia 31707; Howard D. Waters, Di-

rector, Albany Area Technical School (retired), 917 Sixth

Avenue, Albany, Georgia 31701; Jesse W. Walters, Attor-

ney, 409 North Jackson Street, Albany, Georgia 31701;

Paul B. Robertson, Asst. Superintendent, 601 Flint Av-

enue, P. O. Box 1470, Albany, Georgia 31702.

4. Rule 58 was adopted by the Dougherty County Board

of Education because the Board of Education deemed it

necessary to have a rule which would set forth the policy of

the Board pertaining to personnel within the school system

offering for elective office and serving in an elective office

if elected thereto.

5. None, so far as can be ascertained.

6. Not applicable.

7. Minutes of Board of Education meeting of June 12,

1972; minutes of Board of Education meeting of Septem-

ber 9, 1974; and minutes of Board of Education meeting

of October 14, 1974.

8. No.

9. Not applicable.

10. Yes.

11. None, however, no employee of Dougherty County

Board of Education other than plaintiff has offered for

public office.

12. See answer to Number 10.

17a

Grorcu,

Doveuerty County:

Personally appeared before the undersigned officer duly

authorized by law to administer oaths, Paul. B. Rosertson,

who, after being duly sworn, deposes and on oath says that

he is Superintendent of the Dougherty County School Sys-

tem, and the answers contained in the foregoing Derenp-

ant’s Answers To PLaintirr’s IwrTeRRocaTorigs are true

and correct to the best of his knowledge and belief.

/s/ Paul B. Rosertson

Paul B. Robertson

(Cestiricate or Service Omirrep I Parintine]

18a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ALBANY DIVISION

Crvm Action No. 76-29-ALB.

(Three judge)

Fb Decemser 14, 1976

(Trrzez Omirrep in Printina]

Stipulations

Come now the parties, through their undersigned attor-

neys, and hereby stipulate for the purposes of this action

the following stipulations of fact.

1. The Dougherty County Board of Education is the

body empowered by the Constitution of the State of Geor-

gia with the responsibility for administering the Dougherty

County, Georgia public school system.

2. Plaintiff John E. White is a Black citizen of the

United States residing in Albany, Georgia.

3. Plaintiff has been employed by the Dougherty County

Board of Education as an Assistant Coordinator of Stu-

dent Personnel Services since November, 1966.

4. On June 12, 1972, the Dougherty County Board of

Education adopted Rule 58.

5. Pursuant to Rule 58, plaintiff has had to take leaves

of absence without pay from his position with the Dough-

erty County Board of Education during the periods of his

19a

candidacy for the office of representative in the Georgia

House of Representatives:

1972: June, 1972—September, 1972.

1974: June 12, 1974—November 18, 1974.

1976: June 8, 1976—September 8, 1976.

6. No submission of Rule 58 has been made by the

Dougherty County Board of Education or its authorized

agents for approxal pursuant to the Voting Rights Act

of 1965.

The foregoing matters were stipulated and agreed upon

between John R. Myer, Attorney for Plaintiff, and Jesse

W. Walters, Attorney for Defendants, in telephone conver-

sation, this 13th day of December, 1976.

/s/ Jesse W. WauTERs

Jesse W. Walters

Attorney for Defendants

20a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ALBANY DIVISION

Crvm Action No. 76-29-ALB.

Frrzep December 14, 1976

[Trin Omrrrep mw Printine]}

Motion for Partial Summary Judgment

The defendants move the Court to enter a partial Sum-

mary Judgment in their favor against Plaintiff on the

ground that there is no genuine issue as to any material

fact pertaining to the alleged violation of the Voting

Rights Act of 1965 on the part of the defendants. This

being true the defendants are entitled to judgment as a

matter of law.

This motion is based upon the pleadings and any stipu-

lations of record.

This 13th day of December, 1976.

Perry, Waters, Lippitt & Custer

7s, Jesse W. Watters

Attorneys for Defendants

[CATI CATI or Service OmitTep 1n Paintine]

2a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ALBANY DIVISION

Crvm Action No. 76-29-ALB.

