Appendix — Williams v. Brown
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APPENDIX
Volume I—pages 1a-322a .
IN THE
Supreme Court of the United States
OCTOBER TERM, 1978
No. 78-357
ROBERT R. WILLIAMS, et al.,
Appellants,
V.
LEILA G. Brown, et al.,
Appellees.
ON APPEAL FROM THE
UNITED STATES CourRT OF
APPEALS For THE FIFTH CIRCUIT
JURISDICTIONAL STATEMENT FILED AUGUST 30, 1978
PROBABLE JURISDICTION NOTED OCTOBER 30, 1978
Lat us vies ery,
i
INDEX
Volume I
Opinion (Per Curiam) of the Court of Appeals filed
SG ITER Salih sicih en Cocardechiesiniiianihcnlantbsinoesisanaerianiabeeedinanns
Judgment of the Court of Appeals filed June 2, 1978 ......
District Court Opinion and Order as to the Board of
School Commissioners of Mobile County, et al., filed
I i ssieaneabennoennaans
District Court Order and Decree Amending Order and
Decree Dated December 9, 1976, filed December 13,
i oc sss cunienmpenbaitiin
Judgment of the District Court filed January 18, 1977...
Relevant Docket Entnes in the District Court..................
ig Sf fMRI O EE CE
Distnct Court Order filed November 21, 1975, Dis-
missing Defendants Robert R. Wiliams, Dan C.
Alexander, Jr., Norman J. Berger, Ruth F. Drago and
ERIE TE OO OO LEE
Plaintiffs’ Motion for Certification of Class filed Decem-
a SE SRN Lar SSR eee Oo
District Court Order on Motion to Dismiss filed Decem-
TS as acidedisbghaduvemedibinsliieds
Preliminary Pretrial Order filed January 13, 1976............
District Court Order filed January 19, 1976, Granting
Plaintiffs’ Motion for Certification of Class.....0.............
Motion to Add Parties Defendant filed March 1, 1976....
Proposed Amended Complaint filed March 8, 1976........
Motion for Continuance of Defendants filed July 6,
Tie ipacdoadebebesiiotibakingeosusniniire
i ee
Second Motion for Continuance of Defendants filed
EL ahd ansidtdmesenmninstenoeneie
Page
la
3a
Sa
52a
56a
62a
75a
80a
ii / iii
Page Volume II
Answer to Amended Complaint of Defendants filed iii
Se I catia siete imnisapisitaasisenadsiecdssnsindsndvvipenindinpscies 106a —_
aig Aaiag " . — inant Defend- 113a | Testimony of Mrs. Lonia M. Gill..............::..::eeceeeeeee 323a
Preliminary Pretrial Order filed July 20, 1976.................. 118a ; Testimony of Mrs. Gerre Koffler.............cceeeseeeseeeeee 332a
Motion to Strike of Plaintiffs filed July 29, 1976 ............. 120a Testimony of Mr. James E. Buskey ...........2.0:c00ce0e000 347a
Supplemental Joint Pretrial Document Relevant to Mo- /
bile County School Board filed July 30, 1976............... 125a Testimony of Mr. Joseph N. Langan .....................0. 36la
District Court Notice of Order dated July 30, 1976, Testimony of Mr. John H. Friend ............ cece 374a-75a;
Granting Plaintitfs’ Motion to Strike...........cccccceseeeeee. 139a 388a-95a
ee Court Order on Pretrial Hearing filed August 9, 140a Testimony of Mr. Dan Alexander .............2sesececese0e00: 376a-87a
Motion to Sever and to Dismiss or Continue of Defend- Testimony of Mr. Meyer Perloff...............::ssceeeeeseeee 396a
ee agi of School Commissioners filed September 144a Testimony of Dr. James Everett Voyles.................... 407a
District Court Order on Defendant Board of School | Closing Argument of Mr. James U. Blacksivet.......... 429a
Tecra ers Mein 7 oe 1494 ; Closing Argument of Mr. Abe Philips...........0...00... 435a
Notice of Appeal filed February 15, 1977, by Defend- | Portions of Plaintiffs’ Exhibits Introduced During Pro-
SN cei ethan enbinhaiidehdaanisdid hatha endadintinandatiibenionidediscoansanesenes lSla | ceedings of September 9-17, 1976, Before the District
Notice of Cross-Appeal filed February 28, 1977, by Court:
RU RZ ARPS 152a '
Portions of Transcript of Proceedings of September 9- No.2 —Article of Dr. McLaurin on “Mobile
17, 1976, before the District Court: Blacks and World War II: The Devel-
Caption and Appearances .00......cccccceccseseseseseseceseseseees 154a opment of a Political Consciousness”... 445a
Index of District Court Proceedings ..............:ccccc000. 156a | No. 4 —1976 Mobile Voter Turnout for Selected
Commencement of District Court Proceedings: Wr acicieisisicneienssnsssanthdcmmnntdaaaabeSican 457a
2 a BICESTER a thy Betas Jee We Ace ee 166a No. 5 —1973 Mobile Voter Registration............... 458a
Tesumony of Dr. Cort B. Schlichting ..........00.000000000. 184
i Ha of Dr. Melton aes te A No.9 —Excerpts from Dr. Voyles’ Thesis: “An
y ERR ee : Analysis of Voting Patterns In Mobile,
Testimony of Mr. Cain J. Kennedy ..........0...0cccccceeeee 226a ‘ Adnbamen, TSGG- TSI wcccscccccssscnssivscseess 459a
Testimony of Mr. Gary Cooper ............cccccceceseseeeeeees 253a No. 10 —Regression Analysis of Votes Received
Testimony of Mr. Charles L. Cotrell ...........0.00.0:000000. 278a by Candidate Goode in Democratic
Testimony of Mr. Robert Edington.............cccccccec00e. 298a School Board Primary, May 29, 1962.. 504a
No.
No.
No.
No.
No
No
19
34
52
53
. 63
. 98
iv
—Regression Analysis of Votes in Russell
School Board Democratic Primary
a Se ee
—Regression Analysis of Votes Received
by Candidate Jacobs in School Board
Democratic Primary, June 2, 1970.......
—Regression Analysis of Votes Received
by Candidate Gill in School Board
Place 1, Democratic Primary Runoff,
ON TU Sk bledittdncsciniatatancitawenbicnderiins
—Summary of Regression Analyses for All
Elections Analyzed by Plaintiffs...........
—Excerpts from file “Newspaper Ads’’ ......
—Analysis of Victory Margins in Selected
IID iccinsnestsasdsnciitdapncabsreendsanantnnlatidadants
la
IN THE
United States Court of Appeals
For THE FIFTH CIRCUIT
No. 77-1583
Summary Calendar*
LeiLa G. Brown, et al.,
Plaintiffs-Appellees,
Cross-Appellants,
V.
JOHN L. Moore, et al.,
Defendants,
ROBERT R. WILLIAMS, et al.,
Defendants-Appellants,
Cross-Appellees.
APPEALS FROM THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF ALABAMA
(June 2, 1978)
Before GOLDBERG, AINSWORTH, and HILL, Circuit Judges.
PER CURIAM:
The Board of School Commissioners for the Public Schools
of Mobile, Alabama appeals from the district court’s determina-
tion that the election of school commissioners on an at-large
* Rule 18, 5 Cir. Isbell Enterprises, Inc. v. Citizens Casualty
Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I.
——— ae
2a
basis unconstitutionally dilutes the votes of black citizens of
Mobile. Appellants maintain that the court’s order creating five
single-member districts should be reversed. Plaintiffs cross
appeal from the district court’s decision to stagger the election
of board members rather than order new elections for all five
districts in 1978.
We have reviewed the district court’s findings and con-
clusions. Judge Pittman has applied the proper standards for
evaluating plaintiffs’ contention that the election of school
commissioners on an at-large basis dilutes the votes of black
citizens and has carefully and thoroughly analyzed the record in
light of these standards. On the basis of our own careful study
of the record, we are convinced that the district court’s findings
are not clearly erroneous and that these findings amply support
the conclusion that Mobile’s at-large election system uncon-
stitutionally depreciates the value of the black vote. See Bolden
v. City of Mobile, 571 F.2d 238 (Sth Cir. 1978). We further
conclude that the order framed by the court below was well
within the permissible scope of its equitable discretion. Accord-
ingly, the judgment below is in all respects affirmed. The
mandate shall issue forthwith.
AFFIRMED.
wd Nn he at te aaa
a athlete lien ia AN Re 808
3a
United States Cowt of Appeals
For THE FIFTH CIRCUIT
No. 77-1583
Summary Calendar
D.C. Docket No. CA-75-298-P
LEILA G. Brown, et al.,
Plaintiffs— Appellees,
Cross— Appellants,
versus
JOHN L. Moore, et al.,
Defendants,
ROBERT R. WILLIAMS, et al.,
Defendants— Appellants,
Cross— Appellees.
APPEALS FROM THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF ALABAMA
Before GOLDBERG, AINSWORTH and HILL, Circuit Judges.
JUDGMENT
This cause came on to be heard on the transcript of the
record from the United States District Court for the Southern
Distnct of Alabama, and was taken under submission by the
Court upon the record and bnefs on file, pursuant to Rule 18;
4a
On CONSIDERATION WHEREOF, It is now here ordered and
adjudged by this Court that the judgment of the said District
Court in this cause be, and the same is hereby, affirmed;
It is further ordered that defendants-appellants pay to
plainuffs-appellees, the costs on appeal to be taxed by the Clerk
of this Court.
June 2, 1978
ISSUED AS MANDATE: JUNE 2, 1978
ee eee
Sa
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEILA G. BROWN, MARY LOUISE
GRIFFIN, COOLEY, JOANNIE ALLEN
DUMAS, ELMER - JOE _ DAILY
EDWARDS, ROSIE LEE HARRIS,
HAZEL C. HILL, JEFF KIMBLE,
FRANCES J. KNIGHT, JOHN W.
LEGGETT, JANICE M. McAUTHOR,
Plaintiffs, CIVIL ACTION
v. No. 75-298-P
JOHN L. MOORE, individually and in his
official capacity as Probate Judge of Mo-
bile County; JOHN E. MANDEVILLE,
individually and in his official capacity as
Court Clerk of Mobile County, THOMAS
J. PURVIS, individually and in his official
capacity as Shenff of Mobile County,
HOWARD E. YEAGER, COY SMITH, G.
RAY HAAS, individually and in their offi-
cial capacity as Mobile County Commis-
sioners; ROBERT R. WILLIAMS, DAN
C. ALEXANDER, JR., NORMAN J.
BERGER, RUTH F. DRAGO, HOMER
L. SESSIONS, INDIVIDUALLY and in
their official capacity as School Commis-
sioners of Mobile County, Alabama,
Defendants.
OPINION AND ORDER AS TO THE BOARD
OF SCHOOL COMMISSIONERS OF MOBILE
COUNTY, ET AL.
This is an action brought by Leila G. Brown, and other
black plaintiffs representing all Mobile County, Alabama,
blacks as a class, claiming the present at-large system of
electing county commissioners and school commissioners
6a
abridges the rights of the County’s black citizens under the
First, Thirteenth, Fourteenth, and Fifteenth Amendments to
the Constitution of the United States; under the Civil Rights Act
of 1871, 42 U.S.C. Sec. 1983; and under the Voting Rights Act
of 1965, as amended, 42 U.S.C. Sec. 1973, et seq.
The defendants are the Board of Schoo] Commissioners of
Mobile County (Board or school commissioners), Robert R.
Wiliams, Dan C. Alexander, Jr., Norman J. Berger, Ruth F.
Drago, and Homer L. Sessions, the Mobile County Commis-
sioners, Howard E. Yeager, Coy Smith, G. Bay Haas, and the
Probate Judge, John L. Moore, the Court Clerk of Mobile
County, John E. Mandeville, and the Sheriff of Mobile County,
Thomas J. Purvis, and Mobile County, who are sued individ-
ually and in their official capacities.
For purposes of clarity, a separate opinion and order will
be rendered in this case against the school commissioners, et al.,
and the Mobile County Commissioners, et al.'
The plaintiffs contend that the at-large election system, in
the historical and present context of official and social racism in
Alabama and Mobile County, has for all practical purposes
denied black citizens equal access to participation in the
‘Many of the facts and most of the law in the Board of School
Commissioners and the County Commissioners are as applicable to
one defendant as to the other. There are some facts and points of law
which are different, particularly with reference to the law creating the
different offices and the unresponsiveness of each. Because of this,
separate opinions and orders will be rendered. A similar lawsuit
against the Mobile City Commissioners, Civil Action No. 75-297-P,
Wiley L. Bolden, et al. v. City of Mobile, et al., was tried within weeks
of this case. All three cases have been under consideration simulta-
neously. Many of the facts, and much of the law, in the City case and
County cases are the same. Where the applicable Findings of Fact
and Conclusions of Law in the two cases and with reference to the
respective defendants, are substantially the same, it will be set out at
length rather than referring to one or other of the three opinions and
orders.
7a
countywide election of School Commissioners of Mobile Coun-
ty and has substantially diluted their vote.?
This court has jurisdiction over the claims grounded on 42
U.S.C. Sec. 1983 against the Board and over the claims
grounded on 42 U.S.C. Sec. 1973 and under 28 U.S.C. Secs.
1343(3)-(4) and 2201.
This cause was certified as a class action under Rule
23(b)(2) F.R.C.P., the plaintiff class being all black persons
who are now citizens of Mobile County, Alabama.
A claim originally asserted under 42 U.S.C. Sec. 1985(3)
was dismissed for failure to state a claim upon which relief can
be granted.
The defendants under consideration in this portion of the
case are the five school commissioners, the Probate Judge, the
Court Clerk of the County, the Sheriff, and Mobile County.
The plaintiffs seek a preliminary and permanent injunction
enjoining all defendants and others acting at their direction or
in concert with them, of holding, supervising, or certifying the
results of any election for the Board under the present at-large
election system and ordering the reapportionment of the Board
into racially non-discniminatory single-member districts, togeth-
er with attorneys’ fees and costs. (See preliminary pretnal
response filed July 30, 1976.)
Plaintiffs claim that to prevail they must prove to this
court’s satisfaction the existence of the elements probative of
voter dilution as set forth by White v. Regester, 412 U.S. 755,
93 S. Ct. 2332, 37 L.Ed.2d 314 (1973), and Zimmer v.
McKeithen, 485 F.2d 1297 (Sth Cir. 1973) (en banc), aff'd sub
nom East Carroll Parish School Board vy. Marshall,
U.S. , 96 S. Ct. 1083, 47 L.Ed.2d 296 (1976), con-
tending Zimmer is only the adoption of specified criteria by the
Fifth Circuit of the White dilution requirements.
2 The plaintiffs also contended in its complaint that the present
system of electing the school commissioners “discriminates against the
rural interests in the county by submerging their local strength in the
countywide urban majority.” Plaintiffs did not pursue this aspect of
the complaint either in the offering of evidence or final arguments.
The court treats this ground as abandoned.
8a
The Board defendants stoutly contest the claim of uncon-
stitutionality of the Board as measured by White and Zimmer.
They claim the plaintiffs have no constitutional nght to a
politically safe black district and that the mere showing of
adverse impact on the plaintiffs’ political fortunes will not
warrant the relief requested as measured by White and Zim-
mer.
They further contend that Washington v. Davis, US.
, 96S. Ct. 2040, 48 L.Ed.2d 597 (1976), erects a barrier since
the legislative act forming the multi-member, at-large election
of the Board members was without racial intent or purpose.
They assert Washington, 96 S. Ct. at 2047-49, which was an
action alleging due process and equal protection violations,
held that in these constitutional actions, in order to obtain relief,
proof of intent or purpose to discriminate by the defendants
must be shown. Defendants state, therefore, that since the
statute under which the Board members are elected was passed
when essentially all blacks were disenfranchised, there could be
no intent or purpose to discriminate at the time the statute or
the Constitution was adopted. Alternatively, however, defend-
ants contend that if Washington does not preclude consid-
eration of the dilution factors of White and Zimmer, they
should still prevail because plaintiffs have not sustained their
burden of proof under these and subsequent cases.
Plaintiffs’ reply is to the effect that Washington did not
establish any new constitutional purpose principle and that
White and Zimmer still are applicable. If, however, this court
finds Washington to require a showing of racial motivation at
the time of passage of the 1919 or later statutes, plaintiffs
contend they should still prevail, claiming the at-large election
system was designed and is utilized with the motive or purpose
of diluting the black vote. Plaintiffs claim that the dis-
cfiminatory intent can be shown under the traditional tort
standard.
The defendants further contend that the plaintiffs are not
entitled to relief because they do not come before the court with
clean hands because the plaintiffs thwarted the efforts of the
9a
Board to procure passage by the State Legislature of a con-
stitutionally sound statute providing for single-member districts.
FINDINGS OF FACT
Mobile County, Alabama, is located in the southwestern
part of the State bordered on the south by the Gulf of Mexico,
on the west by the State of Mississippi, and a large portion of
the county to the east by Mobile Bay. In 1970, the county’s
population was 317,308 with approximately 32.5% of the
residents non-white. (Defendants’ Exhibit No. 6, p. 1.)
A 1976 estimate placed the county’s population at 337,200
with approximately 32.5% of the population non-white.
( Defendants’ Exhibit No. 6, p. 1.) Practically all county non-
whites are black. The 1970 population of the City of Mobile
was 190,026 with approximately 35.4% of the residents black.
The 1970 voter age population, 18 years of age and older,
was 64.8% for whites and 55.2% for blacks. (Defendants’
Exhibit No. 6, p. 18.) An estimate of the black vote as
percentage of the total vote in the 1976 primary elections was
24.4% black of the total vote cast. ( Defendants’ Exhibit No. 6,
p. 24).
Almost two-thirds of the county’s population resides in the
City of Mobile and a large portion of the other blacks in the
county resid_ in the adjoining municipality of Prichard. Of the
103,238 non-whites in the county, 88,890 live in Mobile and
Prichard. Only 12,718 non-whites live outside the incorporated
municipalities. (Defendants’ Exhibit 6, p. 5). It is obvious that
the evidence relating to the City of Mobile elections, and other
3 The court takes judicial knowledge of its records. A companion
case, Bolden, et al. v. City of Mobile, Civil Action No. 75-297-P, under
consideration by the court at the same time this case was under
consideration, Defendants’ Exhibit No. 12, cited these figures accord-
ing to the 1970 Federal Census.
