Record and brief — Hathorn v. Lovorn

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UOINed

Jtiice- Supreme Court, U.S.

81 “451 kFiLED

AUG $1 1981

No. 81- ALEXANDER L. STEVAS,

——_—_—_———— SSS BEE RK

nae

In the Supreme Court of the United States

October Term, 1981

RALPH HATHORN, ET AL.,

Petitioners,

vs.

MRS. BOBBY LOVORN, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

Farr & Mayo

JAMES C. Mayo

(Counsel of Record)

P. O. Box 509

Louisville, Mississippi 39339

DeraAmus, Lewis & TUCKER

FRANK M. DERAMUS

P. O. Box 532

Louisville, Mississippi 39339

Attorneys for Petitioners

——_—— —

E. L. Menpexuatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTIONS PRESENTED FOR REVIEW

1. Whether a State Supreme Court can order non

compliance with the Federal Voters Rights Act of 1965

as Amended, Sec. 5, 42 U.S.C.A. Sec. 1973 c.

PARTIES TO THE PROCEEDING

Petitioners:

Ralph Hathorn, Mayor, City of Louisville

Charles Lawrence, City Clerk

Robert E. Clark, Jr., Alderman

Mike Cournoyer, Alderman

Andy Woods, Alderman

Bobby McWhirter, Alderman

Giles Ward, Alderman

City of Louisville, MS, a Municipal Corporation

Thomas W. Saterfiel, Superintendent, Louisville Mu-

nicipal Separate School District

Paul Younger, Trustee

Kenny Morris, Trustee

Jerry Kemp, Trustee

Veterine Williams, Trustee

Mike Frazier, Trustee

Respondents:

Sammy Carter

Joe Goodin

Mrs. Bobby Lovorn

J. D. Eaves

Prentiss Carter

lll

TABLE OF CONTENTS

Questions Presented for ReEVICW ..0.....cccccccceceeeeeeeeeeeeee

SI Ta TREY SPUIIIIINEE ccnrcnceentecssserecsonscsieteinssineniqumniocianie II

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III IIIT isssd hi enceecha reset ahceiidetebieaepeiniatpaiealeaieigebemiaees 1

(ECE art Ore dee EE OR OTE ee 1

CG Re eae 2

Statement of the Case ........-...-----eeceoeeee ; 2

Reasons for Granting the Writ ............2....2.....-c-ceeeeeeeoeee 3

a et nitedaemaniageenantanl 6

Appendix—

“A” Decision of the Supreme Court of Mississippi Al

“B” Federal Voters Rights Act of 1965 as

Amended, Sec. 5, 42 U.S.C.A. Sec. 1973 ¢ ........ A6

“C” Legally unenforceable Letter from Attorney

General of United States dated March 28,

1980 . - A7

Table of Authorities

Atlantic Coastline R. Co. v. Powe, 283 U.S. 401, 51

RCE PR re REO e Pee eles nese ee Ns One em 6

Lovorn v. Hathorn, 365 So.2d 947 (Miss. 1979), Cert.

denied, 441 U.S. 946, 99 S.Ct. 2167, 60 L.Ed.2d 1049

SSIES cchistsiieninhioshiaiieceserieiiatensamiatcanimantaniesienaeisiities 2

McDaniel, et al. v. Sanchez, et al., 101 S.Ct. 2224 (1981) 4,6

Perkins v. Matthews, 91 S.Ct. 431 (1971) -.......0.22-2.... 5

Mississippi Code of 1972, Sec. 37-7-203 ................--0-0-0-+- 5

42 U.S.C. Sec. 1973 c saiceluale apiasiesiiaiiaiammisbiieieasatinansiapiies 2

Voting Rights Act of 1965, as Amended, Sec. 5 ........ 3, 4, 5,6

No. 81-

In the Supreme Court of the United States

October Term, 1981

RALPH HATHORN, ET AL.,

Petitioners,

vs.

MRS. BOBBY LOVORN, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

Petitioners pray that a writ of certiorari issue to review

the decision of the Supreme Court of Mississippi rendered

on June 3, 1981.

OPINION BELOW

The decision of the Supreme Court of Mississippi is

reported at 399 So.2d 1356 and is appended hereto as

Appendix “A”’.

JURISDICTION

The decision of the Supreme Court of Mississippi was

entered on June 3, 1981, and Rehearing denied on July

8, 1981. This Court’s Jurisdiction is invoked pursuant

to 28 U.S.C. Sec. 1257 (3).

STATUTES INVOLVED

Voting Rights Act of 1965, as Amended, Sec. 5, 42

U.S.C.A. Sec. 1973 c and is appended hereto as Appendix

STATEMENT OF THE CASE

Since 1960, the Board of Trustees of the Louisville

Municipal Separate School District has embraced the entire

County of Winston and is composed of five (5) members:

Three (3) appointed by the governing authorities of the

City of Louisville and two (2) elected by the qualified

electors outside the City.

Respondents sued the Petitioners in the Chancery

Court of Winston County, Mississippi, seeking to change

the method and manner of the selection of Trustees for

the school district and after the Chancellor dismissed Re-

spondents’ initial complaint, the cause was appealed to

the Mississippi Supreme Court and a decision handed down

ordering the change in the Trustees election on January

10, 1979 in the case of Lovorn v. Hathorn, 365 So.2d 947

(Miss. 1979), Cert. denied, 441 U.S. 946, 99 S.Ct. 2167,

60 L.Ed.2d 1049 (1979).

On July 24, 1979, the Chancery Court of Winston

County, pursuant to the mandate of the Mississippi Su-

preme Court, outlined the election procedure. However,

the Chancellor ordered that the election procedures as

decreed be submitted either to the United States Attorney

General or the United States District Court for the District

of Columbia in accordance with 42 U.S.C. Sec. 1973 c.

After additional data was forwarded to the United States

Department of Justice, the Civil Rights Division of the

United States Attorney General’s office advised the Appel-

lees in a letter, dated March 28, 1980, that it objected

to the change in the election procedure and advised the

Petitioners that the changes in the election procedure were

legally unenforceable, a copy of said letter from the United

States Attorney General is appended hereto as Appendix

“o".

After additional hearings, the Chancery Court of Win-

ston County, Mississippi, on September 30, 1980, decreed

that the election would remain in force subject to compli-

ance with the 1965 Voting Rights Act and postponed

the election.

Respondents appealed the decision of the Chancellor

to the Mississippi Supreme Court and the Court reversed

the Chancellor which made the election subject to compli-

ance with the Federal Voters’ Rights Act. On July 8,

1981, the Supreme Court of Mississippi denied the Petition

for Rehearing.

The Supreme Court remanded the case to the Chancel-

lor directing him to conduct the election without regard

to the Voting Rights Act of 1965. On August 4, 1981,

the Chancery Court of Winston County, Mississippi, de-

creed that the election must be held and ordered Respon-

dents to disregard the legally unenforceable letter of the

Attorney General of the United States dated March 28,

1980, and to otherwise ignore Section 5 of the Voting

Rights Act.

REASONS FOR GRANTING THE WRIT

The writ of certiorari should be granted since the

mandate of the Supreme Court of Mississippi requires

the Chancery Court to order the Petitioners to conduct

an election and violate Section 5 of the Voting Rights

Act of 1965, as Amended, even though the Attorney Gen-

eral of the United States has, through its letter of March

28, 1980, which is attached as Appendix “C”, advised

the Petitioners that the change in election procedures and

previous Orders of the Court were legally unenforceable.

On June 1, 1981, the Supreme Court of the United

States in Number 80-180 McDaniel, et al. v. Sanchez, et al.,

101 S.Ct. 2224 (1981), in construing a Commissioner’s Reap-

portionment Plan from Kleberg County, Texas, and affirm-

ing the Fifth Circuit Court of Appeals, 615 F.2d 1023,

held that whenever a covered jurisdiction submits a pro-

posal reflecting the policy choices of the elected repre-

sentatives of the people—no matter what constraints have

limited choices available to them—the preclearance re-

quirement of the Voting Rights Act is applicable even

though the Federal District Court had acted upon the

proposed plan before it had been submitted to the Attorney

General or the United States District Court for the District

of Columbia for preclearance. Even though the Federal

District Court had approved and ordered the redistricting,

the Supreme Court of the United States in McDaniel,

et al., says that preclearance is required in Court ordered

reapportionment.

The pertinent part of the Voting Rights Act as enacted

in 1965 as Amended in 1975 in Section 5 is attached as

Appendix “B” and we respectfully submit that in the

opening portion of the attached Appendix “B”, where refer-

ence is made to a state or political subdivision, it is ap-

plicable to all branches of the state government and its

political subdivisions and would include State Supreme

Court ordered changes or efforts to administer changes

by the legislative, executive and judicial branches of state

government; therefore, the Supreme Court of Mississippi

is without legal authority to mandate Petitioners to disobey

the Voting Rights Act and the Attorney General of the

United States.

Even though the legislature of the State of Mississippi

amended Section 37-7-203 prior to 1965, the Respondents

acting through the State Courts seek to administer a change

in the method and manner of the election procedures of

the Louisville Municipal Separate School District. The

McDaniel decision cites Perkins v. Matthews, 91 S.Ct. 431

(1971) which holds that any change in voting procedures

for the City of Canton was within the meaning of Section

5, Voting Rights Act, required compliance with same before

implementing the change in the election procedures. In

the Perkins v. Matthews case, the legislature had changed

the law for the election of Aldermen prior to the enactment

of Section 5, but Canton did not attempt to change its

voting procedures and comply with the new state law

until after the enactment of Section 5 and the Supreme

Court of the United States in Perkins made Section 5

applicable when any covered jurisdiction seeks to admin-

ister voting changes.

We submit that the changes sought in the election

of the Trustees of the Louisville Municipal Separate School

District are squarely covered by McDaniel and Section

5 in that the legislature changed the law as to county-wide

municipal school districts and after the enactment of the

Act within a covered jurisdiction a state court and the

Respondents are seeking to administer a change. The

change has been disapproved by the Attorney General

of the United States with full knowledge of the Orders

of the Chancery Court of Winston County and the decision

of the Mississippi Supreme Court. Since the Attorney

General has considered the submission and denied the

change, we must assume that the Attorney General of

the United States by his act considers the Justice Depart-

ment to have jurisdiction within the meaning of Section

5 and acted accordingly. It is interesting to note that

even the Federal Courts canr>t waive the preclearance

requirement of Section 5 as mandated in McDaniel.

An inference is made from the decision of the Supreme

Court of Mississippi that since the United States Supreme

Court denied certiorari of No. 49,446, this Court can con-

sider the denial an adjudication on the merits that there

are no requirements for preclearance under the Voting

Rights Act. We respectfully submit that a denial of Cer-

tiorari is not and has never been an adjudication on the

merits and the mere fact that the United States Supreme

Court declined to reverse or alter in any respect the prior

decision of this Court is not controlling on the merits

of the Section 5 preclearance. Denial of Writ of Certiorari

imports no expression of opinion upon the merits of the

case. Atlantic Coastline R. Co. v. Powe, 283 U.S. 401,

51 S.Ct. 498.

CONCLUSION

Petitioners suggest that the Writ should issue since

the Supreme Court of Mississippi has ordered the Peti-

tioners to violate Section 5 of the Voting Rights Act and

to disobey the legally unenforceable letter of March 28,

1980, from the Attorney General of the United States.

This Honorable Court has to decide an important question

of federal law as to whether or not the Supreme Court

of the State of Mississippi can order noncompliance with

the Voting Rights Act.

We submit to the Court that unless this Court issues

the prayed for Writ of Certiorari and settles the important

question involved, the Petitioners will be placed in an

untenable position of either the disobeyance of the mandate

of the Supreme Court of Mississippi or violation of a

Federal statute and the Attorney General of the United

States. The Chancery Court of Winston County has en-

tered a Decree requiring the Petitioners “to administer”

a voting practice or procedure different from that which

existed as of November 1, 1964, when the Attorney General

of the United States has already denied approval of the

requested change.

For the aforementioned reasons, Petitioners are of the

opinion that the Writ of Certiorari should be granted and

that the question herein involved should be decided by

this Court as guidance for actions to be taken by govern-

mental units in the covered states.

Respectfully submitted,

Farr & Mayo

JAMES C. Mayo

(Counsel of Record)

P. O. Box 509

Louisville, Mississippi 39339

DeraAmus, Lewts & TUCKER

FRANK M. DeExaAMuS

P. O. Box 532

Louisville, Mississippi 39339

Attorneys for Petitioners

APPENDIX “A”’

Sammy CARTER, et al.

Mrs. Curtis LUKE, et al.

No. 52758.

Supreme Court of Mississippi.

June 3, 1981.

Rehearing Denied July 8, 1981.

Petitioners, who sought to enforce court mandate con-

cerning election of school board trustees, appealed from

judgment of the Chancery Court, Winston County, John

C. Love, Jr., J., Chancellor, which set forth conditions

under which the election was to be held. The Supreme

Court, Broom, J., held that the election was to be held

pursuant to Mississippi statute and was not required to

comply with the federal voters rights act.

Affirmed in part and reversed in part.

Schools (Key) 53(1)

Election of school board trustees was to be held pur-

suant to Mississippi statute and was not required to comply

with the federal voters rights act. Code 1973, § 37-7-

203; Voting Rights Act of 1965, § 5, 42 U.S.C.A. § 1973c.

Laurel G. Weir, Thomas L. Booker, Philadelphia, for

appellants.

James C. Mayo, Fair & Mayo, Deramus, Lewis &

Tucker, Louisville, for appellees.

Before SMITH, WALKER and BROOM, JJ.

BROOM, Justice, for the court:

Election of school board trustees of the countywide

Louisville Municipal Separate School District is highlighted

by this case appealed for the second time from the Chan-

cery Court of Winston County. There the petitioners Mrs.

Bobbie Lovorn, Joe Goodin, J. D. Eaves, Prentiss Carter,

and Sammy Carter (appellants herein) petitioned the court

to order a trustees election and for other relief. Lovorn

v. Hathorn, 365 So.2d 947 (Miss.1979) held unconstitutional

the phrase in Mississippi Code Annotated § 37-7-203

(Supp.1980) “in which Highways 14 and 15 intersect” and

remanded the case for election of one school board trustee

from each supervisor’s district. The United States Su-

preme Court denied petitioner’s writ of certiorari. See

Lovorn v. Hathorn, supra, cert. denied, 441 U.S. 946, 99

S.Ct. 2167, 60 L.Ed.2d 1049 (1979). The lower court de-

creed that Mississippi Code Annotated § 37-7-217 (Supp.

1980) required a run-off election if none of the trustee-

candidates from a particular supervisor’s district received

a majority vote. In addition, the lower court ordered

that the election procedure was subject to the Voting Rights

Act of 1965.

Since 1960, the school district, has included all of Win-

ston County. The board of trustees was composed of five

members: three appointed by the governing authorities

of the City of Louisville and two elected by qualified

electors outside the city. Appellants sued the city’s mayor

and others to enforce the election of one trustee from

each of the county’s five supervisor districts. Although

the chancellor dismissed appellant’s initial complaint, we

reversed and remanded the case to the chancellor for fur-

ther proceedings in Lovorn, supra.