(Three judge)

Fp December 16, 1976

(Trrte Omirrep 1n PaRinTING]

Plaintiff's Motion for Partial Summary Judgment

Comes now the Plaintiff, through his undersigned attor-

ney, and moves this Court, pursuant to Rule 56, F.R.C.P.

for an order granting partial summary judgment in his

favor on Count One of the Complaint. Specifically, Plain-

tiff moves this Court to enter an order declaring that de-

fendants are required to obtain approval, pursuant to Sec-

tion 5 of the Voting Rights Act of 1965, of Rule 58 of the

Dougherty County Board of Education, and enjoining the

enforcement of Rule 58 until such approval and ordering

an award of lost wages and attorneys fees.

This Motion for Partial Summary Judgment is based

upon the pleadings and interrogatories on file in this case,

the Affidavits attached hereto, and the Stipulation of the

parties entered into for the purposes of this Motion.

This 13th day of December, 1976.

22a

Respectfully submitted,

7s, Joun R. Myer

John R. Myer

CrosLanp, Myer & Rinpsxopr

2415 National Bank of Georgia

Building

Atlanta, Georgia 30303

404-522-1934

Attorney for Plaintiff

23a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ALBANY DIVISION

Crvm Action No. 76-29-ALB.

(Three judge)

Fb Decemser 16, 1976

(Tire Omittep 1n Printine]

Affidavit of Plaintiff John E. White

State or Groroia )

County or DoucHERTY ) *

Comes now Joun E. Wuire before the undersigned No-

tary Public and on oath deposes and says as follows:

1. I am the plaintiff in this action. I am an adult Black

citizen of the United States residing in Albany, Georgia.

2. I have been employed by the Dougherty County

Board of Education since November, 1966. During that

time, I have served as an Assistant Coordinator of Stu-

dent Personnel Services. Beginning in March, 1975, my

working hours were changed by the Board of Education

from 8:00 a.m. to 4:00 p.m. to 2:30 p.m. to 10:30 p.m.

3. In May, 1972, I informed the Director of the Albany

Vocational School of my intention to run for the Georgia

House of Representatives.

4. On June 10, 1972, the Dougherty County Board of

Education adopted Rule 58.

24a

5. I believe that I am the first Black citizen to run from

Dougherty County for the Georgia General Assembly in

many, many years; perhaps the first since the Post-Civil

War Reconstruction Era.

6. I qualified to run for the office in June, 1972, and

pursuant to the recently adopted Rule 58, I was required

to take a leave of absence from my employment without

pay. I lost the Democratic primary election in August,

1972 and returned to my employment in September, 1972.

7. In June, 1974, I again qualified to run for the Geor-

gia House of Representatives. Again, effective June 12,

1974, I was required to take a leave of absence from my

employment with the Dougherty County School Board with-

out pay during the time of my candidacy. I was successful

in the Democratic Primary election held in August, 1974.

During the period of time following the primary election

and until the General Election in November, 1974, I was

continually denied employment because of Rule 58. I was

elected to the House of Representatives in the November,

1974 General Election held on November 5, 1974. I was re-

instated in my employment on November 18, 1974.

8. On June 8, 1976, I again qualified to run for re-elec-

tion to the Georgia House of Representatives. Defendants,

pursuant to Rule 58, again required me to take a leave of

absence without pay effective June 8, 1976. I was denied em-

ployment from that date until after my re-election in the

August, 1976 Democratic Primary. On September 8, 1976, I

was reinstated in my position. I did not have General Elec-

tion opposition in 1976.

9. I have suffered, as a result of the application of Rule

58 to my employment, loss of compensation in the follow-

ing amounts:

1972—$2,810

1974—$4,780

1976—%3,750

25a

This affidavit is given in support of my Motion for Partial

Summary Judgment.

This 13 day of December, 1976.

/s/ Joun E. WRT

John E. White

26a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ALBANY DIVISION

Crvm Action No. 76-29-Alb.

(three-judge)

FD Decemser 16, 1976

[Tris Omirrep ix Paintine]

Affidavit of John R. Myer, Esq.