10a
evidence relating to voter dilution in the City of Mobile, are
relevant in this case.
The Mobile County School System is unique in the State of
Alabama. The first public school system in the State of
Alabama was organized as the Mobile County System.‘
The Constitution of 1901 preserved the integrity of this
system.5
Most of the school systems in the rest of the State have
both city and county school systems in the various counties.
The plaintiffs contend that the five member at-large
scheme was the result of Act No. 498 passed on September 21,
1939, construed together with Title 52, Sec. 62, et seg., Code of
Alabama (1958) (1939, etc. Acts), which is derived from the
1927 school code. The defendants contend that these are
legislative acts of general application and have no applicability
to the Mobile County Public School System by virtue of the
provisions of Sec. 270 of the Constitution of Alabama of 1901
as interpreted by the Alabama Supreme Court in case law. The
defendants contend the present existence of the school system
and of the school board is provided by a /ocal legislative act
passed in 1919, Local Acts 1919, p. 73. In any event, there are
five commissioners who run on a place-type ballot and are
4See Board of School Commissioners v. Hahn, 246 Ala. 662, 22
So. 2d 91, 92, 93, for a discussion of the history and continuance of the
school system in Mobile and Alabama.
5 Article XIV, Section 270 of the Constitution of 1901:
“The provisions of this article and of any act of the legislature
passed in pursuance thereof to establish, organize, and maintain
a system of public schools throughout the state, shall apply to
Mobile County only so far as to authorize and require the
authorities designated by law to draw the portions of the funds to
which said county shall be entitled for school purposes and to
make reports to the superintendent of education as may be
prescribed by law; and all special incomes and powers of
taxation as now authorized by law for the benefit of public
schools in said county shall remain undisturbed until otherwise
provided by the legislature; provided, that separate schools for
each race sha!! always be maintained by said school authonities.”
lla
elected by an at-large vote of the county. There is no
requirement that each commissioner reside in a particular part
of the county. The commissioners are elected on a staggered
basis every two years for a six year term. The defendants
Probate Judge, Circuit Clerk of Mobile County, and Sheriff, or
persons appointed in their stead, by the Register in equity serve
as the appointing board for election officials (Title 17, Secs.
120-26, Code of Alabama (1958) and as the Board of Election
supervisors to certify election results. Id. Secs. 139, 139(1),
199, 209, 344).
In Zimmer, aff'd. sub nom. East Carroll Parish School
Board, (**... but without approval of the constitutional views
expressed by the court of appeals.”), the Fifth Circuit synthe-
sized the White opinion with the Supreme Court’s earlier
Whitcomb v. Chavis, 403 U.S. 124, 91 S. Ct. 1858, 29 L.Ed.2d
363 (1971) decision, together with its own opinion in Lips-
combe v. Jonsson, 459 F.2d 335 (Sth Cir. 1972) and set out
certain factors to the considered.
Based on these factors as set out in Zimmer, 485 F.2d at
1305, the court makes the following findings with reference to
each of the pnmary and enhancing factors:
LACK OF OPENNESS IN THE SLATING
PROCESS OR CANDIDATE SELECTION
PROCESS TO BLACKS.
Mobile County blacks were subjected to massive official
and private racial] discrimination until the Voting Rights Act of
1965.6 It has only been since that time that significant dimuni-
tion of these discriminatory practices has been made. The overt
forms of many of the nghts now exercised by all Mobile County
citizens were secured through national legislation, federal court
orders, and a moral commitment of many dedicated white and
§In the companion case, Bolden v. City of Mobile, the evidence
was uncontradicted that in 1946 there were only approximately 255
black registered voters out of more than 19,000 registered voters.
12a
black citizens plus the power generated by the restoration of the
right to vote which substantially increased the voting power of
the blacks. Public facilities are open to all persons. The
pervasive effects of past discrimination still substantially affect
political black participation.
There are no formal prohibitions against blacks seeking
office in Mobile County.” Since the Voting Rights Act of 1965,
blacks register and vote without hindrance. The election of the
school commissioners is partisan and black and whites partici-
pate in both parties. However, the court has a duty to look
deeper rather than rely on surface appearance to determine if
there is true openness in the process and determine whether the
processes “leading to nomination and election [are]... equally
open to participation by the group in question... .” White, 412
U.S. at 766. One indication that local political processes are not
equally open is the fact that no black person has ever been
elected to the at-large school board. This is true although the
black population level is almost one-third.
In the 1960’s and 1970’s, there has been general polariza-
tion in the white and black voting. The polarization has
occurred with white voting for white and black for black if a
white is opposed to a black, or if the race is between two white
candidates and one candidate is identified with a favorable vote
in the black wards, or identified with sponsoring particularized
black needs. When this occurs, a white backlash occurs which
usually results in the defeat of the black candidate or the white
candidate identified with the blacks.
Since 1962, four black candidates have sought election in
the at-large county school board election. Dr. Goode in 1962,
Dr. Russell in 1966, Ms. Jacobs in 1970, and Ms. Gill in 1974.
’ The qualifying fee for candidates for the city commission was
found unconsututional in Thomas v. Mims, 317 F. Supp. 179 (S.D.
Ala. 1970). See also U.S. v. State of Ala., 252 F. Supp. 95 (M.D. Ala.
1966) (three judge district court panel) (poll tax declared uncon-
stitutional ).
l3a
All of these black candidates were well educated and highly
respected members of the black community. They all received
good support from the black voters and virtually no support
from whites. They all lost to white opponents in run-off
elections.
Three black candidates entered the race of the Mobile City
Commission in 1973. Ollie Lee Taylor, Alfonso Smith, and
Lula Albert. They received modest support from the black
community and virtually no support from the white community.
They were young, inexperienced, and mounted extremely limit-
ed campaigns.
Two black candidates sought election to the Alabama State
Legislature in an at-large election in 1969. They were Clarence
Montgomery and T. C. Bell. Both were well supported from
the black community and both lost to white opponents.
Following a three-judge federal court order in 19728 in
which single-member districts were established and the house
and senate seats reapportioned, one senatorial district in Mobile
County had an almost equal division between the black and
white population. A black and white were in the run-off. The
white won by 300 votes. There were no overt acts of racism.
Both candidates testified and asserted each appealed to both
races. It is interesting to note that the white winner published a
simulated newspaper with both candidate’s photographs
appearing on the front page, one under the other, one white,
one black.
One city commissioner, Joseph N. Langan, who served
from 1953 to 1969, had been elected and reelected with black
support until the 1965 Voting Rights Act enfranchised large
numbers of blacks. His reelection campaign in 1969 foundered
mainly because of the fact of the backlash from the black
support and his identification with attempting to meet the
particularized needs of the black people of the city. He was
8 Sims v. Amos, 336 F. Supp. 924 (M.D. Ala. 1972).
l4a
again defeated in an at-large county commission race in 1972.
Again the backlash because of the black support substantially
contributed to his defeat.
In 1969, a black got in a run-off against a white in an at-
large legislature race. There was an agreement between various
white prospective candidates not to run or place an opponent
against the white in the run-off so as not to splinter the white
vote. The white won and the black lost.
Practically all active candidates for public office testified it
is highly unlikely that anytime in the foreseeable future, under
the at-large system, that a black can be elected against a white.
Most of them agreed that racial polarization was the basic
reason. The plaintifis introduced statistical analyses known as
“regression analysis” which supported this view. Regression
analysis is a professionally accepted method of analyzing data
to determine the extent of correlation between dependent and
independent variables. In plaintiffs’ analyses, the dependent
variable was the vote received by the candidates studied. Race
and income were the independent variables whose influence on
the vote received was measured by the regression. There is
little doubt that race has a strong correlation with the vote
received by a candidate. These analyses covered every city
commission race in 1965, 1969, and 1973, both primary and
general election of county commission in 1968 and 1972, and
selected school board races in 1962, 1966, 1970, 1972, and
1974. They also covered referendums held to change the form
of city government in 1963 and 1973 and a countywide
legislative race in 1969. The votes for and against white
candidates such as Joe Langan in an at-large city commission
race, and Gerre Koffler, at-large county school board commis-
sion, who were openly associated with black community inter-
ests, showed some of the highest racial polarization of any
elections.
Since the 1972 creation of single-member districts, three
blacks of the present fourteen member Mobile County delega-
tion have been elected. Their districts are more heavily
populated with blacks than whites.
lSa
Prichard, an adjoining municipality to Mobile, which in
recent years has obtained a black majority population, elected
the first black mayor and first black councilman in 1972.
Black candidates at this time can only have a reasonable
chance of being elected where they have a majority or a near
majority. There is no reasonzble expectation that a black
candidate could be elected in a citywide election race because
of race polarization. The court concludes that an at-large
system is an effective barrier to blacks seeking public life. This
fact is shown by the removal of such a barrier, i.e., the
disestablishment of the multi-member at-large elections for the
state legislature. New single member districts were created
with racial compositions that offer blacks a chance of being
elected, and they are being elected.
The court finds that the structure of the at-large election of
school commissioners combined with strong racial polarization
of the county’s electorate continues to effectively discourage
qualified black citizens from seeking office or being elected
thereby denying blacks equal access to the slating or candidate
selection process.
UNRESPONSIVENESS OF THE ELECTED SCHOOL
COMMISSIONERS OF MOBILE COUNTY TO THE
BLACK MINORITY.
’ The at-large elected county board members have not been
responsive to the minonities’ needs, who constitute 32.5% of the
total population.
The Mobile County School System maintained a dual
school system which prolonged segregation until sometime after
Davis v. Board of School Commissioners of Mobile County, Civil
Action No. 3003-63-H, was commenced in this court in 1963.
The lengthy record in Davis, supra, is devastating evidence of
the complete unresponsiveness and resistance on the part of the
16a
Board to the particularized needs and aspirations of the black
community.
This record (the docket sheet itself comprises some 27
pages. See Plaintiffs’ Exhibit No. 99.) is replete with dilatory
actions by the Board attempting to forestall the implementation
of a desegregated school system. Another judge of this court
was put in a position of having to compel the school Board to
desegregate the school system against the Board’s adamant
refusal to respond voluntarily to black community interests and
the prevailing law of the land. The record shows that on
numerous occasions the court, faced with the complete failure
of the Board to cooperate, had the unpleasant task of forcing
the Board to carry out its lawful directives.
The Board usually acted only in response to numerous
restraining and injunctive orders by the court. This occurred
over a period of time covering more than a decade of litigation.
The restraining orders were all of the same import, to wit, that
the School Board follow the law as required by the Con-
stitution.
“The defendant, Board of School Commissioners of Mobile
County and the other individual defendants . .. , be and they are
hereby restrained and enjoined from requiring and permitting
segregation of the races in any school under their supervision
from and after such time as may be necessary to make arrange-
ments for admission of children to such school on a racially non-
discriminatory basis with all deliberate speed, as required by the
Supreme Court in Brown v. Board of Education of Topeka, 1954,
349 U.S. 294, 75S. Ct. 753, 99 L.Ed. 1083.” (Emphasis added. )9
“It is ORDERED, ADJUDGED and DECREED that the
defendants, their agents, officers, employees and successors and
all those in active concert and participation with them, be and
they are permanently enjoined from discriminating on the basis
9 Order of July 11, 1963, M.E. No. 15,289.
17a
of race or color in the operation of the school system.
*** (T]hey shall take affirmative action to disestablish all school
segration and to eliminate the effects of the dual school system.”
(Emphasis added. )'°
The utter frustration of the court over the repeated failure
of the School Board to make a good faith effort to carry out its
duties as to all of the students in the system was well articulated
in an order of August 1, 1969 (M.E. No. 25,826), wherein the
court stated:
“With eight years of litigation entailing countless days and weeks
of hearings in court, it has been clearly established that the
Mobile County School System must forthwith be operated in
accordance with the law of the land. What this school system
needs is to educate children legally, and not engage in protracted
litigation. After all, the children are the ones in whom we should
be most interested.”
(Emphasis added. )
On March 16, 1970, this same judge, faced with the failure
of the Board to carry out certain orders of this court entered
pursuant to directives of the Fifth Circuit following rulings of
the Supreme Court of the United States, entered an order which
State In pertinent part:
“The School Board is required to follow the order of this court of
January 31, 1970, as amended and if the same is not followed
within three days from this date, a fine of $1,000 per day is
hereby assessed for each such day, against each member of the
Board of School Commissioners.”'' (Emphasis added. )
10 Order of April 7, 1969, M.E. No. 25,342. See also:
1. M.E. No. 15,555, dated 9/9/63
2. M.E. No. 25,274, dated 3/27/69
3. M.E. No. 26,553, dated 1/28/70
4. ME. No. 27,705, dated 9/14/70
11M.E. No. 26,771, dated 3/16/70.
18a
The Fifth Circuit has, in its numerous orders and opin-
ions,’2 noted with displeasure, the total lack of cooperation
exhibited by the Board. In Davis I] (see n. 12, supra), it was
stated:
“Although it seems to be acknowledged on all hands that a
racially segregated system is still maintained, the Defendants’
legal position*** is that Plaintiffs have not set forth a claim
enutling them to relief. So far as this record shows, the
Defendant school authorities have not to this day ever acknowl-
edged that (a) the present system is constitutionally invalid or
(b) that there is any obligation on their part to make any
changes at any time.” 322F.2d at p. 358. (Emphasis added. )
In Davis IV (see n. 12, supra), the court said:
‘*\.. [I]t must also be borne in mind that this school board
ignored for nine years the requirement clearly stated in Brown
that the School authorities have the primary responsibility for
12
1. Davis v. Bd. of School Comm. of Mobile County,
318 F.2d 63 (1963)
I]. Davis, 322 F.2d 356 (1963), cert. den. 375 U.S. 894,
84S. Ct. 170, 11 L.Ed.2d 123; reh. den. 376 U.S. 928,
84S. Ct. 656, 11 L.Ed.2d 628.
Ill. Davis, 333 F.2d 53 (1964), cert. den. 379 U.S. 844,
85S. Ct. 85, 13 L.Ed.2d 49.
IV. Davis, 364 F.2d 896 (1966)
V. Davis, 393 F.2d 690 (1968)
VI. Davis, 414 F.2d 609 (1969)
VII. Singleton v. Jackson Municipal Separate School
Distrct., 419 F.2d 1211 (1969)
VII. Davis, 422 F.2d 1139 (1970)
IX. Davis, 430 F.2d 883 (1970); on remand 430 F.2d
889; aff. in part, rev. in part, 402 U.S. 33, 91 S. Ct.
1289, 28 L.Ed.2d 577
X. Davis, 483 F.2d 1017 (1973)
National Education Ass. v. Board of School Comm. of
Mobile County, 483 F.2d 1022 (1973)
Davis, 496 F.2d 1181 (1974)
Davis, 517 F.2d 1044 (1975)
Davis, 526 F.2d 865 (1976)
~~
a el nt as ae gua i a an ee Ne eee eee es oe SE wer er
19a
solving this constitutional problem.” 364 F.2d at 898, n. 1.
(Emphasis added. )
In Davis V (see n. 12, supra), the Fifth Circuit stated,
through Judge Thornberry:
“In the last Mobile case, Judge Tuttle said there must ‘be an end
fo the present policy of hiring and assigning teachers according
to race by the time the last of the schools are fully desegregated
for the school year 1967-68.’ 364 F.2d at 904.... [DJespite the
court’s decree, it seems apparent that the policy of hiring and
assigning teachers according to race still exists.*** The reason for
the lack of progress is that the board has not yet shouldered the
burden.” 393 F.2d at 695. (Emphasis added.)
Further evidence is contained in Davis IX (see n. 12,
supra), where, on page 886, it is stated:
“The Mobile County School System has almost totally failed to
comply with the faculty ratio requirement although ordered to do
so by the district court on August 1, 1969.” (Emphasis added. )
Further, it was pointed out in note 4 thereof, in discussing
desegregation plans:
*.. but the defendants, the only parties in possession
of current and accurate information, have offered no
help. This lack of cooperation and generally
unsatisfactory condition created by defendants, should
be terminated at once by the district court.” 430 F.2d
at p. 888. (Emphasis added. )
There are, to date, many unresolved controversies remai-
ning in Davis. There is no doubt that with a more cooperative
School Board making a more responsive effort to conform to
the law, the process of implementing a constitutionally accept-
able unitary school system would have been accomplished
faster and without the divisiveness, and lengthy and expensive
litigation already experienced.
Today, thirteen years after the filing of the Davis case,
the Board is operating under “A Comprehensive Plan for a
Unitary School System” order of this court issued pursuant to a
mandate of the Supreme Court of the United States and of the
20a
Fifth Circuit Court of Appeals. Under these circumstances, the
defendants can justly claim little credit for this alleged responsi-
veness today to black needs.
THERE IS NO TENUOUS STATE POLICY
SHOWING A PREFERENCE FOR AT-LARGE
DISTRICTS.
There is no clear cut State policy either for or against
multi-member districting or at-large elections in the State of
Alabama, considered as a whole. The lack of State policy
therefore must be considered as a neutral factor.
In considering the State policy with specific reference to
Mobile, the Mobile County School System was established in
1826, the first provision for a “public” school system in the
State.13 The commissioners were to be elected at-large. In
1854, the first general public school system for the State of
Alabama was enacted.'4 Section 2 of Article VI of that Act
recognized and maintained the Mobile County School System
separate and apart from the school system for the State. This
was incorporated in the Constitution of 1875 and the Con-
stitution of 1901, Sec. 270 of Article XIV. The at-large election
of the Mobile County School Commissioners has continued to
the present time. The manifest policy of Mobile County has
been to have at-large or multi-member districting.
PAST RACIAL DISCRIMINATION.
Prior to the Voting Rights Act of 1965, there was effective
discrimination which precluded effective participation of blacks
in the elective system in the State, including Mobile County.
One of the pnmary purposes of the 1901 Constitutional
Convention of the State of Alabama was to disenfranchise the
blacks. The Convention was singularly successful in this
'3 Acts of Alabama, 1825-26, p. 35. This Act provided for not
less than thirteen nor more than twenty-five commissioners.