Complainants filed their petition to enforce the mandate

of this Court on June 18, 1979, and Chancellor Love heard

and sustained the petition on July 3, 1979. This cause

was first filed in the United States District Court for

the Northern District of Mississippi which kept the case

on its docket but allowed it to be litigated in the state

court. After this Court reversed and remanded the cause,

the District Court, on defendant’s motion, dismissed the

complaint.

A detailed decree of the chancellor dated July 24,

1979, outlined the election procedure. One trustee was

to be elected from each supervisor’s district, and their

terms were to expire in different years as per Mississippi

Code Annotated § 37-7-203 (1972). According to the de-

cree, if no trustee-candidate received a majority, there

would be a run-off election between the two candidates

receiving the highest number of votes. The chancellor

ordered that the election procedures as decreed be submitted

either to the United States Attorney General or the United

States District Court for the District of Columbia in ac-

cordance with 42 U.S.C. § 1973c. After additional data

was forwarded to the United States Department of Justice,

the Civil Rights Division of the United States Attorney

General’s office advised the appellees in a letter dated

March 28, 1980, that it objected to the majority vote run-

off requirement. The office advised them that they had

the right to seek a declaratory judgment from the United

States District Court for the District of Columbia.

After additional hearings, the chancellor overruled ap-

pellants’ motion to require the United States Attorney

General to be made a party; no authority was cited to

support the motion. The lower court decreed: (1) Mis-

sissippi Code Annotated § 37-7-217 (Supp.1980) requires

a majority vote on “run-off” election, (2) the United

States Attorney General would not be made a party de-

fendant, (3) the court would not affirmatively order the

attorney general to approve the election procedure, and

(4) the decree calling the election would remain in force

subject to compliance with the 1965 Voting Rights Act.

Appellants raise only one assignment of error:

The chancellor erred in not obeying the mandate of

the Mississippi Supreme Court and mandate of the

United States Supreme Court and provide for an elec-

tion as mandated.

When we entered our prior opinion and mandate in

this cause, judgment was rendered here for the appellants.

The cause was remanded for “further proceedings” pur-

suant to our opinion, and in that posture the lower court

was required to call an election pursuant to § 37-7-203,

supra, which code section was before us on the appeal

here and was also before the United States Supreme Court

which denied certiorari. 441 U.S. 946, 99 S.Ct. 2167, 60

L.Ed.2d 1049, supra. After the United States Supreme

Court denied certiorari the chancellor by decree dated

July 24, 1979, ordered an election but required that the

matter be submitted to the Attorney General of the United

States for approval “in compliance with 42 U.S.C. sec.

1973c.” Subsequently the lower court postponed the elec-

tion and then by decree dated September 30, 1980, among

other things, decreed that certain other matters which

had been raised were

dismissed with the prior Order of this Court calling

the election to remain in force subject to compliance

with the Federal Voters Rights Act as previously or-

dered by this Court.

Our prior decision, which the United States Supreme

Court declined to reverse or alter in any respect, became

and is the law of the case. The very code section, Mis-

sissippi Code Annotated § 37-7-203 (Supp.1980), central

to our prior opinion, provides that the election shall be

“in the same manner as is provided for the election of

trustees of school districts other than municipal separate

school districts having territory in two or more counties.”

The language just quoted refers to Mississippi Code Anno-

tated § 37-7-217 (Supp.1980), which provides that a ma-

jority vote shall be required in such an election. On

oral argument, both parties agreed to abide by the statutory

scheme requiring a run-off election. We think the lower

court acted properly and within the applicable statutes

and law in entering the final decree appealed from except

that part in numercial paragraph 4 thereof which made

the election, which he had called, “subject to compliance

with the Federal Voters Rights Act as previously ordered

by this Court.” Accordingly, the decree of the lower court

appealed from is reversed as to that part of the decree

requiring “compliance with the Federal Voters Rights

Act. ...” In all other respects the decree is affirmed,

and the cause is remanded with directions for the lower

court to call and require the holding of an election pursuant

to § 37-7-203, supra, and not inconsistent with this opinion.

REVERSED AS TO REQUIREMENT IMPOSED BY

THE CHANCELLOR THAT THE MATTER AGAIN

BE SUBMITTED TO THE UNITED STATES ATTOR-

NEY GENERAL OR A FEDERAL DISTRICT COURT;

AFFIRMED IN ALL OTHER RESPECTS.

PATTERSON, C. J., SMITH and ROBERTSON, P.

JJ., and SUGG, WALKER, LEE, BOWLING and HAWK-

INS, JJ., concur.

APPENDIX “B”’

The Voting Rights Act as enacted in 1965 as amended

in 1975 in Section 5 provides:

“Whenever a State or political subdivision with re-

spect to which the prohibitions set forth in section

1973b (a) of this title based upon determinations made

under the third sentence of section 1973b (b) of this

title are in effect shall enact or seek to administer any

voting qualification or pre-requisite to voting, or stan-

dard, practice, or procedure with respect to voting

different from that in force or effect on November 1,

1972, such State or subdivision may institute an action

in the United States District Court for the District of

Columbia for a declaratory judgment that such quali-

fication, prerequisite, standard, practice, or procedure

does not have the purpose and will not have the effect

of denying or abridging the right to vote on account

of race or color, or in contravention of the guarantees

set forth in section 1973b (f) (2) of this title, and

unless and until the court enters such judgment no

person shall be denied the right to vote for failure to

comply with such qualification, prerequisite, standard,

practice, or procedure: PROVIDED, That such qauli-

fication, prerequisite, standard, practice, or procedure

may be enforced without such proceeding if the quali-

fication, prerequisite, standard, practice, or procedure

has been submitted by the chief legal officer or other

appropriate official of such State or subdivision to the

Attorney General and the Attorney General has not

interposed an objection within sixty days after such

submission, or upon good cause shown, to facilitate an

expedited approval within sixty days after such sub-

mission, the Attorney General has affirmatively indi-

cated that such objection will not be made.”

APPENDIX ‘“C”’

U.S. DEPARTMENT OF JUSTICE

Civil Rights Division

Office of the Assistant Attorney General

Washington, D.C. 20530

James C. Mayo, Esq.

Fair and Mayo

Post Office Box 509

Louisville, Mississippi 39389

Dear Mr. Mayo:

This is in reference to the changes in election pro-

cedures for the Board of Trustees of the Louisville Munic-

ipal Separate School District in Winston County, Mis-

sissippi, submitted to the Attorney General pursuant to

Section 5 of the Voting Rights Act of 1965, as amended.

Your submission was completed on January 28, 1980.

At the outset, we note that our analysis has revealed

no other situation in Mississippi where a county-wide

school district is operated as a municipal separate school

district as in Winston County. To the contrary, our an-

alysis shows that all other county-wide school districts in

Mississippi are operated by county school boards which

are, by Mississippi law, elected from the five county

supervisor beats or districts in each county. As in most

other elections in Mississippi, candidates may win in the

general election by obtaining a plurality of the votes cast.

As we understand it, however, and because the county-

wide school authority in Winston County is termed a

municipal separate school district, a majority vote run-off

requirement will apply to the election of school board mem-

bers even though they will be elected from the county’s

five supervisor’s districts. Thus, in spite of the fact that

the only apparent difference between the Winston County-

wide school authority and that of other counties is its name,

in Winston County a majority vote requirement would be

imposed as a unique feature among county-wide school

board elections in the state.

In this regard, our analysis further has shown that

blacks constitute approximately 39 percent of the county’s

population but do not constitute a majority of any of the

five supervisor’s districts from which school board members

will be elected in Winston County. Additionally, there

appears to be a general pattern of racially polarized voting

in the county anc no black has ever been elected or ap-

pointed to the school board, the board of supervisors or the

Louisville Board of Aldermen. Because of these facts, we

are unable to conclude, as we must under the Voting

Rights Act, that the special application of a majority vote

requirement for the election of county-wide school board

members in Winston County will not have a discriminatory

effect. Accordingly, on behalf of the Attorney General, I

must enter an objection to the method of electing the

Louisville Municipal Separate School District board of

trustees insofar as it incorporates a majority vote require-

ment.

Of course, as provided by Section 5 of the Voting Rights

Act you have the right to seek a declaratory judgment

from the United States District Court for the District of

Columbia that these changes have neither the purpose nor

will have the effect of denying or abridging the right to

vote on account of race, color, or membership in a language

minority group. In addition, the Procedures for the Ad-

ministration of Section 5 (28 C.F.R. 51.21(b) and (c), 51.23,

and 51.24) permit you to request the Attorney General to

reconsider the objection. However, until the objection is

withdrawn or the judgment from the District of Columbia

Court obtained, the effect of the objection by the Attorney

General is to make the changes in election procedures

legally unenforceable.

To enable this Department to meet its responsibility

to enforce the Voting Rights Act, please inform us within

twenty days of your receipt of this letter of the course of

action the Louisville Municipal Separate School District

plans to take with respect to this matter. If you have any

questions concerning this letter, please feel free to call Mr.

Andrew Karron (202—724-7403) of our staff, who has been

assigned to handle this submission.

Because of the pendency of the related case of Lovorn

v. Hathorn, No. 49446, we are forwarding a copy of this

letter to the Chancery Court.

Sincerely,

/s/ Drew S. Days III

Drew S. Days III

Assistant Attorney General

Civil Rights Division

XIPUaddy

T Office - Supreme Court, U.S.

FILED

No. 81-451 FEB 12 1982

In the Supreme Court of the saat enna el

October Term, 1981

RALPH HATHORN, ET AL.,

Petitioners,

vs.

MRS. BOBBY LOVORN, ET AL.,

Respondents.

On Writ or CERTIORARI TO THE SUPREME COURT

or MISSISSIPPI

JOINT APPENDIX

JaMes C. Mayo

Fat & Mayo, Attorneys

P. O. Box 509

Louisville, Mississippi 39339

(601) 773-3455

FRANK M. DeRAMuUS

Deramus, Lewis & TUCKER

P. O. Box 532

Louisville, Mississippi 39339

(601) 773-9254

Counsel for Petitioners

LauReEL G. WEIR

Attorney at Law

P. O. Box 156

Philadelphia, Mississippi 39350

(601) 656-1931

Counsel for Respondents

Petition for Certiorari Filed August 28, 1981.

Certiorari Granted December 14, 1981.

—_—

E. L. Menwpewnare, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-2020

TABLE OF CONTENTS

I CEPI MII occcccpesetcsnnsccnscentcessnsenncesntonstsbanemnsionse

Petition to Enforce Mandate of Mississippi Supreme

EIS TE GT I aac cscccccccerccecccncisccnennscnsqncenent

Opinion in Cause No. 49,446 ........: DiscednseiditiseepiielaiMaelislinin

Order of the Supreme Court of the United States

Denying Certiorari in Cause No. 78-1517 ............

Petition to Modify and Change Decree and Other Re-

EEE SS REN cen ee

Final Decree of the Chancery Court of Winston County

dated September 30, 1980 ...........

The following documents appear in the Appendix

of the Petition for Certiorari filed in this case August

28, 1981. The referenced page numbers are those of

the Appendix in the Petition:

Opinion of the Supreme Court of Mississippi in Cause

No. 52,758 dated June 3, 198) 220. ceeeeeeeeceeee Al1-A5

Letter from United States Department of Justice, Civil

Rights Division, dated March 28, 1980 .................... AT-A9

No. 81-451

In the Supreme Court of the United States

October Term, 1981

RALPH HATHORN, ET AL..,

Petitioners,

vs.

MRS. BOBBY LOVORN, ET AL..,

Respondents.

On Writ or CERTIORARI TO THE SUPREME CouRT

6/18/79

7/2/79

7/3/79

7/24/79

8/22/79

10/1/79

5/16/80

6/11/80

9/10/80

9/30/80

6/3/81

or MISSISSIPPI

JOINT APPENDIX

RELEVANT DOCKET ENTRIES

Petition to Enforce Mandate

Answer of Defendants

Hearing on Petition to Enforce Mandate

Decree of the Chancery Court Orderirig Election

Decree of the Chancery Court Amending Prior

Decree

Decree of the Chancery Court Postponing Trustee

Election

Plaintiffs’ Petition to Modify

Answer of Defendants to Petition to Modify

Hearing on Motion

Final Decree of Chancery Court

Decision of Mississippi Supreme Court

(Filed June 18, 1979)

CHANCERY COURT WINSTON COUNTY, MISSISSIPPI

NO. 11,222

SAMMY CARTER, ET AL

COMPLAINANTS

VS.

MRS. CURTIS LUKE, ET AL

DEFENDANTS

PETITION TO ENFORCE MANDATE OF

MISSISSIPPI SUPREME COURT AND

OTHER RELIEF

TO THE HONORABLE CHANCERY COURT OF WIN-

STON COUNTY, MISSISSIPPI:

Comes the adult petitioners or the original petitioners

in this cause, Mrs. Bobbie Lovorn, of District 1, Winston

County, Mississippi, Joe Goodin of District 2, Winston

County, J. D. Eaves of District 3, Winston County, Prentiss

Carter of District 4 of Winston County, Mississippi, and

Sammy Carter of District 5, Winston County, Mississippi,

and all live outside the municipal limits of Louisville,

Mississippi, in the Louisville Municipal Separate School

District of Winston County, Mississippi, and this matter was

heard by the Mississippi Supreme Court and said court

entered their final opinion on April 9, 1979, as shown by

a true and correct copy of their opinion and mandate which

is hereto attached and made a part of this petition just as

if copied fully in words and figures herein.

2. The same circumstances exist now as existed at

the time of the filing and trial of the original case in this

court, with the exception that Harold Smith is no longer

Alderman of Louisville, Mississippi, and instead Bobby

McQuitar has taken his place as Alderman in Louisville,

Mississippi; and Louis Taunton is no longer Alderman in

Louisville and instead Mrs. Lamont Cunningham has taken

his place. Mrs. Curtis Luke is no longer City Clerk of

Louisville and instead Charles Lowery is the City Clerk.

The petitioners bring forth all of the pleadings and things

of record in this cause by reference just as if copied fully

in words and figures herein, that are necessary for the

enforcement of the mandate of the Mississippi Supreme

Court.

3. By virtue of the mandate and opinion of the Mis-

sissippi Supreme Court, there is required to be an election

conducted in each Supervisor district in Winston County,

Mississippi consisting of a total of five supervisor districts

for the election of a County Board of Education with one

trustee to be elected from each supervisor’s district. The

election should be conducted at each and every polling

place as soon as possible for the election of trustees. The

persons who claim to be trustees and acting under their

direction and control, should be ordered to vacate their

alleged positions and from further carrying out of their al-

leged duties. The Honorable Election Commissioners of

Winston County, Mississippi, should be required to conduct

the election in accordance with the laws of the State of

Mississippi for members of the Winston County Board of

Education as soon as possible. One trustee shall be elected

from each supervisor’s district at all of the polling places

as provided by law. It is submitted that all parties are

already before the court and are duty bound to appear

in court and honor and obey the decree of this Court to be

rendered to enforce said mandate. However, if the court

requires a setting and for the parties to be summoned, the

petitioners stand ready to do whatever is necessary to en-

force said mandate. Defendants have acted vexatiously

and without merit and have intentionally harassed appel-

lants and their attorney in order to defeat the enforcement

of the laws of the State of Mississippi, even undertaking

to appeal or apply for a Writ of Certiorari to the United

States Supreme Court when there was not merit at all to

such tactics and still trying to delay and frustrate justice

in this matter. The decision of the United States Supreme

Court is also attached and made a part of this petition.