State oF Gzorciu )

County or Futon ) ”

Comes now Joun R. Mrrn, Esd., before the undersigned

Notary Pusuic who on oath deposes and says as follows:

1. I am a member of the Bar of the State of Georgia

engaged in the private practice of law. I maintain my of-

fices at 2514 National Bank of Georgia Building, Atlanta,

Georgia.

2. I represent the plaintiff, John E. White, in the above

captioned action.

3. During the course of my representation of plaintiff,

I received from the office of the United States Attorney

General a copy of a letter dated August 26, 1976 to Mr.

Paul Robertson, Superintendent, Dougherty County School

System from J. Stanley Potting, Assistant Attorney Gen-

eral, Civil Rights Division. A copy of that letter is attached

hereto as Exhibit A.

27a

This affidavit is given in support of plaintiff’s motion

for partial summary judgment.

This 12th day of December, 1976.

7s, Joun R. Myer

John R. Myer

28a

Exhibit A

Mr. Paul Robertson

Superintendent

Dougherty County School System

Post Office Box 1470

Albany, Georgia 31702

Dear Mr. Robertson:

It has been brought to my attention that in 1972 the

Dougherty County Board of Education adopted a rule re-

quiring employees of the school system who become can-

didates for elective office to take a leave of absence, without

pay, during their candidacy and service in office.

Our records fail to show that this change in a standard,

practice or procedure which affects voting has been submit-

ted to the United States District Court for the District of

Columbia for judicial review or to the Attorney General

for administrative review as required by Section 5 of the

Voting Rights Act of 1965, as amended. If our information

is correct, it is necessary that this change either be brought

before the District Court for the District of Columbia or

submitted to the Attorney General for a determination that

the change does not have the purpose and will not have the

affect of discriminating on account of race or color. Changes

in procedure which affect voting are unenforceable unless

and until the Section 5 preclearance requirements have

been met.

If you have any questions concerning the matters dis-

cussed in this letter, please do not hesitate to call Ms.

Elizabeth Dunigan (202-739-3887) of my staff, who has

been assigned to handle this matter. Please refer to File

No. X7539 in any written response to this letter so that

your correspondence will be properly channelled.

Sincerely,

J. Stanley Pottinger

Assistant Attorney Ceneral

Civil Rights Division

29a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ALBANY DIVISION

Crvm. Action No. 76-29-Alb.

FD Apri 28, 1977

(Trrze Omirrep ix Parintrine]

Before Morcan, Circuit Judge; Bocix, Senior District

Judge; Owens, District Judge.

Owens, District Judge:

Opinion

In 1965 Congress enacted the Voting Rights Act to elim-

inate the racial discrimination in voting that Congress be-

lieved to still exist in a minority of the states of these

United States, chiefly those in the traditional South. As

contemplated, only eleven states were brought within the

coverage of the Act—South Carolina, Alabama, Alaska,

1 As originally enacted, the law was to apply

% in any State or in any political subdivision of a state which

(1) the Attorney General determines maintained on Novem-

ber 1, 1964 any test or device, and with respect to which (2)

the Director of the Census determines that less than 50 per-

centum of the persons of voting age residing therein were

registered on November 1, 1964, or that iess than 50 percentum

of such persons voted in the presidential election of Novem-

ber 1964.’’ 42 U.S.C.A. Sec. 1973b(b).

The appropriate determinations subjecting Georgia and its politi-

cal subdivisions to the Act were made on August 6, 1965, and pub-

lished in the Federal Register on August 7, 1965. 30 Fed. Feg. 9897.

30a

Georgia, Louisiana, Mississippi, Virginia, twenty-six coun-

ties in North Carolina, three counties in Arizona, one

county in Hawaii, and one county in Idaho. South Caro-

lina v. Kateenbach, 383 U.S. 301, 15 L. Ed. 2d 769, 86 S. Ot.

803 (1966).