4 Acts of Alabama, 1853-54, p. 8.
2la
objective. The history of discrimination against blacks’ partici-
pation, such as the cumulative poll tax, the restrictions and
impediments to blacks registering to vote, is well established.
Local discrimination in the city and the county has been
established in connection with the lawsuits concerning racial
discrimination arising in this court, to wit, Allen v. City of
Mobile, 331 F. Supp. 1134, (S/D Ala. 1971, aff'd. 466 F.2d 122
(Sth Cir. 1972), cert. den. 412 U.S. 909 (1973); Anderson v.
Mobile County Commission, Civil Action No. 7388-72-H (S/D
Ala. 1973); Sawyer v. City of Mobile, 208 F. Supp. 548 (S/D
Ala. 1961); Evans v. Mobile City Lines, Inc., Civil Action No.
2193-63 (S/D Ala. 1963); and Cook v. City of Mobile, Civil
Action No. 2634-63 (S/D Ala.). Preston v. Mandeville, 479
F.2d 127 (Sth Cir. 1973), was a countywide case involving
racial discrimination of Mobile’s jury selection practices. Smith
v. Allwright, 321 U.S. 649, 64S. Ct. 757, 88 L.Ed. 987 (1944)
(white primanes) was applicable to Alabama and some Ala-
bama cases of discrimination are Davis v. Schnell, 81 F. Supp.
872 (S/D Ala. 1949), affd. 336 U.S. 933, 69 S. Ct. 749, 93
L.Ed. 1093 (1949), (“interpretation” tests for voter registra-
tion), Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, §
L.Ed.2d 110 (1960) (racial gerrymandering of local govern-
ment), Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12
L.Ed.2d 506 (1964) (racial gerrymandering of state govern-
ment), and U.S. v. Alabama, 252 F. Supp. 95 (M/D Ala.
1966) (Alabama poll tax).
The racial polarization existing in the city and county
elections has been discussed herein. The court finds that the
existence of past discrimination has helped preclude the effec-
tive participation of blacks in the election system today in the
at-large system of electing school commissioners.
In the 1950’s and early sixties, prior to the Voting Rights
Act of 1965, only a relatively small percentage of blacks were
registered to vote in the county.'5 Since the Voting Rights Act,
the blacks have been able to register to vote and become
candidates.
S$In the 1950’s and 1960’s, the impediments placed in the
registration of the blacks to vote were not as aggravated in Mobile
County as in some counties. It was not necessary for voter registrars
(footnote continued)
22a
ENHANCING FACTORS.
With reference to the enhancing factors, the court finds as
follows:
(1) The countywide election encompasses a large
district. Mobile County has an area of 1,240 square miles
with a population of 317,308 in 1970 and an estimated
population of 337,200 in 1976.
(2) There is a majority vote requirement for the
school commissioners in the primaries.
(3) There is no anti-single shot voting provision but
the candiates run for positions by place or number.‘
(4) There is a lack of provision for the at-large
candidates to run from a particular geographical sub-
district, as well as a lack of residence requirement.
The court concludes that in the aggregate, the at-large
election structure as it operates in the countywide election of the
school commissioners of Mobile County substantially dilutes
the black vote in these elections.
CONCLUSIONS OF LAW
I.
The court addresses itself first to the contention of the
defendants that the plaintiffs are not entitled to relief because
they do not come before the court with clean hands because
they thwarted the efforts of the school commissioners to procure
(footnote continued)
to be sent to Mobile to enable blacks to register. However, as
previously noted, in 1946 only 255 blacks out of over 19,000 voters
were registered.
‘6 The influence of this enchancing factor is minimal. It is this
wniter’s opinion, born out of 15 years experience in a State judicial
office subject to the electoral process, that the public’s best interest is
served, and it can make more intelligent choices, when candidates run
for numbered positions. The choices between candidates are nar-
rowed for the voter and they can be compared head to head.
23a
passage by the State Legislature of a constitutionally sound
Statute pending in the 1976 legislature providing for
reapportionment of the Board into five single-member districts.
These defendants further contend that the Legislature has
demonstrated a willingness to pass a constitutionally sound
Statute providing for reapportionment of the school board into
five single-member districts and that this function should be left
to the Legislature.
The complaint in this cause was filed in June of 1975. The
State Legislature in the summer months of 1975 passed a local
act reapportioning the Board membership into five single-
member districts which these defendants claim they supported.
The Board members were dismissed as parties defendant.
Shortly thereafter, these defendants sought a declaratory judg-
ment in the State court as to whether or not the local act was
constitutional. The State court declared the act was fatally
defective because of the manner in which the act was pub-
lished. 17
On March 8, 1976, the plaintiffs sought and received leave
to add the Board members as parties defendant by an amended
complaint. These defendants were served March 19, 1976.
17 Article IV, Sec. 106 of the Constitution of 1901:
“Sec. 106. No special, private, or local law shall be passed
on any subject not enumerated in section 104 of this
Constitution, except in reference to fixing the time of holding
courts, unless notice of the intention to apply therefor shall
have been published, without cost to the staie, in the county
or counties where the matter or thing to be affected may be
situated, which notice shall state the substance of the
proposed law and be published at least once a week for four
consecutive weeks in some newspaper published in such
county or counties, or if there is no newspaper published
therein, then by posting the said notice for four consecutive
weeks at five different places in the county or counties prior
to the introduction of the bill; and proof by affidavit that said
notice has been given shall be exhibited to each house of the
legislature, and said proof spread upon the journal. The
courts shall pronounce void every special, private, or local
law which the journals do not affirmatively show was passed
in accordance with the provisions of this section.”
24a
They failed to plead. On July 12, the plaintiffs filed a motion
for a default judgment. On that date, the Board members filed
an answer and responded to the motion for default judgment.
The case was set for trial July 19, 1976. It was continued at the
request of these defendants.‘® The case was reset for trial
September 9, 1976. On September 2, 1976, these defendants
filed a motion to sever and to dismiss or continue.'19 On
September 9, 1976, these defendants filed a motion to stay
pending certification for interlocutory appeal and a motion to
Stay pending appeal, all of which were denied. Beginning with
these defendants’ response to motion for default judgment and
in connection with other motions herein mentioned, these
Board members have contended they were making a good faith
effort to get a constitutionally sound legislative enactment passed
in the 1976 Legislature but the plaintiffs blocked passage of the
bill. They sought a continuance until the legislature meets
again in 1977 to give that legislature an opportunity to pass a
constitutionally sound bill dividing the school board into five
single-member districts. Although the language varied in
motion to motion and document to document, the thrust of each
motion was that single-member districts could be provided for
by the legislature. The September 2 motion to sever and
dismiss and continue by these defendants used this language:
“Despite the efforts of these defendants, the bill was not passed
into law but was blocked by the negative votes of three members
of the Mobile County legislative delegation.”
all of whom were black and within the plaintiff class. On the
last page of the motion, this language was used:
“And the Board of School Commissioners of Mobile County can
be reapportioned into five single member districts meeting all
consitutional standards by the normal legislative process... .”
(Emphasis added. )
The same, or substantially the same language was used in the
September 9 motion for a stay pending appeal. In a proposed
Findings of Fact and Conclusions of Law prepared by these
defendants in pursuance of this court’s pretrial order, on the last
two pages this language was used:
18 See “Appendix A.”
19 See n. 18, supra, “Appendix A.”
es
25a
“The Legislature of the State of Alabama has demonstrated its
willingness, without intervention by this court, to provide a
constitutionally sound system of governance for the Mobile
County Public School System. ...”
and
“... plainuffs have on at least one occasion blocked the good
faith efforts to the defendant School Board to procure passage by
the State Legislature of a constitutionally sound statute providing
for reapportionment of the Schoo! Board into five single-member
districts.” (Emphasis added. )
In a tnal memorandum of these defendants, page 26, it
was Stated:
“.. it is entirely clear that the legislative remedy is available.”
This brief was filed September 2.
The evidence before the court indicated that the black
legislators from this county became concerned with whether or
not the proposed act pending in the 1976 legislature would be
constitutionally sound. During closing arguments in this cause,
the provisions of the 1901 Constitution, Sec. 27020 were dis-
cussed. The court directed an inquiry to counsel for these
defendants whether or not it was his contention and belief that
the at-large system could be constitutionally changed by the bill
pending in the 1976 legislature. He answered no because the
bill was a general bill, citing Alabama Supreme Court author-
ities, which he contended supported his position. This was the
first notice the court had that the legal position of counsel for
these defendants was that the single-member district bill as
drafted and presented to the 1976 legislature could not be
constitutionally enacted. In the post-trial memorandum filed by
these defendants September 29, 1976, p. 4, it was stated:
*“.. and general Acts of the Legislature relating to school
matters have no applicability to the Mobile County Public
School system by virtue of the provisions of §270 of the
Constitution of Alabama of 1901.” (Emphasis added. )
20 See n. 5, supra.
26a
These defendants had persistently contended the 1976 bill
was the same as the 1975 Act. It was not. According to these
defendants now, there is a vital difference. The 1975 Act was a
local act, the proposed 1976 Act was a general act. These
developments explode these defendants’ contention that the
plaintiffs do not come into court with clean hands. Clearly,
these defendants were trying to place the shoe on the wrong
foot. The court takes judicial notice of the lack of cooperation
and dilatory practices of the School Board in the past in the
Birdie Mae Davis case.
Il.
There is a threshold question faced by this court in whether
or not Washington v. Davis, U.S. , 96 S. Ct. 2040, 48
L.Ed.2d 597 (1976), is dispositive of this case so as to preclude
an application of the factors determinative of voter dilution as
set forth in White and Zimmer, aff'd. sub nom. East Carroll
Parish School Board.
It is the defendants’ contention that Washington makes it
clear that to prevail the plaintiffs must prove that the statute
establishing the at-large election was adopted with a dis-
criminatory purpose. They assert that the present existence of
the five member Board and their at-large election on a stag-
gered basis every two years is provided for by a local Act
enacted in 1919, and at that time the blacks were dis-
enfranchised. If the court accepted the plaintiffs’ contention
that the 1939, etc. Acts, general acts, are the statutes the Board
is Operating under, it would make no difference because the
blacks were effectively disenfranchised at the time of those
enactments. Therefore, this court need not determine the
Alabama constitutional question, to wit, does it take a Jocal act
Or a constitutional amendment to change the present make-up
of the Board and the manner by which they are elected. It is
reasoned in either event that the at-large system of electing
schoo] commissioners when adopted had no relation to min-
imizing or diluting the black vote because there was none.
The plaintiffs contend that Washington did not establish a
new Supreme Court purpose test.
27a
The thrust of the defendants’ argument is that if the 1919
statute (or by implication, the 1939, etc. Acts) creating the
present Board and their election at-large was neutral on its face
Washington does not permit this court to consider other evi-
dence or factors and must decide for the school commissioners.
It is argued that Washington is a benchmark decision requiring
this finding in the multi-member at-large schoo] commissioners’
election.
The school commissioners contend the board membership
and at-large election was provided for by either of these statutes
enacted during a period of time when the blacks were substan-
tially disenfranchised in the State of Alabama. One of the
primary purposes of the 1901 Constitutional Convention was to
disenfranchise the blacks.?'
The court, therefore, will proceed to examine Washington
on the proposition that the present school board membership
and at-large election was provided for by either the 1919 or
1939, etc. Acts of the Legislatures.
Washington upheld the validity of a written personnel test
administered to prospective recruits by the District of Columbia
Police Department. It had been alleged the test “excluded a
disportionately high number of Negro applicants.” Jd. at 2044.
The petitioners claimed the effect of this disportionate exclusion
violated their Fifth Amendment due process nghts and 42
U.S.C. § 1981. Id. at 2044. Evidence indicated that four times
as many blacks failed to pass the test as whites. Plaintiffs
contended the impact in and of itself was sufficient to justify
relief. They made no claim of an intent to discriminate. The
District Court found no intentional conduct and refused relief.
21 The history of Alabama indicates that there was a populist
movement at that time which sought to align the blacks and the poor
whites. The Bourbon interest of the State sought to disenfranchise the
poor whites, along with the blacks, but were unsuccessful, excepting
the cumulative feature of the poll tax. They were singularly successful
disenfranchising the blacks. The 1901 Constitution had this provision
about the Mobile School system: “... provided, that separate schools
for each race shall always be maintained by said school authonutes.”
N. 5, supra.
28a
The Circuit Court reversed, relying upon Griggs v. Duke Power
Co., 401 U.S. 424, 91 S. Ct. 849, 28 L.Ed.2d 158 (1971).
Griggs was a Title VII action (42 U.S.C. § 2000e, ef seg.) in
which the racially discriminatory impact of employment tests
resulted in their invalidation by the court.
The Supreme Court in Washington reconciled its decision
with several previous holdings, distinguished some, and
expressly overruled some cases in which there were possible
conclusions different from Washington.
They made no reference to the recent pre- Washington cases
of its or appellate courts’ voting dilution decisions dealing with
at-large or multi-member versus single-member districts, and,
in particular, no mention was made of the cardinal case in this
area, White v. Regester, 412 U.S. 755, 93 S. Ct. 2332, 37
L.Ed.2d 314, (1973) nor to Dallas v. Reese, 421 U.S. 477, 95S.
Ct. 1706, 44 L.Ed.2d 312, (1975), and Chapman v. Meier, 420
U.S. 1, 95 S. Ct. 751, 42 L.Ed.2d 766 (1975), nor to Zimmer,
which the Court had affirmed only a few months before, nor to
Turner v. McKeithen, 490 F.2d 191 (Sth Cir. 1975). No
reference was made to Fortson v. Dorsey, 379 U.S. 433, 85 S.
Ct. 498, 13 L.Ed.2d 401 (1965), to Reynolds, nor to Whitcomb.
Whitcomb, 403 U.S. at 143, recognized that in an at-large
election scheme, a showing that if in a particular case the
system operates to minimize or cancel out the voting strength of
racial or political elements, the courts can alter the structure.
Had the Supreme Court intended the Washington case to have
the far reaching consequences contended by defendants, it
seems to this court reasonable to conclude that they would have
made such an expression.
There are several reasons which may be plausibly
advanced as to why the Washington Court did not expressly
overrule nor discuss these cases. Courts are not prone to
attempt to decide every eventuality of a case being decided or
its effect on all previous cases. The Court may have desired that
there be further development of the case law in the district and
circuit courts before commenting on the application of
Washington to this line of cases. The cases may be dis-
29a
tinguishable and reconcilable with the expressions in Washing-
ton. Or, it may not have been the intention of the Washington
Court to include these cases within the ambit of its ruling.
Washington spoke with approval of Wright v. Rockefeller,
376 U.S. 52, 84S. Ct. 603, 11 L.Ed.2d 512 (1964), reh. den.
376 U.S. 959, 84S. Ct. 964, 11 L.Ed.2d 977, setting out the
“intent to gerrymander” requirement established in Wright.
Washington, at 2047-48.
Wright was the direct descendant of Gomillion v. Lightfoot,
364 U.S. 339, 81 S. Ct. 125, 5 L-Ed.2d 110 (1960). These two
cases involved racial gerrymandering of political lines. Gomil-
lion dealt with an attempt by the Alabama legislature to
exclude most black voters from the municipal limits of Tus-
kegee so whites could control the election. The court found that
the State of Alabama impaired the voting nghts of black
citizens while cloaking it in the garb of the realignment of
political subdivisions and held there was a violation of the
Fifteenth Amendment. Gomillion, at 345. There was no direct
proof of racial discriminatory intent. Justice Stevens in his
concurring opinion noted with approval, “... when the dis-
proportion [ate impact] is as dramatic as in Gomillion ..., it
really does not matter whether the standard is phrased in terms
of purpose or effect.” Washington, at 2054.22 (Emphasis
added. )
Wright dealt with the issue of congressional redistricting of
Manhattan. The plaintiffs alleged racially motivated districting.
The congressional lines drawn created four districts. One had a
large majority of blacks and Puerto Ricans. The other three
had large white majorities. The court held the districts were not
unconstitutionally gerrymandered upon the finding that “...
22 In Paige v. Gray, 538 F.2d 1108 (Sth Cir. 1976), black citizens
of Albany, Georgia, brought an action to invalidate the at-large
system of electing city commissioners. At 1110, n.3, the court noted
the above quote by Justice Stevens, but in the body of the opinion
expressed concern with unlawful motive for discriminatory purpose as
required by Washington. However, at 1110, the court stated “the
validity of Albany’s change from a ward to an at-large system can
best be handled by applying the multifactor test enunciated in...
White v. Regester ... and Zimmer v. McKeithen.” Paige, at 1111,
stated Zimmer still “sets the basic standard in this circuit.”
30a
the New York legislature was [not] motivated by racial
considerations or in fact drew the districts on racial lines.”
Wright, 376 U.S. at 56. This set forth the principle that in
gerrymandering cases in order for the plaintiffs to obtain relief
they must show racial motivation in the drawing of the district
lines.
Washington then quoted with approval from Keyes v.
School District No. I, 413 U.S. 189, 93 S. Ct. 2686, 37 L.Ed.2d
548 (1973), indicating a distinction or reconciliation of that
case with Washington. There had not been racial purpose or
motivation ab initio in Keyes. Keyes was a Denver, Colorado,
school desegregation case. Denver schools had never been
segregated by force of state statute or city ordinance. Never-
theless, the majority found that the actions of the School Board
during the 1960’s were sufficiently indicative of “... [a]
purpose or intent to segregate” and a finding of de jure
segregation was sustained. Keyes, at 205, 208. That court held
that to find overt racial considerations in the actions of govern-
ment Officials is indeed a difficult task.23
Washington further commented:
“*... am invidious discriminatory purpose may often be inferred
from the totality of the relevant facts, including the fact, if it is
true, that the law bears more heavily on one race than another.”
Washington, 96 S. Ct. at 2049.
The plaintiffs contend that Washington’s discussion with
approval of the Keyes case permits the application of the “tort”
standard in proving intent. In his concurring opinion, Justice
Stevens discussed this point:
» In another Fifth Circuit case it was held that if an official is
motivated by such wrongful intent, he or she
“... will pursue his discriminatory practices in ways that are
devious, by methods subtle and elusive—for we deal with an
area in which ‘subtleties of conduct... play no small part.’ ”
U.S. v. Texas Ed. Agency, 532 F.2d 380, 388, (Sth Cir.