Defendants should be required to pay reasonable attorney

fees in this matter because of the extra attorney fees they

have caused appellants and petitioners to endure and incur

and even now they will not and have not obeyed the man-

date of the Mississippi Supreme Court and are undertaking

to flout same.

4. Defendant Thomas W. Satterfield, acting as Super-

intendent under the direction of the other alleged trustees,

Davis Fair, Vernon Scott, Paul Rounger, Everette Watkins,

and William Billy Lipscand have during the past six years

unlawfully disposed of more than $6,000,000.00 (Six Mil-

lion dollars) in funds belonging to the School District in-

volved, without authority of law, and should be required to

make an accounting for said exact amount of money un-

lawfully misspent and file an acounting with the court for

said purposes so that the court can determine the exact

amount of misspent money without authority of law and

enter judgment against them for said amounts. However,

this proceeding should not keep the mandate from being

enforced immediately and an Order providing for same

should be entered immediately without the necessity of

passing on such proposition at the same time, due to the

urgency of the situation and the necessity of making ar-

rangement to conduct school as soon as possible.

PREMISES CONSIDERED, PETITIONERS PRAY

that this petition be filed and docketed, and an Order im-

mediately entered setting the time, date, and place of the

election and making provisions for same, and require the

alleged acting trustees of the Louisville Municipal School

District to stop undertaking to be trustees and to quit un-

dertaking to operate said school district and from inter-

fering in any way or manner the trustees to be elected in

the election scheduled from the proper operation of the

school district; and if necessary to make provisions for a

setting of this cause and for the issuance of necessary pro-

cess if the court requires, and also after the election is con-

ducted and the new trustees have taken office, to hear the

matter further on the merits to determine the amount of

money the said alleged trustees and superintendent have

unlawfully misspent and for the payment of said money

back into the funds of the school district and enter

judgment against them jointly and severally for the amount

found due and owing after they have been required to file

an accounting for their acts, deeds, and money misspent

and enjoin the wrongful withholding of the record of said

school district and property and possessions from the newly

elected trustees; and petitioners pray for the same relief

temporarily and for the same relief under urgent and neces-

sitous circumstances and pray for all other relief as they

may be entitled to receive under the law and equity and as

in duty bound they will ever pray.

MRS. BOBBY LOVORN, JOE GOODIN, J. D. EAVES,

PRENTISS CARTER AND SAMMY CARTER, ALL

BY THEIR ATTORNEY, LAUREL G. WEIR, Box 156,

Philadelphia, Mississippi 39350.

/s/ Laurel G. Weir

(Affidavit and Certificate of Service are

omitted in printing)

OPINION IN 49,446

Mrs. Bobby LOVORN, Sammy Carter,

Joe Goodin, J. D. Eaves and

Prentiss Carter

Vv.

Ralph HATHORN, Mayor of

Louisville, et al.

No. 49446.

Supreme Court of Mississippi.

Oct. 4, 1978.

As Corrected On Denial of Rehearing

Jan. 10, 1979.

Action was brought against mayor and others seeking

mandatory injunction to enforce election of five-member

school board for m-.nicipal separate school district. The

Chancery Court, Winston County, John C. Love, Jr., Chan-

cellor, dismissed bill of complaint, and complainants ap-

pealed. The Supreme Court, Lee, J., held that provision of

statute governing election of board of trustees in school

district embracing entire county which read “in which

Highways 14 and 15 intersect” was unconstitutional, al-

though remaining portion of statute was constitutional as

being rational and germane to subject matter.

Reversed, rendered and remanded.

Statutes (Key) 64(2), 96(4)

Portion of statute providing for election of board of

trustees for school district embracing entire county which

read “in which highways 14 and 15 intersect” was uncon-

stitutional as violation of prohibition on local, private or

special laws; however, with offending language stricken,

remaining portion of statute was constitutional as being

rational and germane to subject matter. Code 1972, § 37-7-

203; Const.1980, § 90(p).

Laurel G. Weir, Philadelphia, for appellants.

Fair & Mayo, James Mayo, Louisville, William A.

Allain, Jackson, Frank Deramus, Louisville, for appellees.

Sara E. Gallaspy, Jackson, amicus curiae brief for

Mississippi Municipal Association.

En Banc.

LEE, Justice, for the Court:

Mrs. Bobby J ovorn, et al., filed their bill of complaint

against Ralph Hathorn, Mayor of Louisville, et al., in the

Chancery Court of Winston County, seeking a mandatory

injunction to enforce the election of a five-member school

board for the Louisville Municipal Separate School District.

The chancellor entered a decree dismissing the bill and com-

plainants below appeal and assign the following errors in

the trial:

(1) The chancellor erred in holding Mississippi Code

Annotated Section 37-7-203 (1972) to be unconstitutional.

(2) The chancellor erred in holding that the constitu-

tional rights of appellant were not being violated under

the one-man one-vote principle.

(3) The chancellor erred in amending his decree after

an appeal had been perfected to the Mississippi Supreme

Court.

Since July 1, 1960, Louisville Municipal Separate

School District has covered all of Winston County and

has been the only school district in said county. Twenty-

six hundred seventy-five (2,675) pupils outside the Louis-

ville city limits and fourteen hundred eighteen (1,418)

pupils inside the city limits attend the schools of said

district. The population of Winston County is approxi-

mately eighteen thousand four hundred six (18,406) of

which number approximately seven thousand (7,000) live

within the City of Louisville. Taxes in the school district

are assessed and collected by the Louisville City Tax As-

sessor and Collector, and the school district has issued

negotiable bonds for the purpose of funding construction

and maintenance of the schools. School taxes collected

inside the city amount to two hundred ninety-four thou-

sand nine hundred sixty-four dollars three cents ($294,-

964.03) and said taxes collected outside the city amount

to two hundred fifty-five thousand eight hundred twelve

dollars twenty-four cents ($255,812.24). There are fifty-

two (52) municipal separate school districts in Mississippi

and at least forty-eight (48) such districts have territory

located outside the municipality which is embraced within

the school district.

Since 1960, the Board of Trustees of Louisville Mu-

nicipal Separate School District has been composed of

five (5) members, three (3) of which are appointed by

the governing authorities of the City of Louisville, and

two (2) of which are elected by the qualified electors of the

school district outside the city. That part of Mississippi

Code Annotated Section 37-7-203 (1972) as amended, which

applies to this suit provides: “...in any county in which

a municipal separate school district embraces the entire

county in which Highways 14 and 15 intersect, one (1)

trustee shall be elected frorn each supervisors district.”

(Emphasis added).

It is not disputed that the italicized phrase applies

only to Winston County. Appellants’ suit was brought to

enforce election of one (1) trustee from each supervisor’s

district. Thev also contend that the method of selecting

trustees for said municipal separate school district violates

the one-man one-vote rule and that the right of individ-

uals residing outside the Louisville city limits to vote for

trustees were being unconstitutionally diluted in violation

of the Equal Protection Clause of the Fourteenth Amend-

ment to the United States Constitution. The chancellor

found the quoted part of the statute to be in violation

of Section 90, Mississippi Constitution 1890, and unconstitu-

tional. He also held that the one-man one-vote rule was

inapplicable to the present case.

Did the chancellor err in holding Mississippi Code An-

notated Section 37-7-203 (1972), as amended, to be un-

constitutional?

The basis of the chancellor’s ruling is that the part

of said statute referring to Highways 14 and 15 bears no

rational relationship to the means of electing trustees in

the school district, that it could not apply to any county

except Winston County and that it is a local and private

law in violation of Section 90(p), Mississippi Constitution

1890, which follows:

“Section 90. The legislature shall not pass local,

private or special laws in any of the following enu-

merated cases, but such matters shall be provided

for only by general law, viz:

(p) Providing for the management or support of

any private or common school, incorporating the same

or granting such school any privileges; . . .”

We held in Wilson v. Jones County Board of Super-

visors, 342 So.2d 1293 (Miss.1977), where the statute under

consideration involved levying an additional two-mill tax

in a county having a population in excess of fifty-nine thou-

sand five hundred forty (59,540) and being traversed by

U. S. Highway 11 which intersected U. S. Highway 84

(Jones County), that the classification must bear a ra-

tional relationship to the purpose of the section. We said:

“It is the Court’s duty in passing on the con-

stitutionality of a statute to separate the valid from

the invalid part, if this can be done, and to permit the

valid part to stand unless the different parts of the

statute are so intimately connected with and depen-

dent upon each other as to warrant a belief that the

legislature intended them as a whole, and that if all

cannot be carried into effect it would not have en-

acted the residue independently. [Citing cases].

. .. We are therefore led to the inescapable con-

clusion that the legislature would have enacted the

valid part of the statute independently of the invalid

part because this is precisely what it did. The invalid

part of the statute may be separated from the v»lid

part and stricken out leaving a complete and consistent

plan whereby counties may levy additional taxes for

general county purposes. We therefore hoid that the

part of section 27-39-304 authorizing counties to levy

additional taxes for general county purposes, and the

part in the last paragraph prescribing the procedure

to be followed in making the levy, are constitutional.”

342 So.2d at 1296, 1297.

An act providing that a county having two judicial dis-

tricts and being intersected by U. S. Highway 84 and In-

terstate 59 was held to be unconstitutional in Smith v.

Transcontinental Gas Pipeline Corporation, 310 So.2d 281

(Miss.1975). It was emphasized that the classification must

be germane to the subject matter of the legislation.

In Vardaman v. McBee, 198 Miss. 251, 21 So.2d 661

(1945), the Court stated:

“Class legislation, also often called local or pri-

vate legislation, is legislation limited in operation to

certain persons or classes of persons, natural or arti-

ficial, or to certain districts of the territory of the

State, and statutes which make unreasonable or arbi-

trary classifications or discriminations violate provi-

sions of Constitutions prohibiting special laws grant-

ing any special or exclusive privileges, immunities, or

franchises, or passed for the benefit of individuals in-

consistent with the general law of the land. 12 CWJ.,

Sec. 855, p. 1128; 16A C.J.S. Constitutional Law § 489.

It is said in Ruling Case Law, ‘Where a law is

broad enough to reach every portion of the state and

to embrace within its provision every person or thing

distinguished by characteristics sufficiently marked

and important to make them clearly a class by them-

selves, it is not a special or local, but a general, law,

even though there may be but one member of the class

or one place on which it operates.’” 198 Miss. at 260,

21 So.2d at 664.

The statute under consideration in Board of Education

v. Educational Finance Commission, 243 Miss. 782, 138 So.2d

912 (1962), provided):

“In cases involving two (2) counties, each of which

is organized on the county-unit basis, where the stu-

dents residing in one county have been attending and

wish to continue attending the school situated in the

adjoining county which children from their community

have been attending for more than forty (40) years

and where the county line lies within one thousand

(1,000) yards of the school property, transfers may

be granted for a period of time not to exceed five (5)

years, subject to the approval of the two (2) respective

county boards of education. In case the two (2) boards

are unable to agree or in case there is a popular ob-

jection to the decision of the respective boards in the

matter, appeals shall lie to the state educational fi-

nance commission whose decision shall be final.’” 243

Miss. at 804, 138 So.2d at 921.

In holding that the statute was not unconstitutional, the

Court said:

“The appellant Benton County Board of Education

has invited the attention of this Court to the Missis-

sippi Legislative House Journal of 1960 at page 388 in

order to prove that the amendment here complained

of was introduced by three representatives from Mar-

shall County, Mr. Ash, Mrs. Slayden and Mr. Owen.

It is further stated that the Court should take judicial

knowledge of the enactment and says: ‘There can be

no question, but that this proviso was inserted for the

sole and express purpose of taking care of the Potts

Camp situation.” This may well be true, but this

Court has no right to assume such facts. The burden

is upon one who attacks the constitutionality of a stat-

ute to show wherein it conflicts with the Constitution.

We find the foregoing rule expressed in 11 Am.Jur.,

Constitutional Law, Sec. 132, p. 796, as follows: ‘With

regard to the duties cast upon the assailant of a legis-

lative enactment, the rule is fixed that a party who

alleges the unconstitutionality of a statute normally

has the burden of substantiating his claim and must

overcome the strong presumption in favor of its valid-

ity. It has been said that the party who wishes to

pronounce a law unconstitutional takes on himself the

burden of proving this conclusion beyond all doubt,

and that a party who asserts that the legislature has

usurped power or has violated the Constitution must

affirmatively and clearly establish his position.’

In the case of State ex rel. Jordan, District Attorney

v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710, at p.

714, this Court said: ‘Our own Court is committed to

the proposition that a statute should be so construed

as to render its constitutional, if possible, and a statute

will not be declared invalid unless it is clearly ap-

parent that it conflicts with the organic law after re-

solving all doubts in favor of its validity.’

It was also pointed out in State ex rel. Knox, At-

torney General v. Speakes et al., 144 Miss. 125, 109

So. 129, that where the meaning of a provision in a

statute is not ascertainable from the act itself, it can-

not be enforced by the courts, and certainly courts

cannot go outside of the amendment of 1960 in this

case, and the record, to find some meaning by which

the amendment may be declared unconstitutional.

We are reminded by the language set out in 16

C.J.S. Constitutional Law § 151(1), p. 738, that: “The

power of the judiciary in determining the constitu-

tionality of a statute is limited to deciding whether it

is within the scope of the constitutional powers of the

legislative department. The judiciary will interfere

with acts of the legisiative body only where they are

beyond the bounds prescribed by the constitution, and

a legislative usurpation of power should be clear, pal-

pable, or oppressive, and the claimed infringement of

the constitution must be real to justify interposition.

Limitations on the power of the legislature which the

people have been satisfied to leave to the judgment,

patriotism, and sense of justice of the legislature are

not within the control of the courts. It is for the leg-

islature and not for the courts to determine what means

shall be employed to accomplish ends within its con-

stitutional powers, * * *’.” 243 Miss. at 812-814, 138

So.2d at 925-926.

Absent the provision referring to Highways 14 and 15

intersecting, the statute, which is a general statute, ap-

pears to be constitutional. Even though Louisville Mu-

nicipal Separate School District encompasses all territory

of the county, there are statutory procedures whereby any

other county in the state could become similarly situated.

Without the offensive part of Section 37-7-203, the statute

appears to be rational and germane to the subject matter.

We hold that the part of said statute under considera-

tion here which reads “in which Highways 14 and 15 in-

tersect” is unconstitutional, that such offensive language

be stricken from the act and that the remaining portion

of the statute is constitutional. We further hold that the

chancellor erred in finding the entire portion of the statute

to be unconstitutional and the decree is reversed and

judgment entered here on said question.

II.

Did the chancellor err in holding that the constitutional

rights of appellants were not being violated under the one-

man one-vote principle?

Il.

Did the chancellor err in amending his decree after an

appeal had been perfected to the Mississippi Supreme

Court?