Section Five of the Act, 42 U.S.C.A. § 19730, provides

that whenever a covered state of political subdivision ‘‘shall

enact or seek to administer any voting qualification or

prerequisite to voting, or standard, practice, or procedure

with respect to voting different from that in force or effect

on November 1, 1964. . .’’ it may not utilize or implement

such change until (a) it has secured a judicial determina-

tion in the U.S. District Court for the District of Columbia

that the change does not have the purpose or effect of

denying the right to vote on account of race or (b) it has

submitted such change to the Attorney General of the

United States and the Attorney General has not interposed

an objection within sixty days. While the Act does not

specifically provide a remedy for failure to comply with

Section Five, the Supreme Court has held that a complaint

for injunctive relief to be heard by a district court of

three judges may be filed in any U.S. District Court and

that court if it is shown that Section Five applies must

enjoin the utilization or implementation of such change

until Section Five is complied with. Allen v. Board of Elec-

tions, 393 U.S. 544, 22 L. Ed. 2d 1, 89 S. Ct. 817 (1969).

While the word ‘‘vote’’ is broadly defined in the Act, to

wit: all action necessary to make a vote effective includ-

ing, but not limited to, registration or other action required

by State law prerequisite to voting, casting a ballot, and

having such ballot counted and included in the appropriate

totals of votes case.. 42 U.S. C. A. §1971(e), the outer

limits of the applicability of the Act remained in doubt and

subject to argument until the Supreme Court decided Allen,

supra, in 1969.

3la

The Allen decision disposed of appeals in three separate

cases from Mississippi and one from Virginia. The Missis-

sippi cases concerned (1) a Mississippi law authorizing

county officials to change from district to at-large elections,

(2) a Mississippi law eliminating the option of certain

counties to elect or appoint a county superintendent of edu-

cation and specifying that the superintendent shall be ap-

pointed, and (3) a Mississippi law changing the require-

ments for independent candidates running in general elec-

tions. The Virginia case involved a bulletin issued by the

Virginia Board of Elections changing procedures for illit-

erates to vote. Pointing to the broad definition of the word

‘*vote’’ and the legislative history of the Act, the Court

rejected the invitation to narrowly construe the applica-

bility of the Act to just the voting process and proceeded

to find that the Act was ‘‘intended to reach any state en-

actment which altered the election law of a covered state

in even a minor way... . Allen, supra, at 566; 22 L. Ed.

2d at 17; 89 S. Ct. at ——. (emphasis added). The Vir-

ginia bulletin and each of the Mississippi laws were held

to be encompassed by the Act, and each District Court

was instructed ‘‘to issue injunctions restraining the fur-

ther enforcement of the enactments until such time as the

States adequately demonstrate compliance with §5.’’ Id.

at 572, 22 L. Ed 2d at 21, 89 S. Ct. at ——.

Relying on Section Five as broadly interpreted, the plain-

tiff John E. White, a black citizen of Dougherty County,

Georgia, filed his complaint alleging that in May 1972 while

employed by the Dougherty County Board of Education, he

publicly announced his intention to become a candidate for

a seat in the House of Representatives of the General As-

sembly of Georgia. Plaintiff White states that he thus be-

came the first black in recent years to seek election in

Dougherty County as a Representative to the General As-

sembly. In June 1972 the defendant Dougherty County

32a

Board of Education for the first time adopted the follow-

ing policy known as Rule 58:

**PotiticaL Orrice. Any employee of the school system

who becomes a candidate for any elective political of-

fice, will be required to take a leave of absence, without

pay, such leave becoming effective upon the qualifying

for each elective office and continuing for the duration

of such political activity, and during the period of

service in such office, if elected thereto.

As required by this rule the plaintiff took a leave of

absence without pay from the time of his qualification as

a Democratic primary candidate in June 1972 until his

defeat in the Democratic primary election in August 1972.