1976) (Austin II) (school desegregation ).
3la
“Frequently the most probative evidence of intent will be
objective evidence of what actually happened rather than evi-
dence describing the subjective state of mind of the actor. For
normally the actor is presumed to have intended the natural
consequences of his deeds. This is particularly true in the case of
governmental action which is frequently the product of com-
promise, of collective decision-making, and of mixed motiva-
tion.” Washington, 96 S. Ct. at 2054. (Emphasis added. )
The plaintiffs contend this circuit’s use of the tort standard
of proving intent squares with the above statements. This
circuit for several years has accepted and approved the tort
standard as proof of segregatory intent as a part of state action
in school desegregation findings. Morales v. Shannon, 516 F.2d
411, 412-13 (Sth Cir. 1975), cert. den. 423 U.S. 1034 (1975).
Recently, citing Morales, supra, Cisneros v. Corpus Christi
Independent School District, 467 F.2d 142 (Sth Cir. 1972) (en
banc), cert. den. 413 U.S. 920 (1973), reh. den. 413 U.S. 922
(1973), and United States v. Texas Educational Agency, 467
F.2d 848 (Sth Cir. 1972) (en banc) (Austin I), the Fifth
Circuit in U.S. v. Texas Education Agency, (Austin Independ-
ent School District) 532 F.2d 380 (Sth Cir. 1976) (Austin II)
squarely addressed the meaning of discriminatory intent in the
following language:
“Whatever may have been the originally intended meaning of
the test we applied in Cisneros and Austin ] [U.S. v. Texas
Education Agency, supra,| we agree with the intervenors that,
after Keyes, our two opinions must be viewed as incorporating in
school segregation law the ordinary rule of tort law that a person
intends the natural and foreseeable consequences of his actions.
“Apart from the need to conform Cisneros and Austin J to the
supervening Keyes case, there are other reasons for attnibuting
responsibility to a state official who should reasonably foresee
the segregative effects of his actions. First, it is difficult—and
often futile—to obtain direct evidence of the official’s intentions.
.... Hence, courts usually rely on circumstantial evidence to
ascertain the decisionmakers’ motivation.” Jd. at 388.
32a
This court in its findings of fact has held that when the
1919 statute and the 1939, etc. Acts were enacted, the blacks
were disenfranchised and here concludes the statutes on their
respective faces were neutral. This is in line with Fifth Circuit
opinions, McGill v. Gadsden Co. Commission, 535 F.2d 277
(Sth Cir. 1976), Wallace v. House, 515 F.2d at 633 (Sth Cir.
1975), vacated US. , 96 S. Ct. 1721, 48 L.Ed.2d 191
(1976). No. 74-2654 (Sth Cir., Sept. 17, 1976), affirmed the
District Court and Taylor v. McKeithen, 499 F.2d 893, 896 (5th
Cir. 1974). However, in the larger context, the evidence is clear
that one of the primary purposes of the 1901 constitutional
convention was to disenfranchise the blacks.
Therefore, the legislature in 1919 and 1939, etc. Acts was
acting in a race-proof situation. There can be little doubt as to
what the legislature would have done to prevent the blacks
from effectively participating in the political process had not the
effects of the 1901 constitution prevailed. The 1901 constitution
and the subsequent statutory schemes and practices throughout
Alabama, until the Voting Rights Act of 1965, effectively
disenfranchised most blacks.
A legislature in 1919, little more than 50 years after a bitter
and bloody civil war which resulted in the emancipation of the
black slaves, or a legislature in 1939, etc., should have reason-
ably expected that the blacks would not stay disenfranchised. It
is reasonable to hold that the present dilution of black Mobi-
lians is a natural and foreseeable consequence of the at-large
election system imposed.
Under Alabama law, the legislature is responsible for
Passing acts modifying the form of city and county govern-
ments. Mobile County elects or has an effective electoral voice
in the election of eleven members of the House and three
senators. The state legislature observes a courtesy rule, that is,
if the county delegation unanimously endorses local legislation,
the legislature perfunctorily approves all local county legisla-
tion. The Mobile County Senate delegation of three members
operates under a courtesy rule that any one member can veto
33a
any local legislation. If the Senate delegation unanimously
approves the legislation, it will be perfunctorily passed in the
State Senate. The county House delegation does not operate on
an unanimous rule as in the Senate, but on a majority vote
principle, that is, if the majority of the House delegation favors
local legislation, it will be placed on the House calendar but will
be subject to debate. However, the proposed county legislation
will be perfunctorily approved if the Mobile County House
delegation unanimously approves it. The evidence is clear that
whenever a redistricting bill of any type is proposed by a county
delegation member, a major concern has centered around how
many, if any, blacks would be elected. These factors prevented
any effective redistricting which would result in any benefit to
the black voters passing until the State was redistricted by a
federal court order.24 There are now three blacks on the eleven
member House legislative delegation. This resulted in passage
in the 1975 legislature of a bill doing away with the at-large
election of the County Board of School Commissioners and
creating five single-member districts. This was promptly
attacked by the all-white at-large elected County School Board
Commission in the State court. The act was declared uncon-
stitutional.
This natural and foreseeable consequence of the 1919 Act,
or the 1939, etc. Acts, black voter dilution, was brought to
fruition in a few years, the middle 1960’s, and continues to the
present. This court sees no reason to distinguish a school
desegregation case from a voter discrimination case. It appears
to this court that the evidence supports the tort standard as
advocated by the plaintiffs. However, this court prefers not to
base its decision on this theory. This court deems it desirable to
determine if the far-reaching consequences of Washington as
advanced by the defendants is correct without regard to Keyes.
This court is unable to accept such a broad holding with such
far-reaching consequences.
The case sub judice can be reconciled with Washington.
The Washington Court, in Justice White’s majority opinion,
included the following:
24 Sims v. Amos, 336 F. Supp. 924 (M/D Ala. 1972).
34a
“This is not to say that the necessary discriminatory racial
purpose must be express or appear on the face of the statute, or
that a law’s disportionate impact is irrelevant in cases involving
Constitution-based claims of racial discrimination. A statute,
otherwise neutral on its face, must not be applied so as
invidiously to discriminate on the basis of race. Yick Wo v.
Hopkins, 118 U.S. 356 (1886).” Washington, 96 S. Ct. at 2048.
To hold that the 1919, or 1939, etc. Acts while facially neutral
would defeat rectifying the invidious discrimination on the basis
of race which the evidence has shown in this case would fly in
the face of this principle.
It is not a long step from the systematic exclusion of blacks
from juries which is itself such an “unequal application of the
law. .. as to show intentional discrimination.” Atkins v. Texas,
325 U.S. 398, 404, 65 S. Ct. 1276, 89 L.Ed. 1692 (1945) and
the deliberate systematic denials to people from juries because
of their race, Carter v. Jury Commission, Cassell v. Texas,
Patton v. Mississippi, cited in Washington, at 2047, to a present
purpose to dilute the black vote as evidenced in this case.
There is a “current” condition of dilution of the black vote
resulting from intentional state legislative inaction which is as
effective as the intentional state action referred to in Keyes.
Washington, at 2048.
More basic and fundamental than any of the above
approaches is the factual context of Washington and this case.
Initia! discriminatory purpose in employment and in redistric-
ting is entirely different from resulting voter dilution because of
racial discnmination. Washington’s failure to expressly over-
rule or comment on White, Dallas, Chapman, Zimmer, Turner,
Fortson, Reynolds, or Whitcomb, leads this court to the con-
clusion that Washington did not overrule those cases nor did it
establish a new Supreme Court purpose test and require initial
discriminatory purpose where voter dilution occurs because of
racial discrimination.
Ill.
In order for this court to grant relief as prayed for by
plainuffs, it must be shown that the political process was not
ee Bee
35a
open equally to the plaintiffs as a result of dilution of voting
strength and consequently the members of the class had less
opportunity to participate in the political process and elect
representatives of their choice. Chapman, 420 US. at 18, and
Whitcomb. “Access to the political process and not [the size of
the minority] population” is the key determinant in ascertain-
ing whether there has been invidious discrimination so as to
afford relief. White, 412 U.S. at 766; Zimmer, 485 F.2d at
1303.
The idea of a democratic society has since the estab-
lishment of this country been only a supposition to many
citizens. The Supreme Court vocalized this realization in
Reynolds where it formulated the “one person-one vote”’ goal
for political elections. The precepts set forth in Reynolds are the
substructure for the present voter dilution cases, stating that
“every citizen has an inalienable mght to full and effective
Participation in the political processes... .” Reynolds, 377 US.
at 565. The Judiciary in subsequent cases has recongized that
this principle is violated when a particular identifiable racial
group is mor able to fully and effectively participate in the
political process because of the system’s structure.
Denial of full voting nghts range from outright refusal to
allow registration, Smith, to racial gerrymandering so as to
exclude persons from voting in a particular jurisdiction, Gomil-
lion, to establishing or maintaining a political system that grants
citizens all procedural nghts while neutralizing their political
strength, White. The last arrangement is maintained by the
countywide at-large election of school commissioners.
Essentially, dilution cases revolve around the “quality” of
respresentation. Whitcomb, 403 U.S. at 142. The touchstone
for a showing of unconstitutional racial voter dilution is the test
enunciated by the Supreme Court in White, 412 U.S. at 765:
‘““Whether multi-member districts are “being used invidiously to
cancel out or minimize the voting strength of racial groups.” In
White, for slightly different reasons in each county, the Supreme
Court found that the multi-member districts in Dallas and
36a
Bexar Counties, Texas, were minimizing black and Mexican-
American voting strength.
Attentive consideration of the evidence presented at the
trial leads this court to conclude that the present at-large
countywide election of school commissioners impermissibly
violates the constitutional rights of the plaintiffs by improperly
restricting their access to the political process. White, 412 U.S.
at 766; Whitcomb, 403 U.S. at 143. The plaintiffs have
discharged the burden of proof as required by Whitcomb.
This court reaches its conclusion by collating the evidence
produced and the law propounded by the federal appellate
courts. The controlling law of this Circuit was enunciated by
Judge Gewin in Zimmer, which closely parallels Whitcomb and
White.25 The Zimmer court, in an en banc hearing, set forth
four primary and several “enhancing” factors to be considered
when resolving whether there has been impermissible voter
dilution. The primary factors are:
a
. a lack of access to the process of slating candidates, the
unresponsiveness of legislators to their particularized interests, a
tenuous state policy underlying the preference for multi-member
or at-large districting, or that the existence of past discrimination
in general precludes the effective participation in the election
system, a strong case [for relief] is made.” Zimmer at 1305.
[ footnotes omitted }.
The enhancing factors include:
“a showing of the existence of large districts majority vote
requirements, anti-single shot voting provisions and the lack of
provision for at-large candidates running from particular geogra-
phical subdistricts.” Zimmer at 1305 [footnotes omitted ].
1. LACK OF OPENNESS IN THE SLATING PROCESS OR
CANDIATE SELECTION PROCESS TO BLACKS.
Any person interested in running for school commissioner is
able to do so.
25 See also Paige v. Gray, 538 F.2d 1108 (5th Cir. 1976).
on t@rarcean~ dd
I
37a
The system at first blush appears to be neutral, but
consideration of facts beneath the surface demonstrate the
effects which lead the court to conclude otherwise. No black
has ever been elected school commissioner in Mobile County.
The evidence indicates that black politicians who have pre-
viously been candidates in at-large elections and would run
again in the smalier single-member districts, shy away from
county at-large elections. One of the principal reasons is the
polarizaiton of the white and black vote. The court is con-
cerned with the effect of lack of openness in the electoral system
in determining whether the multi-member at-large election
system of the school commissioners is invidiously dis-
criminatory.
In White, the Supreme Court expressed concern with any
type of barrier to effective participation in the political process.
Zimmer, 485 F.2d at 1305, n. 20, expressed its view in this
language: “The standards we enunciate today are applicable
whether it is a specific law or custom or practice which causes
diminution of a minority voting strength.”
There is a lack of openness to blacks in the political process
in the school commissioners’ election.
2. UNRESPONSIVENESS OF THE ELECTED
SCHOOL COMMISSIONERS TO THE BLACK
MINORITY.
It is the conclusion of the court that the countywide elected
shool commissioners as practiced in Mobile County has not,
and is not, responsive to blacks on an equal basis with whites;
hence there exists racial discrimination. Past school boards
have not only acquiesed to segregated folkways, but the County
Schoo! Board has been in federal court continuously since 1963
to effect meaningful desegregation. Davis v. Mobile County
School Board, Civil Action No. 3003-63 (S/D Ala.). During
the course of this court’s continuing jurisdiction in Davis, there
have been 15 or more appeals to the Fifth Circuit. As
hereinbefore set out, the Board has been repeatedly guilty of
dilatory practices and it cannot justly claim credit for the
38a
improvement of the school system today since they are oper-
ating under a court order and the watchful eye of the court in
the implementation of that order.26
There has been a lack of responsiveness in employment
and the operation of a dual school system. The dis-
establishment of that system and the establishment of a unitary
system has been significantly slow. It is this court’s opinion that
leadership should be furnished in non-discriminatory hiring and
promotion by our government, be it local, state, or federal.27
3. NO TENUOUS STATE POLICY SHOWING A
PREFERENCE FOR AT-LARGE DISTRICTS.
The Alabama legislature has offered little evidence of a
preference one way or the other for multi-member or at-large
districts in its counties. This court finds state policy regarding
multi-member at-large districting as neutral.
4. PAST RACIAL DISCRIMINATION.
It is this court’s opinion that fair and effective participation
under the present electoral system is, because of its structure,
26 All members of the school board just prior to the November
1976 election resided in metropolitan Mobile. Four members of the
school board presently reside in metropolitan Mobile. There have
been orders from this court against the City of Mobile or its
departments to desegregate the police department, the golf course,
public transportation, the airport, and an order affecting the City and
County which attack racial discrimination, to wit, the Allen, Anderson,
Sawyer, Evans, and Cooke, supra, cases.
27 Norman R. McLaughlin, etc. v. Howard H. Callaway, et al.,
Civil Action No. 74-123-P, S/D Ala., 9/30/74, at p. 22:
“It is only fitung that the government take the lead in the
battle against discrimination by ferreting out and bringing
an end to racial discrimination in its own ranks.”
Mobile has no ordinances proclaiming equal employment opportu-
nity, either public or private, to be its policy. There are no non-
discriminatory rental ordinances. On the one hand, the federal courts
are often subjected to arguments by recalcitrant state and local
Officials of the encroachment of the federal bureaucracy and assert
Tenth Amendment violations—while making no mention that were it
not for such “encroachment” citizens would not have made the
progress they have to fulfillment of equal nghts. Recent history bears
witness to this proposition.
39a
difficult for the black citizens of Mobile County. Past dis-
criminatory customs and laws that were enacted for the sole
and intentional purpose of extinguishing or minimizing biack
political power is responsible. The purposeful excesses of the
past are still in evidence today. Indeed, Judge Rives, writing
for a three-judge panel finding the Alabama poll tax to be
unconstitutional, stated forcefully:
‘““The long history of the Negroes’ struggle to obtain the nght to
vote in Alabama has been trumpeted before the Federal Courts
of this State in great detail. *** If this Court ignores the long
history of racial discrimination in Alabama, it will prove that
justice is both blind and deaf.’ We would be blind with
indifference, not impartiality, and deaf with intentional disregard
of the cnes for equality of men before the law.” U.S. v. State of
Alabama, 252 F. Supp. at 104 (M.D. Ala. 1966), [citing Sims v.
Baggett, 247 F. Supp. 96, 108-09 (M.D. Ala. 1965)].
Without question, past discrimination, some of which
continues to today as evidenced by the orders in several
lawsuits in this court against the city and county, and demon-
strated in the lack of access to the selection process and the
school commissioners’ unresponsiveness, contributes to black
voter dilution.
5. ENHANCING FACTORS.
Zimmer, in addition to enumerating four substantial cn-
teria in proving voter dilution, listed four “enhancing factors”
that should be considered as proof of aggravated dilution.
a. Large Districts. The present at-large election
system is as large as possible, i.e., the county. The county,
with an area of 1,240 square miles and 317,308 persons,
according to the 1970 Census, can reasonably be divided
into election districts. It is common knowledge that
numerous counties in the State have countywide officers
such as county commissioners, divided into single-member
districts and function reasonably well. It is large enough to
be considered large within the meaning of this factor.
b. Majority Vote Requirements. There is a majority
vote requirement for primary elections, Title 17, Sec. 366,
Code of Alabama (1958). There is no such requirement in
40a
the general election. Very rarely, if ever, have more than
two persons opposed one another in a general election. As
a practical matter, in the past, the effects of a majority vote
have prevailed.
c. Anti-single Shot Voting. There is no anti-single
shot voting provision in the present system of electing
members of the Board. The Board members do run for a
numbered place, Title 17, Sec. 153(1), Code of Alabama
(1958). This place provision has to some extent the same
result as the anti-single shot voting provision. At least in
part, the practical results of an anti-single shot provision
obtains in Mobile County.
d. Lack of Residency Requirement. The present
system of election of the Board members does not contain
any provision requiring that any commissioner reside in
any specific district or one geographical area of the county.
IV.
The court has made a finding for each of the Zimmer
factors, and most of them have been found in favor of the
plainuffs. The court has analyzed each factor separately, but
has not counted the number present or absent in a “score-
keeping” fashion.
The court has made a thoughtful, exhaustive analysis of
the evidence in the record “... paying close attention to the
facts of the particular situations at hand,” Wallace, 515 F.2d at
631, to determine whether the minority has suffered an uncon-
stututional dilution of the vote. This court’s task is not to tally
the presence or absence of the particular factors, but rather, its
opinion represents “. . . a blend of history and an intensely local
appraisal of the design and impact of the multi-member district
[under scrutiny] in light of past and present reality, political
and otherwise.” White, 412 U.S. at 769-70.