Appellants contend that their right to vote for trustees

is being unconstitutionally diluted in violation of the Equal

Protection Clause of the Fourteenth Amendment and that

the one-man one-vote rule is applicable to the election of

trustees for said school district. They cite Avery v. Mid-

land County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45

(1968), and Hadley v. Junior College District of Metro-

politan Kansas City, Missouri, 397 U.S. 50, 90 S.Ct. 791, 25

L.Ed.2d 45 (1970). In Hadley, the Supreme Court stated:

“Appellants argue that since the trustees can levy

and collect taxes, issue bonds with certain restrictions,

hive and fire teachers, make contracts, collect fees, su-

pervise and discipline students, pass on petitions to

annex school districts, acquire property by condemna-

tion, and in general manage the operations of the junior

college, their powers are equivalent, for apportionment

purposes, to those exercised by the county commis-

sioners in Avery. We feel that these powers, while

not fully as broad as those of the Midland County Com-

missioners, certainly show that the trustees perform

important govermental functions within the districts,

and we think these powers are general enough and

have sufficient impact throughout the district to justify

the conclusion that the principle which we applied in

Avery should also be applied here.

... Thus in the case now before us, while the office

of junior college trustee differs in certain respects

from those offices considered in prior cases, it is ex-

_ actly the same in the one crucial factor—these officials

are elected by popular vote.

. . . If one person’s vote is given less weight

through unequal apportionment, his right to equal vot-

ing participation is impaired just as much when he

votes for a school board member as when he votes for

a state legislator. While there are differences in the

power of different officials, the crucial consideration

is the right of each qualified voter to participate on

an equal footing in the election process. It should be

remembered that in cases like this one we are asked

by voters to insure that they are given equal treatment,

and from their perspective the harm from unequal

treatment is the same in any election, regardless of

the officials selected.

* * *

It has also been urged that we distinguish for ap-

portionment purposes between elections for ‘legislative’

officials and those for ‘administrative’ officers. Such

a suggestion would leave courts with an equally un-

manageable principle since governmental activities

‘cannot easily be classified in the neat categories fa-

vored by civics texts,’ Avery, supra, 390 U.S. at 482,

88 S.Ct. at 1119, 20 L.Ed.2d at 52, and it must also be

rejected. We therefore hold today that as a general

rule, whenever a state or local government decides to

select persons by popular election to perform govern-

mental functions, the Equal Protection Clause of the

Fourteenth Amendment requires that each qualified

voter must be given an equal opportunity to partici-

pate in that election, and when members of an elected

body are chosen from separate districts, each district

must be established on a basis that will insure, as far as

is practicable, that equal numbers of voters can vote for

proportionally equal numbers of officials.” 397 U.S.

at 53-56, 90 S.Ct. at 794-795, 25 L.Ed.2d at 49-51.

Appellees argue that the one-man one-vote rule does

not apply and, among other decisions, cite Sailors v. Board

of Education of the County of Kent, 387 U.S. 105, 87 S.Ct.

1549, 18 L.Ed.2d 650 (1967), wherein the court said that

the rule did not apply since the county school board mem-

bers were elected by delegates from local school boards

and that the function of said school board was administra-

tive rather than legislative or governmental. The Court

further stated:

“We find no constitutional reason why state or

local officers of the nonlegislative character involved

here may not be chosen by the governor, by the legis-

lature, or by some other appointive means rather than

by an election. Our cases have, in the main, dealt with

elections for United States Senator or Congressman

. . . If we assume arguendo that where a State

provides for an election of a local official or agency—

whether administrative, legislative, or judicial—the re-

quirements of Gray v. Sanders [372 U.S. 368, 83 S.Ct.

801, 9 L.Ed.2d 821] and Reynolds v. Sims [377 USS.

533, 84 S.Ct. 1362, 12 L.Ed.2d 506] must be met, no

question of that character is presented. For while

there was an election here for the local school board,

no constitutional complaint is raised respecting that

election. Since the choice of members of the county

school board did not involve an election and since

none was required for these nonlegislative offices, the

principle of ‘one man, one vote’ has no relevancy.”

387 U.S. at 108, 111, 87 S.Ct. at 1552, 1553, 18 L.Ed.2d

at 653, 655.

The selection process here is neither fish nor fowl.

three members of the board being appointed in the city

and two members being elected outside the city. However,

since the decision on Question I decides this case, we do

not reach the problem presented by the one-man one-vote

rule, and it is not necessary that we pass on the second

and third questions here. Suffice it to say, we call atten-

tion of the Bench, Bar and Legislature to the question

(which we do not decide) presented by the one-man one-

vote rule which may affect fifty-two (52) municipal sep-

arate school districts in the State of Mississippi.

After consideration of this case by a conference of

justices en banc, and for the reasons stated, the decree of

the trial court is reversed, judgment is rendered here for

appellants, and the case is remanded to the chancery court

for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED FOR FURTHER PRO-

CEEDINGS NOT INCONSISTENT WITH THIS OPINION.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ.,

and SUGG, WALKER, BROOM and COFER, JJ., concur.

BOWLING, J., took no part.

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D. C. 20543

May 14, 1979

Laurel G. Weir, Esq.

Box 156

Philadelphia, MS 39350

Re: Ralph Hathorn, Mayor of Louisville, et

al.

v. Mrs. Bobby Lovorn, et al.

No. 78-1517

| Dear Mr. Weir:

The Court today entered the following order in the

above-entitled case:

The petition for a writ of certiorari is denied.

Very truly yours,

/s/ Michael Rodak, Jr.

Michael Rodak, Jr., Clerk

(Filed May 16, 1980)

IN THE

CHANCERY COURT OF WINSTON COUNTY,

MISSISSIPPI

SAMMY CARTER ET AL

COMPLAINANTS

MRS. CURTIS LUKE ET AL

DEFENDANTS

PETITION TO MODIFY AND CHANGE DECREE

AND OTHER RELIEF

TO THE HON. CHANCERY COURT OF WINSTON

COUNTY, MISSISSIPPI:

1. The adult Complainants, Mrs. Bobbie Lovern of

Dist. 1, Winston County, Miss., Joe Goodin of Dist. 2 said

county, J. D. Eaves of Dist. 3 said county, Prentiss Carter

of Dist. 4 said County, and Sammy Carter of Dist. 5 said

county, all live outside the City Limits of Louisville, Miss.,

but in the Louisville Municipal Separate School District

that embraces the entire County of Winston. The adult

respondents are the same parties originally in this cause

and the entire court file is made a part of this petition

by reference just as if copied fully in words and figures

herein.

2. On April 9, 1979, The Supreme Court of The State

of Mississippi entered a final judgrnent in this cause and

issued their mandate as shown by a true and correct copy

of same that is hereto attached and made a part of this

petition just as if copied fully in words and figures herein.

The ruling of The Mississippi Supreme Court reversed

the cause and required the holding of an election for the

members of the trustees of The Louisville Municipal Sepa-

rate School District, one from each of the 5 supervisor

districts in Winston County, and remanded the matter

to the Chancellor for a decree not inconsistent with said

opinion. The Miss. Supreme Court did not order the

matter submitted to The United States Department of

Justice as to approval under the voting rights act of 1965,

although appellees and present respondents contended they

should. The statute involved requiring the election was

enacted by The Legislature of Miss. before the voting rights

act came into effect and Section 37-7-203 Miss. Code of

1972 as well as other laws require such election as required

by The Miss. Supreme Court and does not State whether

the person elected shall be by plurality or for a run-off elec-

tion in the event no candidate receives a plurality of the

votes when the election is first held.

3. After The Miss. Supreme Court decision was en-

tered the respondents filed a petition for writ of Cer-

tiorari to The United States Supreme Court alleging among

other things that the Miss. Supreme Court had erred in

not complying with the voting rights act of 1965 and

that no election could be held until Section 5 of the vot-

ing rights act was complied with. The Miss. Supreme Court

Decision is marked exhibit A and the petition for writ

of Certiorari is attached and marked exhibit B and made

a part of this petition just as if copied fully herein. A

response, although not required by The United States

Supreme Court, was made by appellants and petitioners

herein and as shown by a copy of same that is hereto

attached and marked exhibit C. The United States Su-

preme Court denied the writ of certiorari and ordered the

mandate of The Miss. Supreme Court enforced on May 14,

1979, as shown by a true copy of same attached and marked

exhibit D and thereby rejecting the issue that the matter

came under the voting rights act as well as requiring the

election.

4. Despite the mandates of The Miss. Supreme Court

and the United States Supreme Court it was necessary

for Appellants and petitioners herein to file a petition to

enforce the mandates and same was filed on June 18, 1979,

and the Chancellor entered a Decree July 24, 1979, re-

quiring the election, but ordered it submitted to the United

States Attorney General with supporting data by respon-

dents for approval under the voting rights act and also

by a Decree dated August 22, 1979, copies of which are

attached, and retained jurisdiction so that this cause

could be heard by this Court In Vacation or term time as

shown by said Decrees attached and made a part hereof

just as if copied fully herein. They are marked exhibits

E and F respectively. The Decree of August 22, 1979,

changed the July decree to state:

“6. If no candidate receives a majority of the vote

cast at any of said elections held on December 1, 1979,

a run off election shall be held during the same hours

and at the same place two weeks later on December

15, 1979, as provided by statute. The runoff shall

be between the two candidates receiving the highest

vote on December 1, 1979.”

A decree postponing the election was entered October

1, 1979, as shown by a copy of the decree of said court

marked Exhibit G and made a part of this petition just as if

copied fully herein, because the Attorney General of the

United States of America and especially his assistants to

whom it was assigned, Hon. Drew S. Days III and Hon.

Andrew Karon finally, but not within a time prescribed

by law, interposed a single objection, that is that their only

objection was that a runoff election was being required

by the Hon. Chancery Court of Winston County instead

of the one receiving the highest number of votes would

be the trustee at the elections to be held in each supervisor

district as is the usual practice in the other 82 counties

or majority of the other 82 counties. Petitioners have no

objection to this procedure and therefore this would be ac-

ceptable and the former decrees should be modified and

changed so that an election be immediately held under

orders of this Court and the candidate receiving the highest

number of votes at the election be declared the trustee for

the district in which he or she is elected. As already stated,

the particular statute involved does not make provision as

to how the election is to be conducted as to whether or

not the candidate receiving the highest number of votes

is declared elected trustee or if a run off election is neces-

sary. This is immaterial to petitioners, as they are in-

terested in their school and school children and the school

district and having an election as required by law and the

one-man, one-vote, theory applied.

5. It is also contended that this matter does not come

under the voting rights law for reasons already stated and

said U. S. Attorney General and/or no one else has any au-

thority to pass on this matter due to the rulings of The

United States Supreme Court who has answered this ques-

tion as well as the other reasons herein stated, but if neces-

sary, the additional parties should be made parties defen-

dants and summoned according to law.

6. An action was first brought in The United States

District Court in The Northern District of Miss., Eastern

Division, involving the same matter, and by an order en-

tered July 1, 1975, the matter was held in abeyance until

the matter could be filed and concluded in the District

State Courts as shown by a copy of the order attached and

marked exhibit H and after the Chancellor ordered the

election the case was finally dismissed without prejudice

because of the circumstances March 22, 1979, as shown by

a copy of same attached and marked exhibit I. A motion

is being made to reinstate the matter in said U. S. District

Court so as to again retain jurisdiction in cause no. EC

74-161-S.

7. Petitioners and those they represent as citizens of

Winston County are entitled to an immediate election and

demand same. Hon. Benjamin Civiletti is Atty. Genl. of

U. S. A. if the Court require he be made a party de-

fendant.

PREMISES CONSIDERED PETITIONERS PRAY that

this petition be filed, docketed, and heard as soon as pos-

sible and that the former decrees be modified and changed

so that this court will order an immediate election for

trustees in each of the Supervisor Districts and if necessary

to provide that the candidate receiving the highest num-

ber of votes at the election be declared elected trustee;

and not require the Attorney General of The United

States to approve same; or in the alternative that he be

made a party defendant and that this Court will require

his approval of said Decree and petitioners pray for all

other relief as they may be entitled to receive under the

law and Equity and as in duty bound they will ever pray.

Sammy Carter et al, petitioners, by their attorney,

Laurel G. Weir, Box 156, Philadelphia, Miss. 39350:

/s/ Laurel G. Weir

(Exhibits are omitted in printing)

(Affidavit and Certificate of Service are omitted in

printing)

(Filed September 30, 1980)

IN THE CHANCERY COURT OF WINSTON

COUNTY, MISSISSIPPI

VACATION TERM, SEPTEMBER, 1980

NO. 11,222

SAMMY CARTER, ET AL

COMPLAINANTS

VS.

MRS. CURTIS LUKE, ET AL

DEFENDANTS

FINAL DECREE

On this day this cause came on to be heard on an af-

firmative defense raised by the Defendants, MRS. CURTIS

LUKE, ET AL, being the first defense contained in their

Answer filed by said Defendants and each party being

present in their proper person and represented by counsel

and the Court having heard argument in support of this

defense and having jurisdiction of the parties and subject

matter, doth find that the Complainants are not entitled to

the relief prayed for in their Petition to Modify and the

Court doth further find that Section 37-7-217 requires a

runoff election and, therefore, Complainants’ Petition to

Modify is not well taken and should be denied.

IT IS, THEREFORE, ORDERED, ADJUDGED AND

DECREED as follows:

1. That, the first defense raised by the Defendants,

MRS. CURTIS LUKE, ET AL, is hereby sustained.

2. That, the Complainants are not entitled to have the

former Order of this Court modified or changed to provide

for a plurality election rather than a runoff election since

the Statute provides for a runoff.

3. That, the Court has heretofore ruled that the At-

torney General of the United States would not be made a

party Defendant, and the Court has no authority to order

the Attorney General to approve the election.

4. That, the Petition filed by the Complainants May

15, 1980, be and it is hereby dismissed with the prior Order

of this Court calling the election to remain in force subject

to compliance with the Federal Voters Rights Act as previ-

ously ordered by this Court.

SO ORDERED, ADJUDGED AND DECREED in Vaca-

tion in the offices of the Chancellor in Louisville, Missis-

sippi, on this the 30th day of September, 1980.

/s/ John C. Love Jr.

~~,

--s=

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

RALPH HATHORN, et al.,

Petitioners,

vs.

MRS. BOBBY LOVORN, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the

Supreme Court of Mississippi

BRIEF OF RESPONDENTS IN OPPOSITION

Laurel G. Weir

Post Office Box 156

Philadelphia, Mississippi 39350

(601) 656-1931

Attorney for Respondents

QUESTION PRESENTED FOR REVIEW

May a state supreme court order com-

pliance with its prior directive which re-

quires a lower court to hold elections pur-

suant to state statutes, when the prior

directive does not determine the applicabil-

ity of § 5 of the Federal Voting Rights Act?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW.

TABLE OF CONTENTS. . ...+ s+ «

TABLE OF AUTHORITIES .... .

OPINION BELOW. . . . +++ « «

JURISDICTION . . . «© © «© «© «© «

STATUTES INVOLVED. ..... -»

STATEMENT OF THE CASE. ... .

REASONS FOR DENYING THE WRIT .

CONCLUSION . . «© «© «© © «© © « «

iii

TABLE OF AUTHORITIES

Cases

Allen v. State Board of Elections,

393 U.S. 544 (1969)... .. -

Carter v. Luke,

399 So. 2d 1356 (Miss. 1981) .

City of Rome v. United States,

U.S. 1 4 * . <a . 7 .

Dougherty County Board of Education

Vv. ite,

439 U.S. 32 (1978) .... -

Lovorn v. Hathorn,

365 So. 2a 947 (Miss.), cert.

denied, 441 U.S. 946 (1979). .