In June 1974 he again qualified to run for the same office

and was required to take a leave of absence from his em-

ployment on June 12, through and including his winning

the August 1974 primary election and the November 1974

general election. Following the general election of Novem-

ber 5 he was reinstated in his employment on November 18,

1974. The court has not been advised whether or not he had

opposition in the general election. On June 8, 1976, he

again qualified to run for the same office and was required

to take a leave of absence without pay through and includ-

ing the August 1976 Democratic primary election. He won

that election, did not have opposition in the general elec-

tion, and was reinstated to his employment on September

8, 1976, preceding the November general election. Plain-

tiff’s affidavit shows that as a result of these leaves of ab-

sence without pay, he was deprived of the following

amounts of monetary compensation:

1972 $ 2,810.00

1973 4,780.00

1976 3,750.00

33a

Rule 58 has not been submitted for United States District

Court for the District of Columbia judicial approval or to

the Attorney General for him to have the opportunity to

disapprove, all pursuant to Section Five. Plaintiff contends

that Rule 58 is encompassed by Section Five and that its

use must be enjoined until Section Five is complied with.

Defendants assert that even the discussed expansive inter-

pretation of Section Five does not reach what is purely

a personnel policy of a local public board of education.

The facts as recited have been stipulated, cross motions

for partial summary judgment have been filed, briefs have

been submitted, and the issue of whether or not Rule 58 is

subject to the procedures of Section Five is ready for de-

cision by this district court of three judges.

This district court of three judges is required to re-

solve and dispute as to the coverage of Section Five, or

said more directly, to determine ‘‘whether such changes

have the potential for diluting the value of the Negro

vote and are within the definitional terms of § 5.’’ Georgia

v. United States, 411 U.S. 526 ,534, 36 L. Ed. 2d 472, 481,

93 S. Ct. 1702, —— (1973). The question of coverage to be

decided by this court does not include the ultimate question

required by Section Five to be presented to the District

Court for the District of Columbia or the Attorney Gen-

eral, i.e., whether or not the enactment in truth and fact has

a discriminatory purpose or effect. Perkins v. Matthews,

400 U.S. 379, 383, 27 L.Ed. 2d 476, 482, 91 S.Ct. 431 ——

(1971).

Section Five as judicially interpreted sweeps broadly

over all phases of the electoral system so as to include

even the statutory change of the date by which a declara-

tion of candidacy must be filed, Hadnott v. Amos, 394 U.S.

3581, 22 L. Ed. 2d 336, 89 S.Ct. 1101 (1969); changes of the

location of polling places and municipal annexations en-

larging the number of voters. Perkins, supra; and the en-

34a

largement of the distance from the polling place within

which campaigning is allowed, Clayton v. North Carolina

State Board of Elections, 319 F. Supp. 915 (E.D. N.C.

1970). ä

As the Supreme Court said in Georgia v. United States,

supra, in deciding whether or not Georgia’s 1972 legislative

reapportionment plan was subject to $5:

‘*. .. Section 5 is not concerned with a simple inventory

of voting procedures, but rather with the reality of

changed practices as they affect Negro voters.

„The applicability of § 5 to election law changes such

as those enacted by Georgia in its 1972 plan was all

but conclusively established by the opinion of this

Court in Allen v State Board of Elections, 393 US 544,

22 L Ed 2d 1, 89 S Ct 817. The Allen opinion, dealing

with four companion cases, held that §5 applied to a

broad range of voting law changes, and was constitu-

tional as applied. With respect to the reach of § 5, we

held that [the legislative history on the whole sup-

ports the view that Congress intended to reach any

state enactment which altered the election law of a

covered State in even a minor way.’ Id., at 566, 22 L

Ed 2d 1.

„Had Congress disagreed with the interpretation of

§5 in Allen, it had ample opportunity to amend the

statute. After extensive deliberations in 1970 on bills

to extend the Voting Rights Act, during which the

Allen case was repeatedly discussed, the Act was ex-

tended for five years, without any substantive modifi-

cation of §5. Pub L 91-285, 84 Stat 314, 315. We can

only conclude, then, that Allen correctly interpreted

the congressional design when it held that ‘‘the Act

gives a broad interpretation to the right to vote, recog-

nizing that voting includes ‘all action necessary to

35a

make a vote effective.’ ’’ 393 US at 565-566, 22 L Ed 2d

1.’’ Id at 531-533, 36 L. Ed 2d at 479-80, 93 S.Ct. at

Section Five, then, is more than a narrow guarantee

against interference with the actual casting of a ballot.