The court reaches its conclusion by following the teachings
of White, Dallas v. Reese, 421 U.S. 477, 480, 95 S. Ct. 1706, 44
L.Ed.2d 312 (1975), Zimmer, Fortson, and Whitcomb, et al.
AMT
4la
The evidence when considered under these teachings con-
vinces this court that the at-large districts “operate to minimize
or cancel out the voting strength of racial or political elements
of the voting population.” Whitcomb, 403 U.S. at 143, and
Fortson, 379 U.S. at 439, and “operates impermissibly to dilute
the voting strength of an identifiable element of the voting
population,”. Dallas, at 480. The plaintiffs have met the
burden cast in White and Whitcomb by showing an aggregate
of the factors catalogued in Zimmer.
In summary, this court finds that the electoral structure, the
muiti-member at-large election of Mobile County School Com-
missioners, results in an unconstitutional dilution of black
voting strength. It is “fundamentally unfair”, Wallace, 515
F.2d at 630, and invidiously discriminatory.
The Supreme Court has laid down the general principle
that “when District Courts are forced to fashion apportionment
plans, single-member districts are preferable to large multi-
member districts as a general matter.” Connor v. Johnson, 402
U.S. 690, 692, 91 S. Ct. 1760, 29 L.Ed.2d 268 (1971). The
Court reaffirmed this twice in the last term. East Carroll Parish
School Board, and Wallace, supra. Once the racial dis-
criminatory evil has been established, as it was in White, the
dilution occasioned by the multi-member at-large election
requires the disestablishment of the multi-member at-large
election and the obvious remedy is to establish single-member
districts.
This court does not endorse the idea of quota voting or
elections, nor of a weighted vote in favor of one race to offset
racial prejudice or any other adversity. However, when the
electoral structure of the government is such, as in this case, that
racial discrimination precludes a black voter from an effective
Participation in the election system, a dilution of his and other
black votes has occurred.
The moving spirit present at the conception of this nation,
‘all men are created equal,” will not rest and the great purpose
of the Constitution to “establish Justice, insure domestic Tran-
quility,... and secure the Blessings of Liberty to ourselves and
42a
our Posterity ...” will be only a dream until every person has
an opportunity to be equal. To have this opportunity, every
person must be treated equally. This includes being treated
equally in the electoral process.
A county school commissioner election plan which includes
small single-member districts will provide blacks a realistic
opportunity to elect blacks to the Board of School Commission-
ers. No such realistic opportunity exists as the Board is
presently structured. A single-member district plan would
afford such an opportunity. Blacks’ effective participation in the
elective system will have the salutary effect of giving them a
realistic opportunity to get into the mainstream in the operation
of Mobile’s school system which has a ratio range of 55 to 45,
60/40 white/black students. It will give them an opportunity to
have an input and impact on the educational system. Good
quality education equally available to all, (with the people
having a compassionate concern, love, for one another) prob-
ably affords the best hope for a strong democracy and the
sharing of this nation’s economic and social benefits. It will
afford an opportunity for a more meaningful dialogue between
the whites and blacks to develop.
V.
There is a traditional constitutional tolerance of various
forms of local government. See, e.g., Abate v. Mundt, 403 U.S.
182, 185, 91 S. Ct. 1904, 29 L.Ed.2d 399 (1971).
The court recognizes the “delicate issues of federal-state
relations underlying this case.” Mayor of the City of Phila-
delphia, 415 US. at 615.
The single-member districts have advantages other than
correcting constitutional differences as found in this decree.2®
28 William Dove, Sr., et al. v. Charles E. Moore, et al., $.O. 75-
1918 (8th Cir. 7/27/76), set out in footnote 3:
“The author has previously discussed at length the under-
sirable characteristics of at-large elections and the benefits of
ingle-member districts. Chapman v. Meier, 372 F. Supp.
371, 388-94 (D. N.D. 1974) (three-judge court) ( Bnght, J.,
dissenting ), majority reversed, 420 U.S. 1 (1975). In the
(footnote continued)
ent tp rete ts
43a
The court hereby adopts the plan, including the map
designating the districts, submitted by the plaintiffs and
attached as “Appendix B” and is part of this decree the same as
if set out at length herein. This plan divides the county into five
single-member districts. The lines are drawn along traditional
precinct lines which will minimize voting conflicts. There is a
maximum population variation in the districts of 6.3%.
(footnote continued)
context of a discussion of proposed plans for the
reapportionment of a state legislature, the dissent empha-
sized the following benefits of single-member districts:
(1) It gives a voter a chance to compare only two
candidates, head to head in making a choice.
(2) It prevents one political party with a heavy plural-
ity in One or two potential districts from domina-
ting other potential districts that might narrowly go
for the candidate of the opposite party.
(3) It prevents a city wide political organization from
ostracizing or disciplining a legislator, who dares
stray from the machine’s line.
(4) It permits a citizen to identify a legislator as his
senator and makes direct communication easier.
(5) It makes each senator responsible for his actions
and makes it difficult for a senator to fade into the
ranks of “the team” to avoid being identified with
specific actions taken.
(6) It reduces campaign costs and “personalizes” a
campaign.
(7) It creates greater interest in the possibility of a
citizen seeking a legislative seat without the politi-
cal machine blessing.
(8) It would diminish the animosity created in the
legislature against multi-senate districts because of
the tendency of senators elected by one political
party from a city to vote as a bloc.
(9) It would tend to guarantee an individual point of
view if all senators are not elected as a team.
(10) It would equalize the power of people in single
senate districts with the people in the broken down
multi-senate districts to influence the election of
only one senator.
[372 F. Supp. at 391 (footnote omitted ) (emphasis in original ). }
44a
The court has stated repeatedly to the parties that it felt
constrained to tinker with the present size of the membership
and other features of the existing method of election as little as
possible, i.e., require only that which is necessary to meet the
constitutional mandates of this decree.
The Commissioners for Districts 3 and 4 will be elected in
1978. Commissioners for Districts 2 and 5 will be elected in
November, 1980. The commissioner for District | will be
elected in November, 1982. The commissioners will take office
on the date as provided by the laws of the State of Alabama.
As the single-member districts are elected in the future,
each school commissioner shall have been a resident of the
district which that person represents for not less than 12 months
immediately preceding that person’s election and shall reside in
the district during that person’s term of office. All other
qualifying and eligibility requirements should be that as pro-
vided by the laws of the State of Alabama. All other laws of
the State of Alabama as apply to the Mobile County School
System not in conflict with this order shall govern.
The Board since 1919 has been made up of five members.
Various proposals have been made to enlarge the membership
and designate when the new members should be elected. It is
the court’s considered judgment that changes made by the court
should be minimal and only to correct constitutional defi-
ciencies. For these reasons, the number of the members of the
Board, the length of the term of office, and the staggered office
terms and election, are to remain as provided by the legislature.
The plaintiffs desired a hearing far enough in advance of
the November election for the court to make a decision, and if
single-member districts were provided, that a special election be
held prior to the 1976 general election with the winners of the
various party elections being placed on the November general
election ballot. If this was not done, they requested a special
election be called after the general election.
The defendants desired that all elected members of the
Board be allowed to serve out their respective terms until
vacancies were created in sufficient number to fill the single-
member districts predominantly populated by black voters.
ee oe ees. er ne
al re ly Cae te
ee a ee ee ee eee)
45a
Due to the time problems created by the dismissal, and
later adding the school commissioners as defendants, the
defendants would not have had sufficient time to prepare their
defense, and the court would have been unable to make a
reasoned judgment for elections to be held in 1976.
The court is unwilling to put the taxpayers to the expense
of special elections, and the court is unwilling to deny the blacks
the relief they are entitled to until 1980, a period of four years.
The court is desirous of mitigating the adjustment and seeing
that each elected member on the Board serves the longest
possible period of time.
During the course of the trial, the court was advised by
these defendants that they were interested in implementing a
single-member district plan, shortening the litigation and redu-
cing the expenses. They requested an opportunity for the
defendants and plaintiffs to negotiate a compromise settlement.
The parties indicated they desired some guidelines from court
concerning when the election of single-member representatives
would take place, and, if any of the elected members’ terms
would be shortened, which one. The court stated in substance
the above election schedule and stated it appeared equitable to
the court that if any member’s terms were shortened, it should
be those who had the least remaining time of service remaining
on their six year term.
This approach continues to be the view of the court as an
equitable solution. The present board members who will have
the least remaining time of service, or who will have served
most of their elected term at the time of the 1978 elections, will
be Board members Alexander and Drago.
Under the ordered single-member district plan which
requires residence in the district which the commissioner repre-
sents, the present Board members now reside in the districts as
follows:
Commissioners Bosarge, Alexander, and Berger in District
2.
Commissioner Sessions in District 4.
Commissioner Drago in District 5.
46a
No one resides in District 3 which has a majority black
population and is entitled to a commissioner in 1978. Commis-
sioner Sessions resides in District 4 which has a majority black
population and is entitled to a place in 1978. Commissioner
Sessions’ term expires in 1978 and there will automatically be a
vacancy for that district at that time.
In order for District 3 to have a place, one other Board
member’s term must be shortened or modified. Proceeding on
the premises above stated of shortening or modifying members’
terms who had the least remaining time of service, the choice
narrows to Commissioners Alexander and Drago.
It appears more equitable to the court to modify one
commissioner’s powers and duties and allow that commissioner
to complete his term rather than shorten it. For the remaining
four commissioners, presently in office, after 1978, to complete
their currently elected terms with new commissioners to be
elected for Districts 3 and 4 in 1978, would make a Board
consisting of six members. A six member board would lend
itself to possible tie votes of three to three. The Board couid be
rendered ineffective under such conditions.
Should one of the places held by a commissioner other
than Commissioner Sessions, whose place will not be open for
election in 1978, become vacant pnor to the time required by
the laws of the State of Alabama for qualifying for the
November, 1978, election, that place will not be filled by
election in 1978, but will be occupied by either Commissioner
Alexander or Drago.
In the event there is not a vacancy in one of the present
places as above set out, the Board, by a majority vote on or
before one month prior to the general election in 1978, shall
elect a Chairman or President (Chairman) of the Board, and
immediately report the results of the election to this court, to
serve until the general election in 1980, and the successors for
the two places elected in 1980 have qualified and taken office.
The Chairman to be elected is to be either Commissioner
Alexander or Commissioner Drago, the two members of the
present board with the least remaining years of service in their
47a
elected term. Their present terms expire after the general
election in November, 1980, when their successors have been
elected, qualified and taken office according to the laws of
Alabama. The Chairman will have all the powers the Chair-
man would have under the law, rules, and regulations they are
governed by except the nght to vote. For this two year period
of time only, 1978 to 1980, the Chairman will have the right to
vote only in the event of a tie vote which could be occasioned
by abstension, absence, or any other reason. After the 1980
election, the Board will have only five members and this
provision with reference to the Chairman will no longer apply.
It is therefore ORDERED, ADJUDGED, and DECREED
that there shall be elected in November, 1978, school commis-
sioners for Districts 3 and 4; there shall be elected in Novem-
ber, 1980, school commissioners for Districts 2 and 5; and there
shall be elected in November, 1982, a school commissioner
from District 1.29
It is further ORDERED, ADJUDGED and DECREED
that whenever there shall be a change in any of the five districts
heretofore established, evidenced by a federal census of popu-
lation published following a federal census hereafter taken,
there shall be a reapportionment of the school commissioner
districts in the manner hereinafter provided.
(1) The school commissioners shall within six months after
the publication of each decennial federal census of population
for the county, commencing with the 1990 census, file with this
court a report containing a recommended plan for the
reapportionment of the school commissioner boundaries to
comply with the following specifications:
(a) Each district shall be formed of contiguous and to
the extent reasonably possible, compact ternitory, and its
boundary lines shall follow State Senate and House district
lines, ward or precinct lines, to the maximum extent
possible and other boundary lines shall be the center lines
of streets or other well defined boundaries.
(b) Each district shall contain as nearly as is reason-
able, the same population.
29 AJ] the Districts to be as described in Appendix B.
48a
(2) The report shall include a map and description of the
districts.
(3) The provisions of the 1965 Voting Rights Act shall be
complied with.
(4) The school commissioners shall comply with any other
United States Congressional legislation relating to this subject
matter and in compliance with the United States constitutional
law.
(5) Upon compliance the above provisions, the redistric-
ting should become effective.
(6) Such redistricting shall not apply to any regular or
special election held within six months after its becoming
effective. No incumbent member of the Board shall be
deprived of his unexpired term of office because of such
redistricting.
It is further ORDERED, ADJUDGED and DECREED
that the defendants, John L. Moore, individually and in his
official capacity as Probate Judge of Mobile County; John E.
Mandeville, individually and in his capacity as Court Clerk of
Mobile County; Thomas J. Purvis, individually and in his
official capacity as Shenff of Mobile County, Robert R. Wil-
liams, Dan C. Alexander, Jr., Norman J. Berger, Ruth F.
Drago, Homer L. Sessions, individually and in their official
capacites as School Commissioners of Mobile County, Ala-
bama; the Board of School Commissioners of Mobile County,
Alabama, and Mobile County, Alabama, their agents, servants,
employees, and successors, are hereby ENJOINED from failing
to:
(1) Redistrict as set out above.
(2) Make and hold the elections as redistricted.
The defendant Board of School Commissioners and Mo-
bile County are taxed with the costs, including attorneys’ fees.
Within 30 days from this date, the attorneys for the
plaintiffs are to file affidavits setting forth their claim for
‘ attorneys’ fees, including hours worked and hourly charges.
Beh tle at te wen 0) sea ae
Ne Tas. nx? Dace
ee
ec eee Ses se wei oe
49a
The defendants, School Board Commissioners and Mobile
County, are to be sent a copy of this claim and these defendants
may object in writing within 15 days.
This court retains jurisdiction for the implementation of
this order.
Done, this the 9th day of December, 1976.
VirGiL PITTMAN )$|//S/
UNITED STATES
DISTRICT JUDGE
U.S. DISTRICT COURT
SOU. DIST. ALA.
FILED AND ENTERED THIS THE
9TH DAY OF DECEMBER 1976
WILLIAM J. O'CONNOR, CLERK
Sla
50a
me “APPENDIX B”
[Caption Omitted in Printing] 3
“APPENDIX A” Analysis of Plaintiffs’ Plan for School Board
perp rbay potenti A cnc District | Ward/Precinct Population % Black VAP Black =
MOTION TO SEVER AND DISMISS OR CONTINUE | 100-4 7,760 006 46
The defendant’s motion to sever is hereby DENIED. The North 37'665 ca
defendant’s motion to dismiss is hereby DENIED. West 12/851 11538
The defendant’s motion to continue in order to give the 65,585 91 49
legislature of the State of Aiabama an opportunity to act on a > ines an a fe Jo
proposed redistricting is hereby DENIED. South 34,92 4 a 1 as
The complaint was filed June 9, 1975. The defendant’s | # — = 156
attention is directed to a conference with the attorneys for the 100-3 7007 99 1.542
Board of School Commissioners, the County Commissioners, ! _ 5.520 004 22
and the City Commission of the City of Mobile, in open court AYA? Serr
on July 14, 1976. The long delay of the defendant in answering | 3 7.
the complaint making the School Board, et al., defendants a 3 oe 41.578 ue 21,005
second time, was called to the attention of the attorney for the 99.1 13°90 “— Pees
defendant School Board. 53,795 een
It was at the request of the defendant School Board that a ; : ee ng on fom
continuance was granted of the tnal of their case at that time, re reyn pe =
although there were mitigating court scheduling problems. | 99-4 5536 997 $519
It was common knowledge at that time that a proposed os ret = 8.901
redistricting plan had been passed at a previous session of the | 103-3 $903 636 $'66
Legislature but later declared unconstitutional. It was common oes 4,896 03 | 47
knowledge there was pending in the State Legislature which 1034 1412 i aoe
was then in session a redistricting plan. The court specifically 51.790 TTI
advised counsel for all the parties that the court would not be 56.8%
“ye | 5 102-4 2,704 003 ~
disposed to further delay the trial or decision after the Septem- ade 5380 pe a
ber, 1976, setting, and if any, or all of the defendants, ) 102-7 3'872 785 3.040
anticipated seeking changes in the makeup or districting of their | if ans 7 Pe - |
respective Commissions or Boards, they should take action 101-4 5,888 074 432
while the Legislature was then in session. Due to the age of this | og iH : J ! ; 947
case, and the Legislature having had two opportunities to act | 104-3 8410 067 $63
during its pendency, additional delays are not justified. 104-4 6,029 08 3
Done, this the 7th day of September, 1976. | 1016 31489 pi 358
SOU. OMT. ALA. Vinci Pittman §$//S/ 64,598 7242
70 DAY or sevviaaen 1576 UNITED STATES Sources: figures compiled by Tony Parker for regression anal-
WILLIAM J. O'CONNOR, CLERK DISTRICT JUDGE ysis
a a ee eee
52a
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEILA G. BROWN, et al.,
Plaintiffs,
v. CIVIL ACTION
No. 75-298-P
JOHN L. MOORE, etc., et al.,
Defendants.
ORDER AND DECREE AMENDING
ORDER AND DECREE
DATED DECEMBER 9, 1976
The opinion and order signed by this court December 9,
1976, is AMENDED as follows:
The style of the case is AMENDED to read as follows:
“LEILA G. BROWN, MARY LOUISE
GRIFFIN, COOLEY, JOANNIE
ALLEN DUMAS, ELMER JOE DAILY
EDWARDS, ROSIE LEE HARRIS,
HAZEL C. HILL, JEFF KIMBLE,
FRANCES J. KNIGHT, JOHN W.
LEGGETT, JANICE M. McAUTHOR,
Plaintiffs,
CIVIL ACTION
No. 75-298-P
JOHN L. MOORE, individually and in
his official capacity as Probate Judge of
Mobile County; JOHN E. MANDE-
VILLE, individually and in his official
Ce eee eee ee er eS
Se
53a
capacity as Court Clerk of Mobile Coun-
ty, THOMAS J. PURVIS, individually
and in his official capacity as Sheriff of
Mobile County; HOWARD E. YEA-
GER, COY SMITH, G. BAY HAAS,
individually and in their official capacity
as Mobile County Commissioners; MO-
BILE COUNTY; THE BOARD OF
SCHOOL COMMISSIONERS, ROB-
ERT R. WILLIAMS, DAN C. ALEX-
ANDER, JR., NORMAN J. BERGER,
RUTH F. DRAGO, HOMER L. SES-
SIONS, individually and in their official
capacity as School Commissioners of
Mobile County, Alabama,
Defendants.”