McDaniel v. Sanchez,

U.S. , 101 Ss. Ct. 2224

iin ee Ue ie ee wh

Perkins v. Matthews,

400 U.S. 379 (1971)... « « « »

United States v. Board of Commis-

sioners of Sheffield, A ama

v. White,

- 3 4 | SR

United States v. Board of Supervisors

of Warren county. Mississippi,

29 waite 2 . * * . . .

Statutes

Federal Voting Rights Act,

42 FA § 1973c. . . . . . .

Miss. Code Ann. § 37-7-203 (Supp.

1979) . . . = . . . . . . . . .

3, 6

No. 81-451

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

RALPH HATHORN, et al.,

Petitioners,

vs.

MRS. BOBBY LOVORN, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

BRIEF OF RESPONDENTS IN OPPOSITION

OPINION BELOW

Respondents concur with petitioners’

references to the opinion below.

JURISDICTION

Respondents concur with petitioners’

statement as to the jurisdiction of this

Court, except as to the presence of a sub-

stantial federal question, as discussed

infra.

STATUTES INVOLVED

Respondents concur with petitioners’

statement as to the statutory provision

involved.

STATEMENT OF THE CASE

Since the enactment of Miss. Code

Ann. § 37-7-203 (Supp. 1979) in 1964, the

board of trustees of local school districts

must be elected from supervisors’ districts

in Mississippi. After the passage of seven-

teen years, however, the Board of Trustees

of the Louisville Municipal Separate School

District is still not an elected body.

Since 1960 the Board has been composed of

five members, three appointed by the govern-

ing authorities of the City of Louisville

and two elected by the qualified electors

outside the City in the County of Winston.

In 1978 Respondents sued Petitioners

in the Chancery Court of Winston, seeking a

mandatory injunction to enforce the election

of a five-member school board. The Chancery

Court denied relief, but on appeal the

Supreme Court of Mississippi reversed, and

remanded the case for election of one

trustee from each supervisor's district.

Lovorn v. Hathorn, 365 So. 2d 947 (Miss.

1979). Petitioners sought a Writ of

Certiorari from this Court, arguing that

the changes in election procedure and a

state court decree were covered by § 5 of

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

§ 1973c. The Petition was denied. Lovorn

v. Hathorn, supra, cert. denied, 441 U.S.

946 (1979).

The Chancery Court outlined the elec-

tion procedure in a very detailed decree on

July 24, 1979, and ordered that it be sub-

mitted for preclearance or approval under

the Voting Rights Act. The only objection

to the procedure made by the United States

Department of Justice was that Mississippi

law required a run-off if no candidate

received a majority of votes cast.

On September 30, 1980, the Chancery Court

ordered that the election remain in force

subject to compliance with the Voting

Rights Act.

The Supreme Court of Mississippi

again reversed, and ordered that the elec-

tion be held in accordance with its original

mandate. Carter v. Luke, 399 So. 2d 1356

(Miss. 1981). The Supreme Court of Missis-

sippi refused to enforce the Chancery

Court's requirement that compliance be had

with the Voting Rights Act.

REASON FOR DENYING THE WRIT

The Petition for a Writ of Certiorari

does not present a substantial or important

federal question worthy of review. In 1978

the Supreme Court of Mississippi ordered an

election to be held in accordance with state

law. The decision here under challenge

merely ordered compliance with that original

mandate. Review by this Court would not

entail the merits of a federal question, but

rather.the relationship between two state

courts and the lower court's responsibility

to follow the dictates of a superior court.

The role of a state court in apply-

ing and enforcing the Voting Rights Act

would present important and intellectually

stimulating questions. Such questions are

not raised by the circumstances of this

case. Petitioners maintain that the elec-

tion changes are within the meaning of § 5

of the Act, and that the state supreme court

should have upheld the Chancellor's deter-

mination that the Act applies to the changes.

No other court addressed the applicability

of the Act. Under well-established prin-

ciples, it is for a local federal district

court to determine whether the change is

covered by § 5, and the District Court for

the District of Columbia has jurisdiction

to determine whether the change is discrimin-

atory. United States v. Board of Super-

visors of Warren County, Mississippi, 429

U.S. 642 (1977); Perkins v. Matthews, 400

U.S. 379 (1971); Allen v. State Board of

Elections, 393 U.S. 544 (1969). If the

Mississippi Supreme Court had made either

determination the question might arguably be

worthy of review. The court, however,

merely refused to enforce the Chancellor's

determination.

The Voting Rights Act also provides

for advance approval of the change by the

Attorney General upon submission by “the

chief legal officer or other appropriate

official" of the state or subdivision. 42

U.S.C. § 1973c. While a letter with one

objection was issued by the Department of

Justice, it was addressed to Petitioner's

Counsel of Record. Petition for Writ of

Certiorari, Appendix C at A7. Unlike other

preclearance cases reaching this Court,

none of the normal processes conducive to

the development of a complete record have

occurred in this case.

In McDaniel v. Sanchez, _ U.S. __es,s

101 S. Ct. 2224 (1981), relied on by Peti-

tioners, the Court affirmed a determination

by the Court of Appeals for the Fifth Cir-

cuit that a reapportionment plan was within

§ 5 of the Act. The present situation is

Clearly quite different, and so unique that

its recurrence is highly unlikely. Not only

is there an absence of either federal ju-

diciary involvement or a ruling on the

merits of preclearance except by the Chan-

cery Court, in addition, the local officials

here favor preclearance. Unlike the normal

situation in which local officials oppose

application of § 5, the Respondents have

fought the changes throughout the state

court system and now seek to delay their

implementation.

The decision below was not only

legally correct, it was also the fairest

and most just under the circumstances. If

the objection to the majority run-off had

prevented the election, the right to elect

local officials and one-man-one-vote

principles would have been compromised.

The change to elected rather than appointed

officials does not have the potential to

deny rights conferred by the Act or to dis-

criminate. Dougherty County Board of Educa-

tion v. White, 439 U.S. 32 (1978); United

States v. Board of Commissioners of Shef-

field, Alabama v. White, 435 U.S. 110 (1978).

If the election had been stayed pending

preclearance, the election would be under

the scheme in effect in 1964. City of Rome

v. United States, 446 U.S. 156 (1980). Con-

fusion would clearly result since it is un-

clear whether the statutory elective or the

appointive scheme would apply.

The Supreme Court of Mississippi did

not adopt an election plan, but merely or-

dered compliance with the appropriate

Mississippi statutes. Review now would

necessarily entail a determination of

whether the Attorney General could “over-

rule” a state supreme court order.

CONCLUSION

Respondents maintain that the Writ

should not be issued, as no substantial

federal question is presented. The decision

of the court below was correct, and the same

circumstances are unlikely to be repeated.

This case is not an appropriate vehicle for

determining the role of a state court under

the Federal Voting Rights Act.

Respectfully submitted,

Laurel G. Weir

Post Office Box 156

Philadelphia, Mississippi 39350

(601) 656-1931

Attorney for Respondents.

aug

m- q

JOUOIINeg

Office - Supreme Court, U.S.

* FILED

No. 81-451 enc saeeas

ALEXANDER L. Sfévas

In the Supreme Court of the United States

October Term, 1981

RALPH HATHORN, ET AL..,

Petitioners,

vs.

MRS. BOBBY LOVORN, ET AL.,

Respondents.

On Warr or CERTIORARI TO THE SUPREME COURT OF

MISSISSIPPI

BRIEF FOR THE PETITIONERS

Farr & Mayo

James C. Mayo

(Counsel of Record )

P. O. Box 509

Louisville, Mississippi 39339

DeraMus, Lewis & TUCKER

FRANK M. DeRAMUS

P. O. Box 532

Louisville, Mississippi 39339

Attorneys for Petitioners

%. L. Menomena, Ivc., 026 Cherry Street, Kansas City, Mo. 64106, (814) 421-3030

QUESTION PRESENTED

1. Whether a State Supreme Court can order non-com-

pliance with the Federal Voters Rights Act of 1965 as

Amended, Sec. 5, 42 U.S.C.A. Sec. 1973 c.

PARTIES TO THE PROCEEDING

Petitioners:

Ralph Hathorn, Mayor, City of Louisville

Charles Lawrence, City Clerk

Robert E. Clark, Jr., Alderman

Mike Cournoyer, Alderman

Andy Woods, Alderman

Bobby McWhirter, Alderman

Giles Ward, Alderman

City of Louis ille, MS, a Municipal Corporation

Thomas W. Saterfiel, Superintendent, Louisville

Municipal Separate School District

Paul Younger, Trustee

Kenny Morris, Trustee

Jerry Kemp, Trustee

Veterine Williams, Trustee

Mike Frazier, Trustee

Respondents:

Sammy Carter

Joe Goodin

Mrs. Bobby Lovorn

J. D. Eaves

Prentiss Carter

TABLE OF CONTENTS

EEE SER Sh Te os oR I

Parties to the Proceeding .........................-c-c-csc-eseseees paieeniane II

TE TE aT A ae OO ETD 1

Jurisdiction ............. eitnakinieeasepnnmeatientnienenhiidinanicsiduaeiiannibiiiia 1

SI itera esineani etic ta ieastarinetniniiai tl 2

Statement of the Case ................... riscciipeetmpaiagianedtnaiiiibiniieaniiiiaia 2

I NT i ial aetna 4

Argument—

I. The Decision of the Mississippi Supreme Court

ordering non-compliance with the Voting Rights

Act when the Justice Department had pre-

viously disapproved the submission was error

because Congress did not vest this authority in

ane Ter ae ame 4

REY cae ne a a RE SA ec 8

ISS ee PE Se Oe y

Table of Authorities

CASES

Allen v. State Board of Elections, 89 S.Ct. 817 (1969) 6

Atlantic Coast Line R. Co. v. Powe, 283 U.S. 401, 51

EES Seen NP EN I Sree 5

Lovorn v. Hathorn, 365 So.2d 947 (Miss. 1979), Cert.

denied 441 U.S. 946, 99 S.Ct. 2167, 60 L.Ed.2d 1049

SID cahllensitintileciainatichcsiseeialithatidateaeiietiahanailceaadiniaiaiitneitaatatan 2,6

McDaniel, et al. v. Sanchez, et al., 101 S.Ct. 2224 (1981)

STATUTE

Voting Rights Act of 1965, as Amended,

U.S.C.A. Sec. 1973 c

Cove

Sec. 5,

Mississippi Code of 1972, Section 37-7-203

No. 81-451

In the Supreme Court of the United States

October Term, 1981

RALPH HATHORN, ET AL.,

Petitioners,

vs.

MRS. BOBBY LOVORN, ET AL..,

Respondents.

On Writ or CERTIORARI TO THE SUPREME COURT OF

MISSISSIPPI

BRIEF FOR THE PETITIONERS

OPINION BELOW

The decision of the Supreme Court of Mississippi is

reported at 399 So.2d 1356 and is appended to the Petition

for Cert. as Appendix “A”.

JURISDICTION

The decision of the Supreme Court of Mississippi was

entered on June 3, 1981, and Rehearing denied on July 8,

1981. The Petition for a Writ of Certiorari was filed Au-

gust 28, 1981, and was granted on December 14, 1981.

STATUTE INVOLVED

Voting Rights Act of 1965, as Amended, Sec. 5, 42

U.S.C.A. Sec. 1973 c and is appended to the Petition for

Cert. as Appendix “B”.

STATEMENT OF THE CASE

Since 1960, the Board of Trustees of the Louisville

Municipal Separate School District has embraced the en-

tire County of Winston and is composed of five (5) mem-

bers: Three (3) appointed by the governing authorities

of the City of Louisville and two (2) elected by the quali-

fied electors outside the City.

Respondents sued the Petitioners in the Chancery

Court of Winston County, Mississippi, seeking to change

the method and manner of the selection of Trustees for

the school district and after the Chancellor dismissed Re-

spondents’ complaint, the cause was appealed to the Mis-

sissippi Supreme Court which reversed on January 10,

1979 in the case of Lovorn v. Hathorn, 365 So.2d 947 (Miss.

1979), Cert. denied 441 U.S. 946, 99 S.Ct. 2167, 60 L.Ed.2d

1049 (1979) requiring the election of one trustee from each

supervisor’s district pursuant to Section 37-7-203 Mississippi

Code of 1972 (Amended in 1964).

On July 24, 1979, the Chancery Court of Winston

County, pursuant to the mandate of the Mississippi Su-

preme Court, outlined the election procedure. However,

the Chancellor ordered that the election procedures as de-

creed be submitted either to the United States Attorney

General or the United States District Court for the District

of Columbia in accordance with 42 U.S.C. Sec. 1973 c.

After additional data was forwarded to the United States

Department of Justice, the Civil Rights Division of the

United States Attorney General’s office advised the Ap-

pellees in a letter, dated March 28, 1980, that it objected to

the change in the election procedure and advised the Peti-

tioners that the changes in the election procedure were

legally unenforceable, a copy of said letter from the United

States Attorney General is appended to the Petition for

Cert. as Appendix “C”.

After additional hearings, the Chancery Court of

Winston County, Mississippi, on September 30, 1980, de-

creed that the election would remain in force subject to

compliance with the 1965 Voting Rights Act and postponed

the election.

Respondents appealed to the Mississippi Supreme

Court and the Court on June 3, 1981 reversed the Chancery

Court Decree which made the election subject to com-

pliance with the Federal Voters’ Rights Act. On July 8,

1981, the Supreme Court of Mississippi denied the Petition

for Rehearing.

The Supreme Court remanded the case to the Chancel-

lor directing him to conduct the election without regard to

the Voting Rights Act of 1965. On August 4, 1981, the

Chancery Court of Winston County, Mississippi, decreed

that the election must be held and ordered Respondents to

disregard the legally unenforceable letter of the Attorney

General of the United States dated March 28, 1980, and to

otherwise ignore Section 5 of the Voting Rights Act.

The elections were held on December 5 and 19, 1981, and

new trustees were adjudicated into office December 24,

1981.

SUMMARY OF ARGUMENT

It is the position of the Petitioners that the Supreme

Court of Mississippi does not have authority to order non-

compliance with the Voting Rights Act especially since

the Civil Rights Division of the United States Department

of Justice had accepted the submission as being com-

pleted on January 28, 1980, and issued its legally unenforce-

able letter to Petitioners on March 28, 1980.

ARGUMENT

The Decision of the Mississippi Supreme Court

Ordering Non-Compliance With the Voting Rights Act

When the Justice Department Had Previously Dis-

approved the Submission Was Error Because Congress

Did Not Vest This Authority in the Covered States.

The Mississippi Supreme Court in its decision overrul-

ing the Chancery Court as (4) “the Decree calling the elec-

tion would remain in force subject to compliance with

the 1965 Voting Rights Act” does not recite any statutory

or case law authority to support the reversal so Petitioners

submit a reversal on a federal question without authority

is unprecedented.

An inference is made from the decision of the Su-

preme Court of Mississippi that since the United States

Supreme Court denied Certiorari of No. 49,446, the Missis-

sippi Supreme Court can consider the denial an adjudication

on the merits that there are no requirements for preclear-

ance under the Voting Rights Act. We respectfully submit

that a denial of Certiorari is not an adjudication on the

merits and the mere fact that the United States Supreme

Court declined to reverse or alter in any respect the prior

decision of the Mississippi Supreme Court is not controlling

on the merits of the Section 5 preclearance. Denial of

Writ of Certiorari imports no expression of opinion upon

the merits of the case. Atlantic Coast Line R. Co. v. Powe,

283 U.S. 401, 51 S.Ct. 498.

The pertinent part of the Voting Rights Act enacted

in 1965, and Amended in 1975 in Section 5 is attached as

Appendix “B” to Petition for Cert. and we respectfully

submit where reference is made to a “state or political

subdivision”, it is applicable to all branches of the state

government and its political subdivisions and would in-

clude State Supreme Court ordered changes or efforts

to administer changes by the legislative, executive and

judicial branches of state government; therefore, the Su-

preme Court of Mississippi and the Chancery Court of

Winston County are subject to the Federal Law and the

Mississippi Supreme Court is without legal authority to

mandate Petitioners to disobey the Voting Rights Act and

the Attorney General of the United States.