It is instead an all-encompassing protection against

abridgement of an effective vote and to that end prohibits

prior to required District of Columbia federal scrutiny, the

enforcement of enactments of every nature or sort which

touch the electorate’s ability to have a choice as well as its

right to choose. In short, it applies to modifications of the

political process and all the that process entails, including

the implementation of any policy implemented by a covered

„State or political subdivision’’, 42 U. S. C. A. § 1973c, which

restricts the ability of citizens to run for office.

Rule 58 of the Dougherty County Board of Education is

such a modification of the political process. By imposing

a financial loss on its employees who choose to become

candidates, it makes it more difficult for them to participate

in the democratic process and, consequently, restricts the

field from which the voters may select their representa-

tives. As in Allen, supra, and Hardnott, supra, it is an in-

creased barrier“ for a candidate and for that reason it is

a procedure with respect to voting“ that is subject to the

requirements of Section Five.

To paraphrase Georgia v. United States, supra, the ap-

plicability of Section 5 to rules and regulations which place

restrictions upon the opportunity of black citizens to offer

for elective office was all but conclusively established by

Allen, supra.

Rule 58 being subject to the requirements of Section Five

and those requirements having not been met, the enforce-

ment of Rule 58 must be enjoined by this court.

Ir Is Tuenerore Onperep, Apsupcep and Decrezp that

the defendants, their agents, officers, servants, employees

36a

and attorneys, and all persons in active concert with them

who receive actual notice of this order by personal service

or otherwise, are hereby enjoined from further using and

enforcing in any respect Rule 58 of the Dougherty County

Board of Education.

This three-judge court having finally resolved the issue

properly before it, does hereby dissolve itself and remand

the case to the originating judge for such other and fur-

ther proceedings consistent with this opinion as may be

required, including determination of an appropriate rem-

edy.

So Onpzrep, this the 27th day of April, 1977.

/s/ Lewis R. Morcan

Lewis R. Morgan, Circuit Judge

United States Court of Appeals

%s, W. A. Booriz

W. A. Bootle

Senior United States District Judge

7s, Wrusur D. Owens, Jr.

Wilbur D. Owens, Jr.

United States District Judge

37a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

ALBANY DIVISION

Crvn. Action No. 76-29-ALB.

(Three Judge)

Fruzp May 27, 1977

[Tirrte Omirrep in Printive]

Notice of Appeal to the Supreme Court of the United States

Norton is hereby given that Dougherty County, Georgia

Board of Education: R. H. Warren, Chairman, Dougherty

County Board of Education, Franklin U. Cross, J. P.

Cheevers, Harvey Cohen, Morgan Murphy, Chuck Nesbitt,

Felix Marbry, Jr., Members, Dougherty County Board of

Education; Paul Robertson, Superintendent, Dougherty

County School System, individually and in their cfficial

capacities, Defendants above named, and Appellants on

appeal, hereby appeal to the Supreme Court of the United

States from the final Order enjoining the defendants from

further using and enforcing Rule 58 of the Dougherty

County Board of Education for the reason that the Rule is

subject to the requirements of Section 5 of the Voting

Rights Act, 42 USC §1973(c) and the requirements of Sec-

tion 5 have not been met. The Order was entered in this

action on April 27, 1977 and the Order was filed April 28,

1977.

This appeal is taken pursuant to 28 USC 1253 and 42

USC 1973(c).

This the 27th day of May, 1977.

38a

Perry, Waters, Lirrrrr & CusTes

/s/ Jesse W. Watters

Jesse W. Watters, as Attorney for

Defendants—Dougherty County,

Georgia Board of Education: R. H.

Warren, Chairman, Dougherty |

County Board of Education; Frank-

lin U. Cross, J. P. Cheevers, Harvey

Cohen, Morgan Murphy, Chuck

Nesbitt, Felix Marbry, Jr.,

Members, Dougherty County Board

of Education; Paul Robertson,

Superintendent, Dougherty County

School System, individually and

in their official capacities,

Appellants.

[Curio or Service Omitrep in Printine]