On page 3, the first paragraph is AMENDED to read as
follows:
‘This court has jurisdiction over the claims grounded on 42
U.S.C. Sec. 1983 against the Board members and over the
claims grounded on 42 U.S.C. Sec. 1973 against all defendants
and under 28 U.S.C. Secs. 1343(3)-(4) and 2201.”
On page 3, that portion of the fourth paragraph “. . . the
Sheriff, and Mobile County.” is AMENDED to read “the
Sheriff and the Board of School Commissioners of Mobile
County.”
On page 44, the second and third sentence in the first
pararaph is AMENDED to read as follows:
“The Commissioner for District 5 will be elected in
November, 1980. The Commissioners for Districts | and 2 will
be elected in November, 1982.”
On page 44, in the third paragraph, the portion of the
second sentence, which reads as follows:
“ .. and the staggered office terms and election, are to
remain... .” is AMENDED to read as follows:
54a
“.. and the staggered office terms and election, except as
modified herein, are to remain... .”
Page 47 is AMENDED to read as follows:
“Should one of the places held by a commissioner other
than Commissioner Sessions, whose place will not be open for
election 1978, become vacant prior to the time required by the
laws of the State of Alabama for qualifying for the November,
1978, election, that place will not be filled by election prior to
November, 1980, but will be occupied by either Commissioner
Alexander or Drago until the expiration of the period of the
present term they are now serving.
In the event there is not a vacancy in one of the present
places as above set out, the Board, by a majority vote on or
before one month prior to the general election in 1978, shall
elect a Chairman or President (Chairman) of the Board, and
immediately report the results of the election to this court, to
serve to the end of the term in 1980 for which that person has
been elected. The Chairman to be elected is to be either
Commissioner Alexander or Commissioner Drago, the two
members of the present Board with the least remaining years of
service in their elected term. Their present terms expire after
the general election in November, 1980.
Since Commissioner Drago’s term expires at that time and
her place would ordinarily be up for election in the general
election of November, 1980, her successor will be elected from
District 5 in the general election of 1980. Commissioner Drago
will serve to the end of the term for which she has been elected
and until her successor has been elected, qualified, and taken
office according to the laws of Alabama. Since Commissioner
Alexander resides in District 2, and Commissioners Bosarge
and Berger live in District 2, no vacancy will exist in that district
in 1980. Commissioner Alexander will serve until the end of
the term in 1980 to which he was elected in 1974.
The Chairman elected under this order will have all the
powers the Chairman would have under the law, rules, and
a ea re es
55a
regulations the Chairman is now governed by except the right
to vote. For this two year period of time only, 1978 to 1980, the
Chairman will have the right to vote only in the event of a tie
vote which could be occasioned by abstension, absence, or any
other reason. After the 1980 election, the Board will have only
five members and this provision with reference to the Chairman
will no longer apply.
It is therefore ORDERED, ADJUDGED, and DECREED
that there shall be elected in November, 1978, school commis-
sioners from District 3 and 4; there shall be elected in Novem-
ber, 1980.”
On page 48, the first three lines are to be AMENDED to
read as follows:
**a school commissioner for District 5; and there shall be
elected in November, 1982, School commissioners from District
1 and 2.29”
Done, this the 13th day of December, 1976.
VirGIL PITTMAN /S/
UNITED STATES
DISTRICT JUDGE
U.S. District COURT
Sou. Dist. ALA.
FILED AND ENTERED THIS THE
13TH DAY OF DECEMBER 1976
MINUTE ENTRY No. 42431
WILLIAM J. O’CONNOoR, CLERK
By
Deputy CLERK
56a
IN THE UNITED STATES DISTRICT COU
RT FOR
THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEILA G. BROWN, MARY LOUISE
GRIFFIN, COOLEY, JOANNIE ALLEN
DUMAS, ELMER JOE DALY
EDWARDS, ROSIE LEE HARRIS
HAZEL C. HILL, JEFF KIMBLE
FRANCES J. KNIGHT. JOHN W.
LEGGETT, JANICE M. McAUTHOR, _
Plaintiffs,
m4 CIVIL ACTION
No. 75-298-P
JOHN L. MOORE, individually and in his
official capacity as Probate Judge of Mo-
bile County; JOHN E. MANDEVILLE
individually and in his official capacity as
Court Clerk of Mobile County, THOMAS
J. PURVIS, individually and in his official
capacity as Sheriff of Mobile County;
HOWARD E. YEAGER, COY SMITH. G.
BAY HAAS, individually and in their offi-
cial capacity as Mobile County Commis-
sioners; ROBERT R. WILLIAMS, DAN
C. ALEXANDER, JR., NORMAN J.
BERGER, RUTH F. DRAGO, HOMER
L. SESSIONS, individually and in their
Official capacity as School Commissioners
of Mobile County, Alabama,
Defendants.
JUDGMENT
This court has heretofore entered its findi
ndings of fact and
conclusions of law in favor of the plaintiffs and against a
defendants, John L. Moore, individually and in his official
57a
capacity as Probate Judge of Mobile County; John E. Mande-
ville, individually and in his official capacity as Court Clerk of
Mobile County; Thomas J. Purvis, individually and in his
official capacity as Sheriff of Mobile County; Robert R. Wil-
liams, Dan C. Alexander, Jr., Norman J. Berger, Ruth F.
Drago, Homer L. Sessions, individually and in their official
capacity as School Commissioners of Mobile County, Alabama,
and Mobile County, Alabama.
The court has found that the electoral structure, the multi-
member at-large election of the School Commissioners of
Moile County, results in an unconstitutional dilution of the
black plaintiffs’ voting strength. It is fundamentally unfair and
invidiously discriminatory.
In the plan adopted and approved by the court and
attached to the court’s Opinion and Order as “Appendix B”
thereof, the Commissioners for Districts 3 and 4 will be elected
in 1978. A commissioner for District 5 will be elected in
November, 1980. The commissioners for Districts 1 and 2 will
be elected in November, 1982. The commissioners will take
office on the date as provided by the laws of the State of
Alabama.
As the single-member districts are elected in the future,
each school commissioner shall have been a resident of the
district which that person represents for not less than 12 months
immediately preceding that person’s election and shall reside in
the district during that person’s term of office. All other
qualifying and eligibility requirements should be that as pro-
vided by the laws of the State of Alabama. All other laws of
the State of Alabama as apply to the Mobile County School
System not in conflict with this order shall govern.
The number of the members of the Board, the length of the
term of office, and the staggered office terms and election, are to
remain as provided by the legislature.
58a
Under the ordered single-member district plan which
requires residence in the district which the commissioner repre-
sents, the present Board members now reside in the districts as
follows:
Commissioners Bosarge, Alexander, and Berger in District
Commissioner Sessions in District 4.
Commissioner Drago in District 5.
No one resides in District 3 which has a majority black
population and is entitled to a commissioner in 1978. Commis-
sioner Sessions resides in District 4 which has a majority black
population and is entitled to a place in 1978. Commissioner
Sessions’ term expires in 1978 and there will automatically be a
vacancy for that district at that time.
In order for District 3 to have a place, one other Board
member’s term must be shortened or modified. Proceeding on
the premises stated of shortening or modifying members’ terms
who had the least remaining time of service, the choice narrows
to Commissioners Alexander and Drago.
Should one of the places held by a commissioner other
than Commissioner Sessions, whose place will not be open for
election in 1978, become vacant prior to the time required by
the laws of the State of Alabama for qualifying for the
November, 1978, election, that place will not be filled by
election prior to November, 1980, but will be occupied by
either Commissioner Alexander or Drago until the expiration of
the period of the present term they are now serving.
In the event there is not a vacancy in one of the present
places as above set out, the Board, by a majority vote on or
before one month prior to the general election in 1978, shall
elect a Chairman or President (Chairman) of the Board, and
immediately report the results of the election to this court, to
serve to the end of the term in 1980 for which that person has
been elected. The Chairman to be elected is to be either
se
59a
Commissioner Alexander or Commissioner Drago, the two
members of the present Board with the least remaining years of
service in their elected term. Their present terms expire after
the general election in November, 1980.
Since Commissioner Drago’s term expires at that time and
her place would ordinarily be up for election in the general
election of November, 1980, her successor will be elected from
District 5 in the general election of 1980. Commissioner Drago
will serve to the end of the term for which she has been elected
and until her successor has been elected, qualified, and taken
office according to the laws of Alabama. Since Commissioner
Alexander resides in District 2, and Commissioners Bosarge
and Berger live in District 2, no vacancy wil! exist in that district
in 1980. Commissioner Alexander will serve until the end of
the term in 1980 to which he was elected in 1974.
The Chairman elected under this order will have all the
powers the Chairman would have under the law, rules, and
regulations the Chairman is now governed by except the right
to vote. For this two year period of time only, 1978 to 1980, the
Chairman will have the right to vote only in the event of a tie
vote which could be occasioned by abstention, absence, or any
other reason. After the 1980 election, the Board will have only
five members and this provision with reference to the Chairman
will no longer apply.
It is therefore ORDERED, ADJUDGED, and DECREED
that there shall be elected in November, 1978, school commis-
sioners from District 3 and 4; there shall be elected in Novem-
ber, 1980, a school commissioner for District 5; and there shall
be elected in November, 1982, a school commissioner from
District | and a school commissioner from District 2.1
It is further ORDERED, ADJUDGED and DECREED
that whenever there shall be a change in any of the five districts
‘All the Districts to be as described in Appendix B to the
Opinion and Order.
60a
heretofore established, evidenced by a federal census of popu-
lation published following a federal census hereafter taken,
there shall be a reapportionment of the school commissioner
districts in the manner hereinafter provided.
(1) The school commissioners shall within six months after
the publication of each decennial federal census of population
for the county, commencing with the 1990 census, file with this
court a report containing a recommended plan for the
reapportionment of the school commissioner boundaries to
comply with the following specifications:
(a) Each district shall be formed of contiguous and to
the extent reasonably possible, compact territory, and its
boundary lines shall follow State Senate and House district
lines, ward or precinct lines, to the maximum extent
possible and other boundary lines shall be the center lines
of streets or other well defined boundaries.
(b) Each district shall contain as nearly as is reason-
able, the same population.
(2) The report shal! include a raap and description of the
districts.
(3) The provisions of the 1965 Voting Rights Act shall be
complied with.
(4) The school commissioners shall comply with any other
United States Congressional legislation relating to this subject
matter and in compliance with the United States constitutional
law.
(5) Upon compliance with the above provisions, the
redistricting shov'd become effective.
(6) Such redistricting shall not apply to any regular or
special election held within six months after its becoming
effective. No incumbent member of the Board snali be
deprived of his unexpired term of office because of such
redistricting.
a:
6la
It is further ORDERED, ADJUDGED and DECREED
that the defendants, John L. Moore, individually and in his
official capacity as Probate Judge of Mobile County; John E.
Mandeville, individually and in his capacity as Court Clerk of
Mobile County; Thomas J. Purvis, individually and in his
official capacity as Sheriff of Mobile County, Robert R. Wil-
liams, Dan C. Alexander, Jr., Norman J. Berger, Ruth F.
Drago, Homer L. Sessions, individually and in their official
capacities as School Commissioners of Mobile County, Ala-
bama; the Board of School Commissioners of Mobile County,
Alabama, and Mobile County, Alabama, their agents, servants,
employees, and successors, are hereby ENJOINED from failing
to:
(1) Redistrict as set out above.
(2) Make a hold the elections as redistricted.
The defendant Board of School Commissioners is taxes
with the costs, including attorneys’ fees.
Within 30 days from this date, the attorneys for the
plaintiffs are to file affidavits setting forth their claim for
attorneys’ fees, including hours worked and hourly charges.
The defendant School Board Commissioners are to be sent a
copy of this claim and these defendants may object in writing
within 15 days.
This court retains jurisdiction for the implementation of
this order.
Done, this the 18th day of January, 1977.
VirGiL PITTMAN §$/s/
UNITED STATES
DISTRICT JUDGE
U.S. DISTRICT COURT
SOU. DIST. ALA.
FILED AND ENTERED THIS THE
18th DAY OF JANUARY 1977
WILLIAM J. O’CONNOR, CLERK
62a
RELEVANT DOCKET ENTRIES
OF THE UNITED STATES DISTRICT COURT
IN BROWN V. MOORE
Plaintiffs
Grecory B. STEIN
J.U. BLACKSHER
1407 Davis Avenue
Mobile, Alabama 36603
EDWarb STILL
Suite 601, Title Building
2030 3rd Avenue, North
Birmingham, Alabama 35203
Jack GREENBERG,
JaMES M. Nasrir, III and
CHARLES E. WiLLiaMs, III
Suite 2030, 10 Columbus Circle
New York, New York 10019
ATTORNEYS
Defendants
Moore, MANDEVILLE, PURVIS AND FOR
YEAGER, SMITH AND HAAs
James C. Woop
Assistant County Attorney
1010 Van Antwerp Building
Mobile, Alabama 36602
RALPH KENNAMER
P.O. Box 624
Mobile, Alabama 36601
SCHOOL COMMISSIONERS, WILLIAMS, ALEXAN-
DER, BERGER, DraGo & SESSIONS
ABE PHILIPS— WITHDRAWN 12-21
P. O. Box 8158
Mobile, Alabama 36608
Attorneys for Robert Williams, Dan C.
Alexander, Jr., Norman J. Berger, Ruth
F. Drago, Homer L. Sessions, individ-
ually & in their official capacity, etc.
Messrs. Robert C. Campbell, II], Daniel A.
Pike, and Frank G. Taylor,
The Plaza West Building
800 Downtowner Blvd.
Mobile, Alabama 36609
Date
6/9/75
7/8/75
7/15/75
8/29/75
9/26/75
11/21/75
11/28/75
12/15/75
12/17/75
63a
Proceedings
Complaint filed, Ips
Motion to Dismiss, with brief, filed by defend-
ants Moore, Mandeville, Purvis, Yeager,
Smith and Haas, with further Motion to
Strike, Ajr
Motion to Dismiss, with brief, and Motion to
Strike, filed by defendants Williams, Alexan-
der, Berger, Drago and Sessions, Ajr
Motion to Dismiss and Motion to Strike, filed by
defendants Moore, et al and
Motion to Dismiss and Motion to Strike, filed by
defendants Williams, et al, Submitted without
argument, Ajr
Status Report. AMENDMENT TO STANDARD PRE-
TRIAL OrDER and Discovery EXTENDED TO
AND INCLUDING Nov. 10, 1975, and naming
of witnesses on or before Nov. 25, 1975.
Copy of this Amendment to Standard Pre-
Trial Order mailed to the Attorneys of Record
on 9-30-75 ( W.J.O. )
OrpDER entered that cause of action against
Robert R. Williams, Dan C. Alexander, Jr.,
Norman J. Berger, Ruth F. Drago and Homer
L. Sessions, individually & in their official
capacity as School Commissioners of Mobile
County, Alabama, is DISMISSED, without prej-
udice; M/E No. 39,409-H; copy mailed to
attorneys on 11/28/75, wet
Status Report. No Problems. Set this case for
Pre-Trial the same date as Civil 75-297, Bol-
den v. City of Mobile (W.J.O.)
Motion for certification of class filed by plain-
tiffs; referred to Magistrate; notice mailed
attorneys, wet
Appearance of Counsel for plaintiffs filed by
Jack Greenberg, James M. Nabrit, III and
Charles E. Williams, III Ajr
Date
12/29/75
1/7/76
1/8/76
1/13/76
1/14/76
1/19/76
1/29/76
2/2/76
2/4/76
2/4/76
2/5/76
2/10/76
64a
Proceedings
Order entered that defendants’ motion to dis-
miss under 42 U.S.C. Sec. 1973 is DENIED;
defendants’ motion to dismiss under 42
U.S.C. Sec. 1985(3) is GRANTED; defendants’
motion to dismiss under Sec. 1343(4) De-
NIED; defendants’ motion to strike attorneys’
fees and the injunctive relief in Par. V-2 is
DENIED, Min. Entry No. 39647; copy mailed
to Attorneys, Ajr
Answer to complaint filed by defendants Moore,
Mandeville, Purvis, Yeager and Haas, Ajr
Motion to Dismiss Certain plaintiff, Hazel C.
Hill, without prejudice, filed by plaintiffs, Ajr
Preliminary pretrial order for pretrial set the 4th
day of February, 1976, entered by Judge
Pittman, filed copies of order mailed to
attorneys on 01-07-76 by Mrs. Madge
Andress, grs
Motion to Dismiss Certain plaintiff (Hazel C.
Hill), without prejudice, filed by plaintiffs
January 8, 1976 GRANTED, notices mailed Ajr
Order entered that plaintiffs may maintain this
action as a class action, Minute Entry No.
39,815; copies mailed to attorneys, Ajr
Motion for preliminary injunction filed by plain-
tiffs, jb
Appearance of Ralph Kennamer as attorney for
defendants filed, wet
Joint Pretrial Document filed by parties, wet
Motion to add party defendant filed by plain-
tiffs; referred to Judge Pittman, wet
Case PRE TRIED ON 4 Feb. 1976 by JupGE
VIRGIL PITTMAN ( WJO)
OrDER entered on pretrial hearing, copies
mailed to attorneys by Mrs. Madge Andress,
grs
WITHDRAWAL of plaintiffs’ motion for prelimi-
nary injunction filed by plaintiffs Leila G.
Brown, et al. mpc
nue @
we
Date
2/10/76
2/25/76
2/25/76
3/1/76
3/8/76
3/12/76
3/19/76
65a
Proceedings
OrpDER entered as follows:
1. Plaintiffs’ motion to join County of Mobile,
Alabama as party defendant is GRANTED
as to plaintiffs’ claims predicated on 42
USC 1973 and is DENIED as to plaintiffs’
= predicated on 42 USC 1983 and
1985.