Even though the legislature of the State of Mississippi

enacted the amendment prior to 1965, the Respondents

acting through the State Courts seek to administer a change

in the method and manner of the election procedures of the

Louisville Municipal Separate School District different

from that in force on November 1, 1964. See Perkins v.

Matthews, 91 S.Ct. 431 (1971). This case holds that any

change in voting procedures for the City of Canton was

within the meaning of Section 5, Voting Rights Act and re-

quired compliance before implementing the change in the

election procedures. In Perkins v. Matthews, supra, the

legislature had changed the law for the election of Alder-

men prior to the enactment of Section 5, but Canton did

not attempt to change its voting procedures and comply

with the new state law until after the enactment of Sec-

tion 5. The Supreme Court of the United States in Perkins

made Section 5 applicable when any covered jurisdiction

seeks to administer voting changes.

The changes sought in the election of the Trustees of

the Louisville Municipal Separate School District are

squarely covered by Perkins and Section 5 in that the legis-

lature changed the law as to county-wide municipal sepa-

rate school district in 1964 and after the enactment of the

Act within a covered jurisdiction a state court and the

Respondents are seeking to administer legislative change.

The legislature enacted a change in Trustees from 3 ap-

pointed and 2 elected to one trustee elected in each su-

pervisor’s district in a county-wide municipal separate

school district where highways 14 and 15 intersect (Winston

County only). The Mississippi Supreme Court in 49,446

Lovorn v. Hathorn, supra, ordered the foregoing change.

The submission was made by Petitioners to the Aitor-

ney General of the United States in compliance with the

Voting Rights Act as ordered by the Chancery Court which

submission was completed on January 28, 1980. The Attor-

ney General stated his objection on March 28, 1980.

The decision of the Supreme Court of Mississippi re-

quiring the Chancery Court to implement the legally un-

enforceable procedures and voting changes and to install

into office elected trustees from each supervisor’s district

when preclearance has been denied violates Section 5 of

the Voting Rights Act of 1965. The Attorney General of

the United States has previously advised Petitioners that

the change in the election procedures were legally unen-

forceable (See Appendix “C” to the Petition for Cert.).

In the case of Allen v. State Board of Elections, 89

S.Ct. 817 (1969) an argument was made that Section 5

was not intended to apply for a change from district to

at large voting. The Supreme Court of the United States

held

“We must reject the narrow construction that Appel-

lees would give to Section 5. The Voting Rights Act

was aimed at the subtle as well as the obvious, state

regulations which have the effect of denying citizens

their right to vote because of their race. Moreover,

compatible with the decision of this Court, the Act

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

nizing that voting includes ‘all action necessary to

make a vote effective.’ 79 Stat. 445, 42 U.S.C. Section

1973 1(c) (1) (1964 ed., Supp. I). See Reynolds v.

Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d

506 (1964). We are convinced that in passing the

Voting Rights Act, Congress intended that state enact-

ments such as those involved in the instant cases be

subject to the Section 5 approval requirements.

The legislative history on the whole supports the view

that Congress intended to reach any state enactment

which altered the election law of a covered State in

even a minor way.”

On June 1, 1981, the Supreme Court of the United,

States in Number £0-180 McDaniel, et al. v. Sanchez, et al.,

101 S.Ct. 2224 (1981), in construing a Commissioner’s

Reapportionment Flan from Kleberg County, Texas, and

affirming the Fifth Circuit Court of Appeals, 615 F.2d

1023, held that whenever a covered jurisdiction submits

a proposal reflecting the policy choices of the elected repre-

sentatives of the people—no matter what constraints have

limited choices available to them—the preclearance re-

quirement of the Voting Rights Act is applicable even

though the Federal District Court had acted upon the

proposed plan before it had been submitted to the Attorney

General or the United States District Court for the District

of Columbia for preclearance. Even though the Federal

District Court had approved and ordered the redistricting,

the Supreme Court of the United States in McDaniel, et al.,

says that preclearance is required in Court ordered re-

apportionment even in the face of other constitutional

questions.

CONCLUSION

The Mississippi Supreme Court erred in reversing the

Chancery Court of Winston County as to (4) supra and

ordering non-compliance with the Voting Rights Act. The

decision of the Lower Court should be reversed and the

trustees elected pursuant to said decision should be re-

moved from office.

Respectfully submitted,

Farr & Mayo

JAMEs C. Mayo

(Counsel of Record)

P. O. Box 509

Louisville, Mississippi 39339

DErRAMus, LEwis & TUCKER

FRANK M. DeRAMUS

P. O. Box 532

Louisville, Mississippi 39339

Attorneys for Petitioners

CERTIFICATE OF SERVICE

I, James C. Mayo, one of the attorneys for the Peti-

tioners, do hereby certify that I have this day, served three

(3) true and correct copies of the foregoing Brief for the

Petitioners, to the following:

Laurel G. Weir

Attorney at Law

P. O. Box 156

Philadelphia, Mississippi 39350

This, the 15th day of January, 1982.

JAMEs C. Mayo

¥ jou

woaal

$4 | Office - Supreme Court, U.S.

iy FILED

ce No. 81-451

4 FEB 26 1962

i IN THE ALEXANDER L. STEVAS.

SUPREME COURT OF THE UNITED BTATES cierx

October Term, 1981

RALPH HATHORN, et al.,

Petitioners,

Vv.

MRS. BOBBY LOVORN, et al.,

Respondents.

On Writ of Certiorari to the

Supreme Court of Mississippi

BRIEF FOR THE RESPONDENTS

Laurel G. Weir

(Counsel of Record)

i Post Office Box 156

Philadelphia, MS 39350

(601) 656-1931

Attorney for Respondents

QUESTION PRESENTED

Whether a state supreme court can

decline to decide the applicability of

the Voting Rights Act of 1965 to a state

election, when in a prior final judgment,

wherein the question was not timely presented,

the court has ordered the election and

established the law of the case?

TABLE OF CONTENTS

QUESTICH PRESENTED . ..+ ++ + «

TABLE OF AUTHORITIES . ..+ + « »

JURISDICTION . . «© «© «© © © © © # «

STATEMENT OF THE CASE. ...+ «+ «

SUMMARY OF ARGUMENT. . . +. + + «+ «

ARGUMENT

I. THE DECISION OF THE MIS-

SISSIPPI SUPREME COURT RESTS

ON ADEQUATE AND INDEPENDENT

STATE GROUNDS, PRECLUDING

PETITIONERS FROM INVOKING

THE JURISDICTION OF THIS

ae 2 =e © «6 ¢ 6 6.6 © 2

II. THE DECISION OF THE

MISSISSIPPI SUPREME COURT

ADHERING TO ITS FORMER FINAL

ORDER WAS PROPER, WHERE THE

LOWER COURT HAD NO AUTHORITY

TO DETERMINE WHETHER COM-

PLIANCE WITH THE VOTING RIGHTS

ACT WAS REQUIRED, AND THE

ATTORNEY GENERAL HAD NO

AUTHORITY TO OVERRULE THE

PRIOR MISSISSIPPI SUPREME

COURT DECISION. . . .« «© «+ « «

CONCLUSION . * . 2 * . . . . 7 e *

CERTIFICATE OF SERVICE ...+s+ «

oiie

TABLE OF AUTHORITIES

CASES:

Allen v. State Board of Elections,

393 U.S. 544 (1969) .....

Bloeth v. State of New York, 82

S. Ct. 661 (1962) (Harlan,

Jo, 26: Ghembete). «+ « 6 © c e

Cardinale v. Louisiana, 394 U.S.

oa. Se iane 6 4.8 8 8

Carter v. Luke, 399 So. 2d 1356

it. be 6 @: 6.6 8 2 6".

Coe v. Armour Fertilizer Works,

See Sale ee cee

Continental ntine and Rosin

Co. v. Gu Naval Stores

Co., 244 Miss. 465, 142 So.

_ » £ joni are

Hen v. State of Mississippi,

> 3 U.S. 4 3 ( 9 5) . a . + .

Herndon v. State of Georgia,

aoe Gels Gee CEEeE 43210 * 3

Lovorn v. Hathorn, 365 So. 2d 947

(Miss.), cert. denied, 441

U.S. 946 (1979) . ” . . . . .

McDaniel v. Sanchez, U.S. e

Se Cee et

Machagae v. Tyler, 436 U.S. 499

7 . . . * > . . 7 a . . -

Mississippi College v. May,

241 ise oF 128 So. 2d

557 (1961) . . . . o +. . 7 . .

-iii-

PAGE

TABLE OF AUTHORITIES, Continued

CASES, Contirued:

New and Huyhes Drilling Co. v.

gaita, 219 So. 2d 657 (Miss.

° . * * * * . . . =. . .

Radio Station WOW, Inc.

Johnson, ts U.S. 136 (1945).

Raley v. State of Ohio, 3.0

UsBo. Ese (LUSR) 2-0 oe o

Reece v. State of Georgia, 350

U.S. 85 ( 955) . . . - . . a

Rigdon v. General Box Co., 249

Miss. 239, 162 So. 2d 863

(1964). . «© © © © © © © ©

Rio Grande Western Railway v.

Stringham, 239 U.s. 44

Street v. New York, 394 U.S. 576

(1969). . . . . . . . o . .

United States v. Denver & Rio

Grande Railroad, 191 U.S. 84

Urie v. Thompson, 337 U.S. 163

th hs & wie le «© 6 @

Webb v. Webb, U.S. __, 101

Da ee See CRONE). « @ 6 0

United States v. Warren Count

Board of Supervisors, r¥E U.S.

etl. + 6 & f

PAGE

. 19

- 20

. il, 12, 15

18, 19

TABLE OF AUTHORITIES, Continued

CASES, Continued: PAGE

Zacchini v. Scripps-Howard

Broadcasting Co., 433 U.S.

77) ad . . . >. . . . 7 sl . . . 10

STATUTES:

Miss. Code Ann. § 11-3-31 (1972)

M.C.A. § 37-7-203 (Supp. 1979) » 6 © ®& e Ze 3

M.C.A. § 37-7-217 (Supp. 1979) ae Se” ae ee 4

Voting Rights Act of 1965,

42 iF § 1973c . 7. * . . 2 . * . 3e 23

42 U.8.C. $ 19733(@) . . © © © © © © © 0 2

-V-

No. 81-451

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

RALPH HATHORN, et al.,

Petitioners,

MRS. BOBBY LOVORN, et al.,

Respondents.

On Writ of Certiorari to the

Supreme Court of Mississippi

BRIEF FOR THE RESPONDENTS

JURISDICTION

Petitioners have not cited the statu-

tory provision upon which jurisdiction rests.

As discussed herein, Respondents maintain

that this case is not within the jurisdiction

of this Court.

STATEMENT OF THE CASE

This action, instituted to compel

an election of the Board of Trustees

of the Louisville, Mississippi Municipal

Separate School District pursuant to

Miss. Code Ann. § 37-7-203 (Supp. 1979),

was initially filed by Respondents in

the United States District Court for

the Northern District of Mississippi.

Since 1960, three of the trustee positions

had been filled through appointment by

the governing authorities of the City

of Louisville, and the remaining two posi-

tions were elective. No black had ever

been appointed or elected to the Board

of Trustees. After the federal district

court abstained (49,446 R. 10-11),

1 As so found by the United States

Department of Justice. See Pet. for Cert.

at A8.

2 "49,446 R." refers to the record

of this case trom the filing of the complaint

to the Supreme Court of Mississippi's

first decision. "52,758 R." refers to

the record following the Supreme Court

of Mississippi's first remand of the case

to the chancery court.

-3-

the case proceeded through the Mississippi

state courts, wherein Petitioners maintained

that the state election statute was unconsti-

tutional under state law. Final judgment

was rendered by the Supreme Court of Mis-

sissippi, Lovorn v. Hathorn, 365 So. 2d

947 (Miss. 1979), wherein the court ordered

the chancellor to hold an election in

accordance with state law. At no time

had the Petitioners raised the contention

that the election could not be held because

M.C.A. § 37-7-203 required preclearance

under section five of the Voting Rights

Act, 42 U.S.C. § 1973c.

In a petition for rehearing filed

after rendition of the initial Mississippi

Supreme Court decision, Petitioners raised

for the first time the contention that

the election pursuant to state law would

violate a federal statute. The state

supreme court denied the petition for

rehearing without issuing a written opinion.

-4-

Petitioners again raised the question

of compliance with the Voting Rights Act

in a petition for a writ of certiorari,

which was denied by this Court, Lovorn

v. Hathorn, supra, cert. denied, 441 U.S.

946 (1979). On remand, the Chancery Court

of Winston County issued a decree outlining

the election procedure, as ordered by

the Mississippi Supreme Court, but also

deciding that the election was subject

to the Voting Rights Act, and that approval

of the United States Attorney General

was necessary. (52,758 R. 139, 146.)

The Attorney General disapproved of the

ordered election, objecting to the require-

ment that a candidate obtain a majority,

rather than a plurality, of votes cast

to be elected, as provided in M.C.A. §

37-7-217.

The Supreme Court of Mississippi

reversed, Carter v. Luke, 399 So. 2d 1356

(Miss. 1981), holding that the chancery

-5-

court had disobeyed its prior mandate

by not calling the election in accordance

with state law. The court held that the

law of the case had been established in

its prior decision, and did not decide

whether, as a matter of federal law, the

election of the Board of Trustees had

to be approved under the Voting Rights

Act. For the second time the Supreme

Court of Mississippi ordered an election

to be held.

The chancery court, the Mississippi

Supreme Court, and this Court denied Peti-

tioners' motions for a stay of the election.

The election was conducted on December

5, 1981, with a run-off occurring on December

19. Petitioners' second petition for

a writ of certiorari was granted on December

14, 1981.

-6-

SUMMARY OF ARGUMENT

The decision below rested on an adequate

state ground, as the state supreme court

refused to rule on the Voting Rights Act

issue because the law of the case had

been established in a prior decision.

Questions arising during an initial appeal

in state court can be reviewed by the Supreme

Court even after a remand and second appeal,

if the first decision on appeal was not

subject to review at that time and if

the issue was timely presented. Here,

the prior Mississippi Supreme Court decision

was final, and thus was subject to review

when it was rendered. Moreover, Petitioners

did not timely raise their federal claim

when it was presented for the first time

in a petition for rehearing.

Questions involving application of

the Voting Rights Act must be resolved

in federal court. The chancery court

was not authorized to determine that the

aFo

election was covered by the Act, and the

supreme court correctly refused to affirm

that determination. Since the state supreme

court had ordered the election to be held,

the Attorney General had no authority

to “overrule” that decision without follow-

ing recognized remedies available in federal

court.

