# Appendix — Dougherty County Bd. of Ed. v. White > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0835%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1978 - **Citation:** 439 U.S. 32 ## Text 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] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0835%3A2. Public record. Not legal advice.