2. Clerk is directed to cause service of process
on said defendant. Such service shall be
accompanied with copies of answer of
certain of individual defendants filed on
1/7/76 (File Doc. No. 76), the motion
to join Mobile County as a party defend-
ant filed by plaintiffs on 2/4/76 (File
Doc. No. 90), and a copy of this order.
3. Clerk is further directed to mail a copy of
this order together with other documents
described above to Maury Friedlander,
Attorney for the County of Mobile.
Above entry is in M/E No. 40,012; copy mailed
to attorneys on 2/12/76, wet.
Motion to dismiss filed by defendant, brief
attached, jb
Specification of racially discriminatory acts filed
by plaintiffs
Motion to Add Parties Defendant, filed by the
plaintiff, Ajr
Motion to Add Parties Defendant, filed by the
defendants March 1, 1976 GRANTED; no-
tices mailed Ajr
Status Report, no problems. Judge Pittman to
set date for trial
Motion to dismiss, filed by defendant on Feb.
25, 1976 submitted without argument, Ajr
Following documents given to USM for service
on each of eleven (11) defendants as set out
after list of documents:
1. Clerk’s notice of Judge Pittman’s decisions
granting plaintiffs’ motion to add parties
defendant - March 8, 1976.
66a
Date Proceedings
2. Motion to add parties defendant & attach-
ments filed Mar. 1, 1976.
Pretrial Order, Feb. 4, 1976.
4. Joint pretrial document, filed on or about
January 28, 1976.
5. Order on motion to dismiss entered
Cs ea 29, 1975, Minute Entry No.
647.
6. Motion to dismiss filed on or about July 8,
1975.
Defendants to be served with above described
documents are:
BOARD OF SCHOOL COMMISSIONERS OF Mo-
BILE COUNTY,
ROBERT R. WILLIAMS, Individually,
ROBERT R. WILLIAMS, Official capacity,
Dan C. ALEXANDER, JR., Individually,
Dan C. ALEXANDER, JR., Official capacity,
NorMAN J. BERGER, Individually,
NorMAN J. BERGER, Official capacity,
RuTH F. DraGo, Individually,
RUTH F. DraGo, Official capacity,
HoMER L. SEssIons, Individually,
HoMER L. Sessions, Official capacity, wet
3/23/76 Return of USM filed showing service of those
documents as listed in entry of 3/19/76 above
on all defendants, Ips
3/30/76 Motion to Dismiss, filed by the defendant Mo-
bile County on Feb. 25, 1976 and submitted
March 12, 1976, DENIED; notices mailed Ajr
6/22/76 Qualifications of expert witness filed by defend-
ants, with attachment
6/28/76 Witness list of defendants, John L. Moore, John
E. Mandeville, Thomas J. Purvis, Howard E.
Yeager and G. Bay Haas, filed, grs
a
ene a aan ee at tale 1 aS
™
~~
NC ee ee ee See Seen
—
Date
6/29/76
7/6/76
7/8/76
7/9/76
7/12/76
7/12/76
7/12/76
7/13/76
7/14/76
7/15/76
"7/20/76
67a
Proceedings
Plaintiffs’ witness list filed, wet
Objections to qualifications of defendants’
expert witness, filed by plaintiffs, wet
Motion for continuance filed by defendants,
Mobile County School Commissioners, Ajr
Motion for continuance, filed by defendants,
Mobile County School Commissioners DE-
NIED, notices mailed Ajr
— witness list filed by defendants,
yr
Motion for Default Judgment, filed by plaintiffs,
Affidavit for entry of default by clerk, filed by
plaintiffs, Ajr
Second motion for continuance filed by defend-
ants, Mobile County School Commissioners,
Taken to Judge Pittman by Mr. Philips, jb
ANSWER to Amended Complaint filed by De-
fendants, the Board of Schoo] Commissioners
of Mobile County and Robert R. Williams,
Dan C. Alexander, Jr., Norman J. Berger,
Ruth F. Drago and Homer L. Sessions, grs
Response to Motion for Default Judgment, filed
by defendant, Board of School Commission-
ers of Mobile County, Ala., Ajr (DENIED
orally )
Supplemental witness list filed by defendants
Moore, MANDEVILLE, PURVIS, YEAGER and
Haas, jb
Amendment to Standard Pretrial Order and
DISCOVERY EXTENDED TO AND INCLUDING
July 26, 1976, AND NAMING OF WITNESSES ON
Ok BEFORE July 30, 1976. Copy of this
Amendment mailed on 15 July 1976 to
Messrs. Blacksher, Still, Greenberg, Wood,
Kennamer, and Philips (W.J.O.)
Preliminary pretrial order for pretrial set the
2nd day of AUGUST, 1976, entered by Judge
Pittman filed, copies of order mailed to
attorneys on 7/15/76 by Mrs. Madge
Andress, grs
Date
7/30/76
7/30/76
8/2/76
8/9/76
8/26/76
9/2/76
9/2/76
9/2/76
9/3/76
9/3/76
9/7/76
68a
Proceedings
Supplemental joint pretrial document relevant
to MosiLE CounTy SCHOOL BoarbD, filed by
the parties, grs
List of witnesses filed by defendant, Ajr
Case PrE TRIED ON 2 AuGust 1976 By JUDGE
VirGiL PitTMaAN (WJO)
OrperR entered on pretrial hearing, copies
mailed to attorneys by Mrs. Madge Andress,
grs
First Response to order on pre-trial hearing
filed by defendant Boarp Or ScHooL Com-
MISSIONERS OF MOBILE COUNTY, wet
Motion to Sever and to Dismiss or Continue
filed by defendant Board of School Commis-
sioners of Mobile County mpc
Response to Order on Pretrial Hearing filed by
defendant Board of School Commissioners
relating to submission to the Court of pro-
posed reapportionment plan
DEFENDANTS’ PROPOSED PLAN for Commission
Districts filed, with Map attached, mpc (in
separate red folder, with other plans)
PLAINTIFFS’ PROPOSED REAPPORTIONMENT
PLANS for Mobile County filed with two maps
as Exhibits (placed in red folder with other
Plans) mpc
Motion to Strike and to exclude testimony and
exhibits, filed by Plaintiffs, in reference to
defendants’ First Response to Order on Pre-
trial Hearing, mpc
ORDER entered on motions of Board of School
Commissioners, filed September 2, 1976,
DENYING defendant’s motion to sever;
DENYING defendant’s motion to dismiss;
and DENYING said defendant’s motion to
continue in order to give the Legislature of the
State of Alabama an opportunity to act on a
proposed redistricting; (Minute Entry No.
41649). Attorneys Blacksher, Menefee,
Breet er a
Se eS ee ee ee a
Date
9/9/76
9/9/76
9/9/76
9/9/76
9/9/76
9/9/76
69a
Proceedings
Kennamer, and Abe Philips notified by tele-
phone; copies of order mailed to all attorneys
of record on 9/7/76 mpc
Response to Plaintiffs Motion to Strike & to
exclude testimony
MoTION To RECONSIDER the Court’s Order of
Sept. 7, 1976 denying motion of defendant
Board of School Commissioners to Sever,
denying motion of defendant Board of School
Commissioners to Dismiss, and denying mo-
tion of defendant Board of School Commis-
sioners to Continue trial of case, filed in open
Court, and DENIED by the Court.
MoTION To Stay pending Certification for
Interlocutory ‘iy I and Pending Inter-
locutory Appeal, filed by defendants Board of
School Commissioners, in open Court, and
DENIED by the Court.
Motion to Stay pending Appeal, filed by defen-
dants Board of School Commissioners, in
open Court, and DENIED by the Court.
Motion to Certify for immediate Interlocutory
Appeal the prior Order of this Court entered
on Sept. 7, 1976, denying defendant Board of
School Commissioners’ Motion to Dismiss,
denying the Defendants’ Motion to Sever and
denying the Defendants’ Motion for a Contin-
uance, filed in open Court by Defendants, the
Board of School Commissioners, and _ its
members, and DENIED by the Court.
Notice OF APPEAL filed in open Court by the
Defendants, the Board of School Commis-
sioners of Mobile County, and its members,
individually and in their official capacities as
the School Commissioners of Mobile County,
from the Order of the Court entered on Sept.
7, 1976 denying Defendants’ Motion to Sever,
denying the Defendants’ Motion to Dismiss
and denying the Defendants’ Motion to Con-
tinue.
Date
9/9/76
9/13/76
9/13/76
9/14/76
9/15/76
70a
Proceedings
(Each of the Court’s rulings denying the above
five(5) motions was announced to attorneys
for the parties in open Court. )
Trial by Court begun, witnesses sworn and
examined on behalf of plaintiff, exhibits
offered in evidence, trial RECESSED until
Friday, September 10, 1976. (Minute Entry
No. 41,663-A). mpc
Trial by Court resumed, witnesses further exam-
ined on behalf of plaintiff, exhibits offered in
evidence, trial RECESSED until Monday,
September 13, 1976. (Minute Entry No.
41,668.) mpc
PROPOSED PLANS OF DEFENDANT BOARD OF
SCHOOL COMMISSIONERS OF MOBILE COUNTY
filed, mpc (in red folder with other Plans).
mpc
Trial by Court resumed. Witnesses further
examined by Plaintiffs; exhibits offered in
evidence; trial RECESSED until Tuesday, Sept.
14, at 9:00 A.M. (Minute Entry No.
41,684A).
Withdrawal of Notice of Appeal from order
entered on 9/7/76 denying defendants’ mo-
tion to sever, denying defendants’ motion to
dismiss and denying defendants’ motion to
continue filed by defendants BoarD OF
SCHOOL COMMISSIONERS, ET AL; copies mailed
to attorneys and to Clerk, CCA by letter of
transmittal, Ips
TRIAL OF CAUSE BY COURT RESUMED. Witnesses
further examined on behalf of Plaintiffs,
exhibits offered, and trial RECESSED until
Wednesday, September 15, 1976 at 9:00 A.M.
(Minute Entry No. 41,691-C). mpc
Continuation of Deposition of Doctor CHARLES
L. COTRELL filed °
TRIAL OF CAUSE BY COURT RESUMED. Witnesses
further examined on behalf of plaintiffs,
exhibits offered, and at 11:40 A.M., plaintiffs
Date
9/16/76
9/17/76
9/21/76
9/30/76
10/12/76
10/14/76
10/20/76
10/21/76
12/9/76
Tla
Proceedings
conditionally rest their case. One witness
examined on behalf of defendants, exhibits
offered in evidence and trial of case RECESSED
until Sept. 16, 1976, at 9:00 o’clock A.M.
(Minute Entry No. 41712) mpc
TRIAL OF CAUSE BY COURT RESUMED. Witnesses
further examined and exhibits offered on be-
half of defendants Moore, etc. and said de-
fendants conditionally rest. Witnesses exam-
ined on behalf of defendant School Board,
and trial RECESSED to Friday, Sept. 17, 1976
at 9:00 A.M. (Minute Entry No. 41,728-B)
mpc
TRIAL BY COURT RESUMED. Witnesses further
examined on behalf of defendant Board of
School Commissioners. At 3:15 P.M. all
parties rest. Post trial arguments of counsel
are heard, and trial RECESSED to a later date
for arguments on the Plans submitted by the
parties. (Minute Entry No. 41,737-C) mpc
SUBMISSION OF PoST-TRIAL EVIDENCE filed by
defendants, from the Mobile County Engi-
neer, in letter form, pursuant to instruction
from trial judge mpc
Plaintiffs’ response to defendants’ submission of
post-trial evidence filed, grs
Statistical Data filed by defendants, wet
Submission of population estimates for plans of
all parties filed by plaintiffs, wet
Motion for alternative relief, with brief attached,
filed by plaintiffs, wet
Brief re. Gerrymandering filed by defendants,
mpc
Document entitled “As to Court SUGGESTED
PLAN FOR SINGLE MEMBER Districts” filed
by Defendants, mpc
Opinion and order entered as to defendants
BOARD OF SCHOOL COMMISSIONERS OF MOBILE
COUNTY, ETC.:
Date
12/10/76
12/13/76
12/17/76
72a
Proceedings
1. That there shall be elected in Nov. 1978
school commissioners for Districts 3 & 4;
there shall be elected in Nov. 1980
school commissioners for Districts 2 & 5;
and there shal! be elected in Nov. 1982 a
school commissioner from District 1.
2. That whenever there shall be a change in
any of the 5 districts heretofore estab-
lished, evidenced by a federal census
ublished following a federal census
ereafter taken, there shall be a
reapportionment of the districts in the
manner as more fully set out in order.
3. Further ordered that defendants as more
fully set out in order are ENJOINED from
failing to: (1) Redistrict as set out in
order. (2) Make & hold the elections as
redistricted.
Defendant BOARD OF SCHOOL COMMISSIONERS
AND MOBILE COUNTY are taxed with costs,
including attorneys’ fees.
Within 30 days from this date, attorneys for
plainuffs are to file affidavits setting forth
their claim for attorneys’ fees. Defendants
School Board and Mobile County are to be
sent copy of claim and defendants may object
in writing within 15 days. Court retains
jurisdiction; M/E No. 42,403; copy given to
attorneys Larry Menefee, Abe Philips &
Ralph Kennamer (copy also given attorney
George Stone & The School Board); copy
nailed attorneys Edward Still & Jack Green-
berg; wet
Plaintiffs’ re-analysis of plans for School Board
and County Commission filed, wet
ORDER and decree amending order and decree
dated 12/9/76 as more set out in order; M/E
No. 42,431; copy mailed ALL attorneys on
12/14/76, wet
Plaintiffs’ Motion for Award of Costs and
Attorneys’ fees, filed Ajr
Date
12/21/76
12/27/76
12/27/76
12/27/76
12/30/76
12/30/76
1/4/77
73a
Proceedings
Motion for Re-Hearing of cause, filed by Ros-
ERT R. WILLIAMS, Dan C. ALEXANDER, JR.,
NorMAN J. BERGER, RUTH F. DraGo, HOMER
L. SESSIONS, ind. and in capacity as School
Commissioners of Mobile County, Ala. Ajr
(referred to Judge Pittman) OraL ARGUMENT
REQUESTED
Withdrawal as Counsel of Record, filed by Abe
Philips, Ajr
Notice of Appearance of Counsel for defendants
WILLIAMS, ALEXANDER, BERGER, DraGo and
SESSIONS filed by Daniel A. Pike for the firm
of Sintz, Pike, Campbell & Duke Ajr
Motion to Strike, filed by the defendant Mobile
County, Ajr (referred to Judge Pittman )
ORDER entered that attorneys for plaintiffs & for
COUNTY COMMISSIONER are requested to sub-
mit additional proposed ype for districting
of county. Plans are to submitted on or
before 1/3/77; M/E No. 42,528; attorneys
advised by phone of order; on 12/29/76 copy
of order mailed attorneys for plaintiffs and
attorneys for defendants COUNTY COMMIS-
SIONERS, wet
Order entered extending time from January 3,
1977 to January 6, 1977 within which to file
plans, See M/E 42,534-B copies mailed attys
Motion for Re-Hearing filed by defendants
SCHOOL BOARD COMMISSIONERS on 12/21/76
is argued & TAKEN UNDER SUBMISSION; wet
Order setting aside submission as to the matter
of districting plans, See M/E 42,573, (je)
Motion for Re-Hearing filed by ROBERT R.
WriaMs, DaN C. ALEXANDER, JR., NORMAN
J. BERGER, RuTH F. Draco, Homer L. SEs-
SIONS, indiv. & in their official capacity as
School Commissioners of Mobile County,
Alabama, on 12/21/76 is DENIED; notice of
ruling mailed attorneys, wet
Date
1/5/77
1/18/77
1/20/77
1/21/77
74a
Proceedings
Joint Proposal of Plan for the Mobi
Commission filed; wet suited
ORDER of judgment entered in favor of plaintiffs
and against defendants as is more fully set out
in order. Defendant BoarD oF SCHOOL Com-
MISSIONERS 1s taxed with costs, including
attorneys’ fees. Attorneys for plaintiffs to
submit affidavits within 30 days. Def.
SCHOOL BOARD COMMISSIONERS to be sent
copy of pltfis. claim & def. may object in
writing within 15 days. Court retains jurisdic-
tion for implementation of this order; M/E
No. 42,710; wet é‘
Motion filed 20 Jan. 1977 by the Defendant
Robert R. Williams, Dan C. Alexander, oy -
al., for Protective Order, with Certificate of
tte oe cao of this Motion for-
d on an. to Jud
he agdon). WIG udge Pittman for
Plaintiffs’ Response to defendant School Com-
— Motion for Protective Order filed
Jr )
Order entered that the plaintiffs will be required
. pay — — for travel, etc. in
King depositions in Birmingham, Alab :
Minute Entry No. 42,755 an” ~
Order entered granting the immediate right to
either party to take an immediate appeal; that
this decree is a final judgment as to defen-
dants, School Commissioners and the time
eg gy ee 4( oAlgg 4 shall apply as of
of this order, Mi
42,754 Air Minute Entry No.
|
7Sa
[Caption Omitted in Printing}
U.S. DISTRICT COURT
SOU. DIST. ALA.
PILED IN CLERK'S OFFICE
JUN. 9, 1975
WILLIAM J. O'CONNOR, CLERK
COMPLAINT
I.
Jurisdiction
Jurisdiction of this Court is invoked pursuant to 28 U.S.C.
§§ 1330 and 1343. The amount in controversy exceeds
$10,000.00 exclusive of interest and costs. This is a suit in
equity arising out of the Constitution of the United States, the
First, Thirteenth, Fourteenth and Fifteenth Amendments, and
42 U.S.C. Secs. 1973, 1983 and 1985 (3).
Class Action
Plaintiffs bring this action on their own behalf and on
behalf of all other persons similarly situated pursuant to Rule
23 (a) and 23 (b)(2), Federal Rules of Civil Procedure. The
class which plaintiffs represent is composed of all black citizens
of Mobile County, Alabama. All such persons have been, are
being, and will be adversely affected by the defendants’ prac-
tices complained of herein. There are common questions of law
and fact affecting the rights of the members of this class, who
are, and continue to be, deprived of the equal protection of the
laws because of the election system detailed below. These
persons are so numerous that joinder of all members is
impracticable. There are questions of law and fact common to
plaintiffs and the class they represent. The interests of said class
are fairly and adequately represented by the named plainuffs.