ARGUMENT

POINT I

THE DECISION OF THE MISSISSIPPI

SUPREME COURT RESTS ON ADEQUATE

AND INDEPENDENT STATE GROUNDS,

PRECLUDING PETITIONERS FROM

INVOKING THE JURISDICTION OF

THIS COURT.

The Supreme Court of Mississippi,

in the decision appealed from, did not

rule on whether the election of the local

Board of Trustees, as a matter of substan-

tive law, was subject to compliance with

the Voting Rights Act. Instead, the court

held that the chancery court had disobeyed

the established law of the case as expressed

in the prior supreme court mandate. The

decision clearly rests on an adequate

state procedural ground which serves a

legitimate state interest, thereby preclud-

ing Petitioners from invoking the jurisdic-

tion of this Court.

As stated by the court in Continental

Turpentine and Rosin Co. v. Gulf Naval

Stores Co., 244 Miss. 465, 142 So. 2d

200, 206-07 (1962): "The doctrine of ‘law

of the oase* 40 a rule of practice adopted

by the courts and rests upon principles

of res judicata. The rule is distinct

from the rule of stare decisis and it

is not a limitacion upon the power of

the court." See also Mississippi College

v. May, 241 Miss. 359, 128 So. 2d 557,

558 (1961) (the doctrine of the law of

the case is founded on public poiicy and

the interests of orderly and consistent

judicial procedure). The court below

-9-

therefore relied on an established and

legitimate state rule of practice to dispose

of the case. Purswant to M.C.A. § 11-3-31

(1972), after judgme..t by the supreme

court, the clerk of the court below must

"issue process to enforce the judgment

according to its terms." After the supreme

court ordered the lower court to hold

an election, the lower court refused to

call the election until there was compliance

with the Voting Rights Act. The chancery

court failed to abide by the mandate of

the Supreme Court of Mississippi.

It is well settled that a state court

judgment will not be reviewed by the Supreme

Court when the decision rests on independent

and adequate state grounds. Cardinale

v. Louisiana, 394 U.S. 437, 439 (1969);

Henry v. State of Mississippi, 379 U.S.

443, 446 (1965). "If the judgment below

rested on an independent and adequate

state ground, the writ of certiorari should

-10-

be dismissed as improvidently granted

- « « «”" Zacchini v. Scripps-Howard Broad-

casting Co., 433 U.S. 562, 566 (1977)

(citation omitted). When the state ground

is a procedural rule which precludes the

assertion of a federal claim, the state

must have a legitimate interest in enforcing

its procedural rule. Michigan v. Tyler,

436 U.S. 499, 512 n. 7 (1978); Henry,

supra, 379 U.S. at 447.

The rule that a litigant cannot raise

new legal issues once an appellate court

has determined the issues of the case

does serve such legitimate state interests.

Without the doctrine of the "law of the

case," the termination of any litigation

would have to await the exhaustion either

of the resources of the unsuccessful party

or the resourcefulness of his counsel.

When the law is established on the first

appeal, the parties and the lower courts

are afforded guidance in any further

“lle

proceedings. If an unsuccessful party

was free to continually raise new issues

throughout the proceedings, or to relitigate

issues already decided, any semblance

of order in state judicial proceedings

would be destroyed. The Supreme Court

of Mississippi resolved all issues timely

raised regarding the election during the

first appeal, and was justified in relying

on the law of the case when Petitioners

attempted to raise a new issue thereafter.

Respondents recognize that a court's

reliance on the state ground of the estab-

lished "law of the case” does not necessarily

preclude Supreme Court review. As stated

by the Court in Reece v. State of Georgia,

350 U.S. 85, 87 (1955):

We have jurisdiction to consider

all of the substantial federal

questions determined in the

earlier stages of the litigation,

Urie v. Thompson, 337 U.S.

163, 172-173, 69 S. Ct. 1018,

o12-

1025-1026, 93 L.Ed. 1282,

and our right to re-examine

such questions is not affected

by a ruling that the first

decision of the state court

became the law of the case,

Davis v. O'Hara, 266 U.S.

314, 45 S.Ct. 104, 105, 69

L.Ed. 303.

The factual situation in Reece demonstrates

the circumstances which necessitate the

above-stated rule. After being convicted

at trial, the defendant in Reece appealed

to the Georgia Supreme Court, alleging

numerous errors, including the systematic

exclusion of blacks from the grand jury

which returned the indictment. The state

supreme court held that the objection

to the composition of the grand jury was

not timely, but reversed and remanded

for a new trial on another ground. The

defendant was again convicted, and appealed

to the Supreme Court.

Since the defendant in Reece won

@-13-

a new trial on his first appeal, the first

Opportunity for the United States Supreme

Court to review the case came after the

second conviction. While the initial

state supreme court decision became the

"law of the case," review of any issues

decided therein would of necessity have

to be postponed until after remand and

a new trial. When a decision not subject

to review establishes the law of the case,

the issues raised must remain open for

review by the Supreme Court even after

the case proceeds through the state system

a second time. A contrary rule would

in effect immunize any issues resolved

on the first appeal from federal review.

This rationale was recognized by the

Court in United States v. Denver & Rio

Grande Railroad, 191 U.S. 84, 93 (1903),

wherein the Court stated:

While the supreme court

of New Mexico upon this second

writ of error may have considered

-14-

itself bound by its decision

upon the question here involved

upon the first writ as the

law of the case, we are not

ourselves restrained by the

same limitation. As its judg-

ment upon the first writ was

merely for a reversal of the

court below, and for a new

trial, such judgment, not

being final, could not be

made the subject of a writ

of error from this court.

Upon the present writ, however,

we are at liberty to revise

the action of the court below

in both instances.

See also Urie v. Thompson, 337 U.S. 163,

171 (1949) (respondont's contention that

an issue, raised on the first but not

second appeal in state court, was not properly

before the Court was meritless, as "peti-

tioner has brought the claim to this Court

at his first opportunity”); and Coe v.

Armour Fertilizer Works, 237 U.S. 413,

418-19 (1915) (petitioner was not precluded

-15-

by the law of the case established on

the first appeal, when it was not until

the second appeal that a final judgment

subject to review was issued).

In the instant case, in contrast

to Reece and the cases discussed supra,

the initial decision by the Supreme Court

of Mississippi was a final judgment subject

to review. While the opinion certainly

contemplated further proceedings in the

court below, all legal issues had been

resolved. All that was left for the chancery

court to perform was the ministerial duty

of ordering the election in accordance

with state law as interpreted by the Missis-

sippi Supreme Court. As pointed out by

the court below, review was sought by

Petitioners at this stage, and was denied.

Carter v. Luke, supra, 399 So. 2d at 1358.

The court's opinion does not, as suggested

by Petitioners, raise the inference that

the prior denial of certiorari was an

-16-

affirmance on the merits. The decision

below merely points out that the final

judgment which had established the law

of the case had not been modified by this

Court, and was therefore still binding.

As noted above, it is essential that the

Supreme Court be able to review issues

not decided in the decision appealed from,

but raised in an earlier interlocutory

proceeding between the parties. The rule

loses its rationale here, however, where

the earlier decision was final and subject

to review by this Court.

In Rio Grande Western Railway v.

Stringham, 239 U.S. 44 (1915), the plaintiff

brought suit to quiet title to land. The

defendant won at trial but the state supreme

court reversed, finding that the plaintiff

had a right-of-way to the land in question.

On remand, the plaintiff asserted title

in fee simple, rather than a mere right-

of-way. Judgment was entered according

@17J=

to the first appellate decision, and the

plaintiff again appealed. The state supreme

court affirmed, relying on the established

law of the case. Ruling that no appeal

would lie from the second state supreme

court opinion, the Court stated significantly

as follows:

Manifestly the first judgment

was final within the meaning

of Jud. Code, § 237. It disposed

of the whole case on the merits,

directed what judgment should

be entered and left nothing

to the judicial discretion

of the trial court. Board

of Commissioners v. Lucas,

93 U.S. 108; Bostwick v. Brinker-

hoff, 106 U. S. 3; Mower v.

Fletcher, 114 U. S. 127; Chesa-

peake & Pot. Tel. Co. v. Manning,

186 U.S. 238. And as the

question sought to be presented

arises upon the first judgment—

it being final in the sense

of § 237—it is apparent that

the writ of error addressed

to the second judgment presents

=18<

nothing reviewable here. See

Northern Pacific R. R. v.

Ellis, 144 U. S. 458; Great

West. Tel. Co. v. Burnhan,

162 U.S. 339; Chesapeake &

Ohio Ry. v. McCabe, 213 U.S.

207, 214.

239 U.S. at 47. Similarly, the writ of

certiorari addressed to the second Supreme

Court of Mississippi decision presents

nothing reviewable here.

A second reason exists which precludes

Petitioners from invoking the jurisdiction

of this Court. Even if review of questions

from the first appeal is available, it

is axiomatic that any federal question

made the subject of a writ of certiorari

must have been timely raised and presented.

The final judgment of a state court can

be reviewed only if the record shows ex-

pressly or by clear implication that the

federal claim was adequately presented

in the state system. Webb v. Webb,

-19-

U.S. , 101 S. Ct. 1889, 1892 (1981);

Raley v. State of Ohio, 360 U.S. 423,

435 (1959). The Supreme Court of Mississippi

did not rule on the question of the Voting

Rights Act, raising a presumption that

the omission was due to the want of a

proper presentation in the state court.

Webb, supra, 101 S. Ct. at 1891; Street

v. New York, 394 U.S. 576, 582 (1969).

The question of the Voting Rights

Act was initially raised in a petition

for rehearing after the first supreme

court opinion. In Mississippi, only in

exceptional cases will the court examine

a point raised for the first time in a

petition for rehearing. New and Hughes

Drilling Co. v. Smith, 219 So. 2d 657,

661 (Miss. 1969). On appeal to the state's

highest court, "an appellee should anti-

cipate that the case may be reversed on

the issues raised by appellant, and if

he wishes to raise a point in event of

-20-

reversal he must do so in his brief, other-

wise he waives it." Rigdon v. General

Box Co., 249 Miss. 239, 162 So. 2d 863,

864 (1964). Moreover, this Court has

held that an attempt to raise a federal

question for the first time in a petition

for rehearing after judgment of a state

supreme court comes too late to be the

basis for Supreme Court review. Radio

Station WOW, Inc. v. Johnson, 326 U.S.

120, 128 (1945); Herndon v. State of Georgia,

295 U.S. 441, 443 (1935); see also Bloeth

v. State of New York, 82 S. Ct. 661, 662

(1962) (Harlan, J., in chambers) (Court

is without jurisdiction to hear case where

the federal questions were not raised

in the state court until the second motion

for reargument).

The federal question regarding the

Voting Rights Act was not adequately presented

during the first appeal so as to permit

the invoking of Supreme Court review.

-2l<-

Petitioners cannot now revive the issue

merely because the chancery court erroneous-

ly considered the issue, an action which

was contrary to the supreme court's mandate.

Respondents are not suggesting that

potential coverage under the Voting Rights

Act can be waived. In an action between

private litigants, however, the Act can

be used as a defense only if it is timely

raised. Respondents sued the Petitioners

to compel an election under state law.

Ifthe Voting Rights Act was to be used

to defend against the requested election,

it would have to be adequately presented

in the state court. The Petitioners,

as private litigants, could at any time

have invoked the jurisdiction of the local

federal district court for a declaratory

judgmert that the election was subject

to the federal statute. The United States

Justice Department has also filed suit,

alleging that the election was held without

-22-

the necessary federal approval. There

is, therefore, no chance that the important

policies underlying the Voting Ricvhts

Act will be subverted by allowing the

lower court's decision in this case to

stand.

The decision of the Supreme Court

of Mississippi rests on an adequate state

ground, and the Petitioners have failed

to assert their federal claim in a timely

manner.

POINT II

THE DECISION OF THE MISSISSIPPI

SUPREME COURT ADHERING TO

ITS FORMER FINAL ORDER WAS

PROPER, WHERE THE LOWER COURT

HAD NO AUTHORITY TO DETERMINE

WHETHER COMPLIANCE WITH THE

VOTING RIGHTS ACT WAS REQUIRED,

AND THE ATTORNEY GENERAL HAD

NO AUTHORITY TO OVERRULE THE

PRIOR MISSISSIPPI SUPREME

COURT DECISION.

From the institution of this case

in federal district court through litigation

in the Mississippi state court system,

=23<

the Repondents, as concerned citizens

of Winston County, have sought to compel

the election of the previously appointed

local Board of Trustees. At each stage

of the proceedings the Petitioners,

incumbent office holders, have sought

to defeat or delay the election, first

alleging state constitutional violations

and then a violation of the Voting Rights

Act. The present action certainly does

not fit the scenario contemplated by

42 U.S.C. § 1973c, which becomes relevant

"whenever a state or political subdivision

- « + Shall enact or seek to administer"

any covered change. It has been private

litigants, and not the Petitioners,

who have sought to bring about or administer

the change from appointed to elected

officials.

The Petitioners maintain that the

Supreme Court of Mississippi "does not

have authority to order non-compliance

@24-

with the Voting Rights Act especially

since . .. the United States Department

of Justice had . .. issued its legally

unenforceable letter ... ." (Pet.

Brief at 4.) Respondents answer initially

that the decision of the Supreme Court

of Mississippi, as discussed supra,

in no respect constitutes the ordering

of noncompliance with the Voting Rights

Act. In addition, a necessary corollary

to the proposition that a state supreme

court does not have authority to order

noncompliance is that the lower state

court had no authority to order compliance.

In this case, the chancery court did,

however, determine that the election

had to comply with the Voting Rights

Act.

With respect to judicial involvement

under the Voting Rights Act, "Congress

intended to treat ‘coverage’ questions

differently from ‘substantive discrimination'

-25-

questions." Allen v. State Board of

Elections, 393 U.S. 544, 559 (1969).

By the very provisions of the statute,

however, it is evident that Congress

intended all questions to be resolved

in federal court. The substantive dis-

crimination questions are reserved for

the federal district court for the District

of Columbia, while the underlying question

of coverage, in a suit brought by a

private litigant or the Attorney General,

is to be decided by a local three-judge

federal district court. United States

v. Warren County Board of Supervisors,

429 U.S. 642, 645-46 (1977). The question

of coverage involves several determinations.

Whether the public body is a “political

subdivision,” whether the proposed change

is within the meaning of a "voting qualifica-

tion . . . standard, practice, or procedure,”

and whether the change was "in force

or effect on November 1, 1964" are all

=26-

questions which must be resolved to

reach the ultimate question of coverage.

These questions, all matters of federal

law, are patently not suited for a lower

state court. The chancery court is

not empowered to make this determination

under the Voting Rights Act. While

the actions of the lower state court

in this case were improper, an even

more ominous possibility exists if that

court can determine the question of

coverage. The state court could erroneous-

ly decide that compliance with section

five was, as a matter of substantive

law, unnecessary. Significant election

changes could be allowed which would

violate the principles intended to be

protected by the Act. The resolution

of the question of coverage must be

reserved for the local federal court.

It is not, of course, always necessary

to have a judicial declaration of "coverage"

@2J-

before section five is applied. The

state or political subdivision can institute

an action in the Federal District Court

for the District of Columbia for a declaratory

judgment that the proposed change has

no discriminatory purpose or effect.

The proposed change may also be initially

submitted to the Attorney General. Presumably,

Petitioners, in their capacity as private

individuals, could also have asked the

federal district court to determine

the question of coverage. Petitioners

did not opt for any of these alternatives.