The defendants have acted or refused to act on grounds
generally applicable to the class, thereby making appropnate
final injunctive relief and corresponding declaratory relief with
respect to the class as a whole.
76a
Plaintiffs
A. Plaintiff Leila G. Brown is a black citizen of Mobile
County, Alabama, over the age of 21 years, residing in the City
of Theodore.
B. Plaintiff Mary Louise Griffin Cooley is a black citizen of
Mobile County, Alabama, over the age of 21 years.
C. Plaintiff Joannie Allen Dumas is a black citizen of
Mobile County, Alabama, over the age of 21 years, residing in
the City of Mount Vernon, Alabama.
D. Plaintiff Elmer Joe Daily Edwards is a black citizen of
Mobile County, Alabama, over the age of 21 years.
E. Plaintiff Rosie Lee Harris is a black citizen of Mobile
County, Alabama, over the age of 21 years, residing in the City
of Saraland, Alabama.
F. Plaintiff Hazel C. Hill is a black citizen of Mobile
County, Alabama, over the age of 21 years, residing in the City
of Mobile, Alabama.
G. Plaintiff Jeff Kimble, is a black citizen of Mobile
County, Alabama, over the age of 21 years.
H. Plainuff Frances J. Knight is a black citizen of Mobile
County, Alabama, over the age of 21 years, residing in the City
of Theodore, Alabama.
I. Plaintiff John W. Leggett is a black citizen of Mobile
County, Alabama, over the age of 21 years.
J. Plaintiff Janice M. McAuthor is a black citizen of Mobile
County, Alabama, over the age of 21 years, residing in the City
of Saraland, Alabama.
IV.
Defendants
A. Defendant JOHN L. MOORE is the Probate Judge of
Mobile County. Defendant JOHN E. MANDEVILLE is the
Circuit Clerk of Mobile County. Defendant THOMAS J.
i ——
77a
PURVIS is the Sheriff of Mobile County. These three officers,
or persons appointed in their stead by the Register in Equity
serve as the appointing Board for election officials (Title 17,
Sections 120-26, Code of Alabama (1958) ) and as the Board of
Election Supervisors to certify election results (id., Sections 139,
139(1), 199, 209, 344).
B. Defendants HOWARD E. YAEGER, COY SMITH
AND G. BAY HAAS are members of the Mobile County
Commission.
C. Defendants ROBERT R. WILLIAMS, DAN C. ALEX-
ANDER, JR., NORMAN J. BERGER, RUTH F. DRAGO,
AND HOMER L. SESSIONS are members of the Board of
School Commissioners of Mobile County.
V.
Nature of Claim
A. The Mobile County Commission is the general super-
visory agency of government for Mobile County. It holds the
legislative power granted to counties and performs certain
executive functions as well.
B. The County Commission consists of three (3) mem-
bers, who run for numbered places and are elected at large.
The only restriction, other than age, is that commissioner
number one must be a resident of the City of Mobile and
commissioner number two must be a non-resident. Act 181,
1957 Reg. Sess. All members are elected at the same time.
C. The Board of School Commissioners of Mobile County
is composed of five members who are elected at large to six
year terms. Two members were elected in 1970, three in 1972,
two in 1974.
D. The City of Mobile has a population of 190,026, or
about 60% of the County population (317,308). 1970 Census
of Population, Vol. 1, Part 2, Table 10.
E. Mobile County has a black population of 102,383, or
approximately 32% of the total. Of this total, 88% (88,361 ) live
in the cities of Mobile and Prichard, which have only 73% of
the total population of the county.
78a
The Black population for each city is as follows:
# of black % black
a 67,356 35.4
| E ERRE Te ea 21,005 50.5
F. According to the 1970 Census, 257,816 people (or 81%
of the total population) live in the urbanized area in and
around Mobile. 1970 Census of Population, Vol. 1, Part 2,
Table 12.
G. The present system of electing members of the Mobile
County Commission discriminates against black residents of
Mobile and Prichard in that their concentrated strength is
diluted and minimized by the larger white majonty in other
parts of the county.
H. The present system of electing members of the Board
of School Commissioners of Mobile County discriminates
against black residents of Mobile and Prichard in that their
concentrated strength is diluted and minimized by the larger
white majority in other parts of the county.
I. The present system of electing members of the Board of
Schoo] Commissioners of Mobile County discriminates against
the rural interests in the county by submerging their local
strength in the county-wide urban majority.
VI.
Plaintiffs in the class they represent have no plain, ade-
quate or complete remedy at law to redress the wrongs alleged
herein, and this suit for a permanent injunction is their only
means of securing adequate relief. Plaintiffs and the class they
represent are now suffering and will continue to suffer irrepa-
rable injury from the unconstitutional election system described
herein.
WHEREFORE, plaintiffs respectfully pray this Court to
advance this case on the docket, order a speedy hearing at the
earliest practicable date, cause this case to be in every way
expedited and upon such hearing to:
79a
1. Grant plaintiffs and the class they represent a declara-
tory judgment that the election system complained of
herein violate the First, Thirteenth, Fourteenth and
Fifteenth Amendments to the Constitution of the United
States and 42 U.S.C. §§ 1973, 1983 and 1985 (3).
2. Grant plaintiffs and the class they represent an order
enjoining the defendants, their agents, successors,
attorneys and those acting in concert with them and at
their direction from holding, supervising, or certifying the
results of any election for the County Commission or the
Board of School Commissioners of Mobile County under
the present election system.
3. Order the reapportionment of the County Commission
and Board of School Commissioners of Mobile County so
that the voting strength of black citizens is not diluted,
minimized or canceled out.
4. Award plaintiffs and the class they represent their costs
in this action including an award of reasonable attorneys’
fees.
5. Grant such other and further equitable relief as the
Court may deem just and proper.
CRAWFORD, BLACKSHER & KENNEDY
1407 Davis AVENUE
MOBILE, ALABAMA 36603
By:
J. U. BLACKSHER
EDWARD STILL, Esq.
321 FRANK NELSON BUILDING
BIRMINGHAM, ALABAMA 35203
Attorneys for Plaintiffs
80a
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEILA G. BROWN, et al.,
Plaintiffs,
v. CIVIL ACTION
No. 75-298-P
JOHN L. MOORE, et al.,
Defendants.
ORDER
The plaintiffs have advised the court that the Legislature
has enacted a new system of electing members of the Board of
School Commissioners of Mobile County, and the defendants,
Robert R. Wiliams, Dan C. Alexander, Jr., Norman J. Berger,
Ruth F. Drago, and Homer L. Sessions, who have been made
defendants individually and in their official capacity as School
Commissioners of Mobile County, Alabama, should be dis-
missed as defendants and the cause of action against them
dismissed on the plaintiffs’ motion, without prejudice.
It is therefore ORDERED, ADJUDGED and
DECREED that said defendants, and the cause of action
against them as set out in the complaint, are hereby DIS-
MISSED, without prejudice.
Done, this the 21st day of November, 1975.
VIRGIL PITTMAN §$/s/
UNITED STATES
DISTRICT JUDGE
U.S. DISTRICT COURT
SGU. DIST. ALA.
FILED AND ENTERED THIS THE
21st DAY OF NOVEMBER 1975
WILLIAM J. O'CONNOR, CLERK
8la
{Caption Omitted in Printing]
U.S. DISTRICT COURT
SOU. DIST. ALA. |
FILED IN CLERK S OFFICE
Dec. 15, 1975
WILLIAM J. O CONNOR, CLERK
PLAINTIFFS’ MOTION FOR
CERTIFICATION OF CLASS
Come now the Plaintiffs and move the Court to certify
them as representatives of the class of black citizens of Mobile
County, Alabama. There is now adequate evidence shown by
the pleadings and discovery that:
1. The class is so numerous that joinder of all
members of the class is impractical.
2. There are questions of fact and law common to all
members of the class.
3. The named Plaintiffs are typical of the class insofar
as their claims in this action and would fairly and adequat-
ely represent the interests of the class.
4. The actions of the Defendants in perpetuating the
governmental structure of representation attacked in this
action are generally applicable to all members of the class,
thereby making appropriate final injunctive and declara-
tory relief.
Submitted by:
Edward Still
601 Title Building
Birmingham, Alabama 35203
205/323-6171
James H. Blacksher
Gregory B. Stein
1407 Davis Avenue
Mobile, Alabama 36603
Attorneys for Plaintiffs
82a
STRICT COURT FOR
IN THE UNITED STATES DI
THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEILA G. BROWN, et al.,
laintiffs,
sad v. CIVIL ACTION
No. 75-298-P
JOHN L. MOORE, et al.,
Defendants.
ORDER ON MOTION TO DISMISS
The plaintiffs, black citizens of the County of Mobile,
to bring this action as a class action on wood of oe hee
imilarly situated,
behalf of all other black persons sim an
s Rule 23(a) and Rule 23(b)(2), Federal Rules of Civil
Procedure.
It is alleged that they, and all other such persons, oo
been, are being, and will be adversely affected “ polo ie .
, i f, to wit, they are and co
ants’ practices complained o * bed
f the laws because o
be deprived of equal protection 0 aus Sva
County Commissioner
at large system of the ounty |
tr places. It is claimed this discriminates against black
ident of Mobile and . eee
ad in that their concentrated voting strength is “diluted
nd cancelled out by the white majority.
; The plaintiffs seek the following relief: (1) a ~ sesame
judgment that the election system violates the First, irene
Fourteenth, and Fifteenth pea ce casi
ited. | ,a :
the United States and 42 U.S.C. §§ .
i joini dants, their agents, etc.
ue an order enjoining the defen
as ee supervising, OF wring? ved ert =
issi obile
election for the County Commission 0 sa
- (3) order the reappo
the present at-large election system “ang
f Mobile County so tha
ment of the County Commission 0 Layttenw?
it! diluted, minimized, or
ting strength of black citizens 1s not
pcan" es (4) award the plaintiffs costs and a reasonable
OR ices can fies
83a
attorney’s fee; (5) grant such other and further equitable relief
as the court may deem just and proper.
Jurisdiction is invoked pursuant to 28 USC
§ § 1331 and 1343.
The motion to dismiss the cause of action stated under 42
U.S.C. § 1985(3) is due to be granted.
In Westberry v. Gilman Paper Co., 507 F.2d 206, 214
(1975), the Fifth Circuit summarized a 1985(3) cause of action
as follows:
“This requires that the complaint show that there was a
conspiracy; that such a conspiracy be for the purpose of
depriving an individual of the equal protection of the laws;
that the co-conspirators acted in furtherance of their
conspiracy, and that the plaintiff was injured in his person
or property or actually deprived of a citizen’s right or
privilege. Second, as the Supreme Court noted in Griffin:
[T]he language of [of 1985(3)] requiring intent to de-
prive of equal protection or equal privileges, and immu-
nities means that there must be some racial or perhaps
otherwise class hased invidiously discriminatory animus
behind the conspirators’ action.””!
Plaintiffs have not set out sufficient allegations of a con-
spiracy to meet this test. They only allege that the election
system discriminates against them. [Complaint IV-E]. There-
fore, insofar as the action is based on 42 U.S.C. § 1985(3), the
complaint fails to state a cause of action and the motion to
dismiss this cause of action as to all defendants in the complaint
is wel] taken and is GRANTED.
The defendants’ motion to dismiss the cause of action
under the Voting Rights Act of 1965, 42 U.S.C. § 1973 is not
well taken and the motion is DENIED as to all defendants.2
'See Griffin v. Breckenridge, 403 U.S. 88.
2See the amendment to the Act approved August 6, 1975:
“Section 401. Section 3 of the Voting Rights Act of 1965 is amended
by striking out ‘Attorney General’ the first three times it appears and
inserting in lieu thereof the following ‘Attorney General or, an
aggneved person.” U.S. Code Congressional and Administrative
News, P.L. 94-73, 89 Stat. 404.
84a
Therefore, under 28 U.S.C. § 1343(4), this court has
jurisdiction of all defendants.
Since this court has jurisdiction under § 1343(4), it is
unnecessary to discuss the jurisdictional issue under 28 U.S.C.
§ 1331.3 Therefore, motion of defendants as to the cause of
action under § 1973 and the attack of the jurisdiction as to
§ 1343(4) is not well taken and is hereby DENIED.
The defendants’ motion to strike attorneys’ fees and the
injunctive relief prayed for in paragraph V-2 is DENIED.4
Done, this the 29th day of December, 1975.
VIRGIL PITTMAN § /S/
UNITED STATES
DISTRICT JUDGE
U.S. DISTRICT COURT
SOU. DIST. ALA.
FILED AND ENTERED THIS THE
29TH DAY OF DECEMBER, 1975
WILLIAM J. O'CONNOR, CLERK
3 The complaint alleges an amount in controversy of $10,000 or
more, but briefs claim the jurisdictional amount is based on a $10,000
loss to defendants rather than to the plaintiffs. For a good discussion
of the mght to proceed under § 1331 with less than the $10,000
jurisdictional amount, see Cortright v. Resor, 325 F. Supp. 797 (D.C.
N.Y. 1971) at p. 808. The case was reversed for other reasons.
“See the amendment to the Act approved August 6, 1975.
“Section 402. Section 14 of the Voting Rights Act of 1965 is amended
by adding at the end thereof the following new subsection: (e) In any
action or proceeding to enforce the guarantees of the fourteenth or
fifteenth amendment, the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney’s
fee as part of these costs.” Supra, footnote 2.
|
4
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:
aN Unreal Cate!
85a
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
U.S. DISTRICT COURT
SOU. DIST. ALA.
FILED IN CLERK’S OFFICE
JAN. 13, 1976
WILLIAM J. O'CONNOR, CLERK
LEILA G. BROWN, et al.,
Plaintiffs,
V. CIVIL ACTION
No. 75-298
JOHN L. MOORE, et al.,
Defendants.
PRELIMINARY PRETRIAL ORDER
You are hereby ORDERED to confer with opposing
counsel on or before January 28, 1976, and together prepare in
writing and file with the court not lesss than 24 hours prior to
the pretrial set on the 4th day of February, 1976, in this cause,
in a JOINT DOCUMENT, the following:
FOR THE PLAINTIFF
1. A brief statement of the cause of action for each count
which includes the theory of the count.
2. A brief summary of plaintiff's contentions of facts in
support of his cause(s) of action.
FOR THE DEFENDANT
1. A brief statement of the defense(s) including the theory
of each defense.
2. A brief summary of defendant’s contentions of facts in
support of his defense(s).
86a
FOR THE INTERVENOR(S), THIRD
PARTY PLAINTIFF(S), [DEFENDANTS], ETC.
1. A brief statement of your theory of interest, cause(s) of
action, defense(s), etc.
2. A brief summary of facts in support of your legal
theories.
Each of the parties will present to opposing counsel at the
conference the matters set out above for incorporation in a joint
document.
FOR ALL PARTIES
In addition, the joint document is to include the following:
1. All admitted or uncontested facts.
2. Each party’s brief statement of contested facts.
3. Each party’s statement of contested legal issues.
All of the above is to be incorporated in one document
which is to be signed by all attorneys prior to the filing.
Done, this the 7th day of January, 1976.
VIRGIL PITTMAN §$/S/
UNITED STATES
DISTRICT JUDGE
ce: J. U. Blacksher
Edward Still, Birmingham
James C. Wood
Penny ae
Me oleae nN ane a Ba be! pa ROA ail
cee Se aes Seer EY
i Re ee ea eee bee ne
oe es
See re ee nt) ee a
87a
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
U.S. DIST. COURT
SOU. DIST. ALA.
FILED AND ENTERED THIS THE
19TH DAY OF JANUARY, 1976
MINUTE ENTRY NO. 39815
WILLIAM J. O'CONNOR, CLERK
BY
DEPUTY CLERK
LEILA G. BROWN, et al.,
Plaintiffs,
V.
CIVIL ACTION
No. 75-298-P
JOHN L. MOORE, et al.,
Defendants.
ORDER
The plaintiffs have filed a motion for an order certifying
that they may maintain this action as a class action under Rule
23(b)(2) of the Federal Rules of Civil Procedure.
The Court having considered the motion, oral argument
and briefs of the parties certifies that the plaintiffs may maintain
this action as a class action.
The plaintiff class for the purposes of injunctive relief
under Rule 23(b)(2) F.R.Civ.P. is defined by the Court as all
black persons who are now citizens of Mobile County, Ala-
bama.
The Court finds that this class action complies with the
requirements of Rule 23(a) and (b)(2) F.R.Civ.P. and that
the named plaintiffs have the standing to raise the issues for the
purpose of injunctive relief.
DONE at Mobile, Alabama, this 19th day of January,
1976.
VirRGIL PITTMAN § /Ss/
UNITED STATES
DISTRICT JUDGE
88a
[Caption Omitted in Printing ]
U.S. DISTRICT COURT
SOU. DIST. ALA.
PILED IN CLERK’S OFFICE
MAR. 1, 1976
WILLIAM J. O'CONNOR, CLERK
MOTION TO ADD PARTIES DEFENDANT
| Plainuffs move the Court for an order making Robert
Williams, Dan C. Alexander, Norman J. Berger, Ruth F. Drago
and Homer L. Sessions, individually and in their official
capacities as School Commissioners of Mobile County, Ala-
bama, and the Board of School Commissioners of Mobile
County, qua School Board, as parties defendants in this action,
directing service of process upon them, allowing the attached
Proposed Amended Complaint and setting this cause for imme-
diate pretrial; and for grounds therefor show:
I. The above named individuals and officials were
parties defendants to this action until this Court, on
November 21, 1975, on information supplied by plaintiffs
that the Legislature had enacted a system of single-member
districts for electing the members of the School Board,
ig the causes of action against them without prej-
udice.
2. On February 17, 1976 judgment was rendered in
Board of School Commissioners of Mobile County, Alabama
v. John L. Moore, et al., Civil Action No. 96,204 in the
Circuit Court of Mobile County finding that the above
mentioned Act of the Legislature “is invalid and uncon-
stitutional” and was declared void. This action was
instituted by the proposed defendants. A copy of the
subject Complaint and Judgment is attached hereto.
3. The aforemen
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