Although submission tc the Attorney

General was made, it was only after

the chancery court decided that the

Act was applicable and ordered the submis-

sion. The chancery court was without

authority to make the determination,

and the Supreme Court of Mississippi

was correct in not affirming the lower

court's decision.

-28-

The Petitioners also attach significance

to the fact that the decision under

review came after the Attorney General's

letter objecting to the election. In

actuality, the letter was subsequent

to the first Mississippi Supreme Court

decision which ordered the election.

By arguing that the state supreme court

should have changed its prior decree

because of the Attorney General's objection,

Petitioners argue that, in effect, the

Attorney General can overrule a decision

of the Supreme Court of Mississippi.

The Voting Rights Act does not entail

such an extensive grant of power.

In McDaniel v. Sanchez, U.S. __,

101 S. Ct. 2224 (1981), the county submitted

a new reapportionment plan to the federal

district court which had found the existing

apportionment plan unconstitutional.

The court entered an order approving

the new plan, and holding as a matter of

-29-

law that the Voting Rights Act did not

require preclearance. The Court of

Appeals for the Fifth Circuit reversed,

finding that preclearance was required.

On appeal, the Supreme Court affirmed,

hoiding that a plan which reflects the

policy choices of the elected representatives

of the people does not constitute a

court-ordered plan exempt from preclearance.

101 S. Ct. at 2238. The decision in

McDaniel does not support the proposition,

implicit in Petitioner's brief, that

the United States Attorney General may

veto the final judgment of a state supreme

court by issuing an objection under

the Voting Rights Act.

If the Attorney General believes

that there is, or has been, a violation

of the Voting Rights Act, he may seek

preventive or injunctive relief in federal

court. 42 U.S.C. § 1973j(d). While

the Attorney General may prevent a state

-30-

or political subdivision from implementing

a voting change by interposing an objection,

there is no indication that Congress

vested him with power to supersede final

state court judgments by issuing a pre-

clearance letter. If the Attorney General

could “overrule” the final judgment

of a state supreme court, any opinion

interpreting state election laws would

not be final in the true sense until

the Attorney General had voiced his

opinion.

The opinion in McDaniel involved

a federal court order which included

a decision on the preclearance question,

and not a state court order to comply

with state law, such as exists in this

case. If federal interests warrant

an intrusion on the principles of federal-

state comity, by the modification of

a final state court decree, that intrusion

should not be in the guise of a letter

=3i-

from the Attorney General. Congress

has vested jurisdiction over questions

regarding the Voting Rights Act in federal

court, and the United States Department

of Justice has brought suit there over

this election. That action will produce

a more complete record worthy of review,

as opposed to a state court proceeding

wherein the Voting Rights Act is interjected

at a late stage. The Chancery Court

of Winston County erred in determining

the question of compliance with the

Voting Rights Act, and the Supreme Court

of Mississippi properly refused to enforce

that portion of the decree.

CONCLUSION

The Supreme Court of Mississippi

was correct in refusing to enforce that

portion of the chancery court's decree

which called for compliance with the

Voting Rights Act. For the reasons

-32-

cited herein, Respondents respectfully

request that the writ of certiorari

be dismissed as improvidently granted,

or in the alternative, that the decision

below be affirmed. If the Court finds

that reversal of the decision is necessary,

Respondents request that any relief

be prospective in nature, allowing the

election of December 5, 1981, to remain

unaffected.

Respectfully submitted,

Laurel G. Weir

(Counsel of Record)

Post Office Box 156

Philadelphia, MS 39350

(601) 656-1931

Attorney for Respondents

-33-

CERTIFICATE OF SERVICE

I, Laurel G. Weir, attorney for

Respondents, do hereby certify that

I have this day served three (3) true

and correct copies of the foregoing

Brief for the Resvondents, to the following:

James C. Mayo

Fair & Mayo

Post Office Box 509

Louisville, MS 39339

Attorneys for Petitioners

Rex E. Lee

Solicitor General

Department of Justice

Washington, DC 20530

This, the 24th day of February 1982.

Laurel G. Weir

SB}2IS paqun

aug SNOWY

yj V8 - Supreme Court, U.S.

FILED }

FEB 20 1962

No. 81-451

STEVAS,

CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1981

RALPH HATHORN, ET AL., PETITIONERS

Mrs. BoBBy LOVORN, ET AL.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

Rex E. LEE

Solicitor General

Wm. BRADFORD REYNOLDS

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

BARBARA E. ETKIND

Assistant to the Solicitor General

BRIAN K. LANDSBERG

JOAN A. MAGAGNA

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

- Whether, in a suit brought by private citizens seek-

ing the enforcement, for the first time, of a 1964 state

statute changing the electoral system for the Board

of Trustees of the Louisville, Mississippi, Municipal

Separate School District, the Mississippi Supreme

Court erred in ordering implementation of the statute

without preclearance under Section 5 of the Voting

Rights Act of 1965.

(1)

TABLE OF CONTENTS

Page

Interest of the United States _.......

EE ES ee 2

I A I ._snntenenieniibiententasbinene 10

Argument 12

Conclusion 19

TABLE OF AUTHORITIES

Cases:

Allen v. State Board of Elections, 393 U.S. 544...... 15, 16

Atlantic Coast Line R. R. v. Powe, 283 U.S. 401.... 12

Brown V. Allen, 844 U.S, 448 .................................... 12, 13

Chessman V. Teets, 354 U.S. 156 ...........-.. oe 13

Cincinnati Street Ry. v. Snell, 179 U.S. 395 ............ 13

Connor V. Johnson, 402 U.S. 690 —...-.-.-. 18

Dougherty County Board of Education v. White,

GE eee eae 11, 14, 15

East Carroll Parish School Board v. Marshall, 424

Ee ee a 18

Hamilton-Brown Shoe Co. v. Wolf j Bros. & Co., 240

Se 12, 13

Ne Ws I, CIID Os GO iccectecescecncnsneccnnteneitiirene 12

Hughes Tool Co. v. Trans World Airlines, 409 U.S.

pS SS ee Pe 10, 12, 13

Laclede Gas Light Co. v. Public Service Commis-

Se 13

McDaniel v. Sanchez, No. 80-180 (June 1, 1981) .... 11, 15,

17, 18, 19

Mercer V. Theriot, 877 U.S. 152 ................................ 13

Perkins v. Matthews, 400 U.S. 379 .......... 11, 15, 16, 17, 19

Reece Vv. Georgia, 350 U.S. 85 -.................. lisccisins 10, 13

South Carolina v. Katzenbach, 383 U.S. 301 .......... 14

Stone v. Powell, 428 U.S. 465 14

United States v. Sheffield Board of Commissioners,

a 15

United States v. Board of Supervisors, 429 US.

642 . 14

(mi)

Cases—Continued Page

United States v. Carver, 260 U.S. 482 12

Urie v. Thompson, 337 U.S. 163 13

Wade V. Mayo, 334 U.S. 672 .......-......22...--...--0ec--eeeeee 12

Wise v. Lipscomb, 437 U.S. 535 18

Constitution, statutes and regulations:

Miss, Const., Art. 4, § 90 4

Voting Rights Act of 1965, Section 5, 42 U.S.C.

1973¢ passim

Miss. Ann. Code:

§ 37-5-1 (1972) ~

I a rrrresnnandictiinibintsenigeieninns 2

§ 37-7-203 (Supp. 1981) -..................... ...B, 4, 5, 12, 17

§ 37-7-209 (Supp. 1981) 6

§ 37-7-217 (Supp. 1981) 6, 8, 12

§ 37-7-701 (1972) 8

§ 37-7-717(a) (1972) 8

1953 Miss. Laws Extra. Sess. ch. 12, §§ 7(b) and

9(c) 7

ES SE ene 16

28 C.F.R. 51.4 14

28 C.F.R. 51.4(a) 15

Miscellaneous :

80 Fed. Reg. 9897 (1965) 14

46 Fed. Reg. 870 et seq. (1981) ............................ 18

ee TE crecrcnnsecccccnenceestmntnncnptentiiciaone 18

Mississippi Officiai and Statistical Register (1980-

1984) 8

S. Rep. No. 94-295, 94th Cong., ist Sess, (1975) ... 15

R. Stern & E. Gressman, Supreme Court Practice

(5th ed. 1978) 13

In the Supreme Court of the United States

OCTOBER TERM, 1981

No. 81-451

RALPH HATHORN, ET AL., PETITIONERS

Mrs. BoBBy LOVORN, ET AL.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This case raises a question concerning the applica-

tion of Section 5 of the Voting Rights Act of 1965, 42

U.S.C. 1973c. The Attorney General has authority

under Section 5 to review changes in election proce-

dures submitted by covered jurisdictions in order to

determine whether such changes have been shown tc

have neither the purpose nor the effect of denying or

abridging the right to vote on account of race or color.

The Attorney General also has authority under the

Act to initiate suits to prevent implementation of

changes in election laws prior to compliance with the

preclearance procedures of Section 5. Indeed, pur-

suant to his authority under Section 5, the Attorney

(1)

General entered an objection to the voting change at

issue in this case on March 28, 1980 (Pet. App. A3,

A7-A9). On December 1, 1981, the United States

filed suit in the United States District Court for the

Northern District of Mississippi seeking to enjoin im-

plementation of the voting change involved here be-

cause it has not been precleared under Section 5." The

Court’s resolution of the question presented by this

case thus will directly affect the Attorney General’s

statutory responsibilities. The United States has pre-

viously participated either as a party or as amicus

curiae in virtually all cases in this Court involving the

Voting Rights Act.

STATEMENT

1. This case involves the electoral system for the

Board of Trustees of the Louisville, Mississippi, Mu-

nicipal Separate School District.2 Since 1960, the

Louisville School District has been the only school dis-

1On December 4, 1981, the district court denied the United

State’s application for temporary restraining order seeking

to prevent the application of the voting change, insofar as it

incorporates a majority vote requirement (see pages 7-8 and

note 11, infra), in the election held December 5, 1981.

2School districts in Mississippi are divided into three

general categories. “Municipal separate school districts” are

districts that include the territory within the corporate limits

of a municipality or both the territory within the corporate

limits and “added territory” outside the corporate limits.

“County-wide school districts” are districts that include all

of the territory of a county exclusive of any territory em-

braced within a municipal separate school district. All school

districts that do not fit within the first two categories, includ-

ing school districts embracing territory in two or more coun-

ties, are known as “consolidated school districts.” Miss. Code

Ann, § 37-7-1 (1972).

trict in Winston County, Mississippi, and has covered

all of Winston County. As of 1978, the population of

Winston County was approximately 18,400, with ap-

proximately 7,000 persons living within the City of

Louisville. Two thousand six hundred and seventy-

five of the pupils in the school district resided outside

Louisville and 1,418 pupils lived within the city lim-

its (J.A. 7-8). Until implementation of the voting

change at issue in this case, three of the members

of the five-member Board of Trustees were appointed

by the Mayor of Louisville and the city aldermen.*

The other two members were elected at-large by the

qualified electors of the school district residing out-

side the city (Pet. App. A2; J.A. 8).

In 1964, the Mississippi legislature enacted the pro-

vision now codified in Miss. Code Ann. § 37-7-203

(Supp. 1981). Section 37-7-203 provides, in pertinent

part:

The boards of trustees of all municipal sepa-

rate school districts created under the provisions

of Article I of this chapter, either with or with-

out added territory, shall consist of five (5) mem-

bers, each to be chosen for a term of five (5)

years, but so chosen that the term of office of one

(1) member shall expire each year. * * * [I]n

any county in which a municipal separate school

district embraces the entire county in which

Highways 14 and 15 intersect, one (1) trustee

shall be elected from each supervisors district.

It is not disputed that Winston County is the only

county in Mississippi in which Highways 14 and 15

* The Mayor and Board of Aldermen of Louisville are elected

by the qualified electors residing within the corporate limits

of the city.

intersect (49,446 R. 57-58; J.A. 8).* The statute was

not implemented because, in the view of local officials,

it was invalid under a provision of the Mississippi

Constitution that prohibits local, private or special

legislation.*

2. In 1975, respondents, five adult citizens of Win-

ston County residing outside Louisville, filed this ac-

tion in the Chancery Court of Winston County,’ seek-

ing to enforce the 1964 statute’s provision for election

of one trustee from each supervisor’s district (49,446

449,446 R.” refers to the record of this case from the

filing of the complaint to the Mississippi Supreme Court’s

first decision. “52,758 R.” refers to the record following the

Mississippi Supreme Court’s first remand of the case to the

Chancery Court.

5 Miss. Const. Art. 4, § 90 provides, in relevant part:

The legislature shall not pass local, private, or special

laws in any of the following enumerated cases, but such

matters si.all be provided for only by general laws, viz.:

* * * * *

(p) Providing for the management or support of

any private or common school, incorporating the

same, or granting such school any privileges * * *.

* Respondents initially filed suit in federal court. The

United States District Court for the Northern District of

Mississippi abstained, staying the federal court proceedings

in order to give the Mississippi state courts an opportunity to

construe § 37-7-203, but retaining jurisdiction pending the

state court proceedings (49,446 R. 10-11). Following the

Mississippi Supreme Court’s first decision and pursuant to a

notice of voluntary dismissal by stipulation filed by the parties,

the district court dismissed the federal action without preju-

dice (52,758 R. 236). Respondent’s motion to reinstate the

federal case (52,758 R. 250-252) was denied on August 25,

1980.

R. 1-5).7 Respondents named as defendants the City

of Louisville, its mayor, other city officials, the school

superintendent, the incumbent members of the board

of trustees and Winston County election officials. The

Chancery Court dismissed respondents’ complaint,

holding that the reference in § 37-7-203 to the inter-

section of Highways 14 and 15, which singled out

Winston County, “has no relationship whatsoever to

the means of electing Trustees for the School Dis-

trict,” and therefore rendered that statute’s provision

for single-member districts violative of the Missis-

sippi Constitution’s prohibition of local, private or

special legislation (see note 5, supra) (49,446 R. 109-

128).

The Mississippi Supreme Court reversed (J.A. 6-

18). That court held (id. at 14) that while § 37-7-

203’s reference to the intersection of Highways 14

and 15 was unconstitutional, the statute’s other cri-

terion—that a municipal separate school district em-

brace the entire county—was “rational and germane”

to the subject matter of the statute—the system for

electing members of the boards of trustees of munici-

pal separate school districts. Accordingly, the court

left standing the statute’s requirement that one mem-

ber of the board of trustees be elected from each

supervisor’s district “in any county in which a mu-

nicipal separate school district embraces the entire

county.” * The Mississippi Supreme Court remanded

™ The complaint also alleged that the electoral system then

in force violated the one person-one vote principle. That issue

is not before the Court.

®The Chancellor also had considered striking only the

geographical reference, but he had rejected that notion out

of deference for what he viewed as the intent of the Missis-

sippi legislature (49,446 R. 118-119) : “to delete the reference

the case to the Chancery Court for further proceed-

ings not inconsistent with its opinion.

In a petition for rehearing, petitioners first raised

the question of the applicability of Section 5 of the

Voting Rights Act. Although the Mississippi Supreme

Court amended its opinion to correct factual errors,

the court denied the petition for rehearing without

mention of the Section 5 issue. This Court denied a

petition for a writ of certiorari. 441 U.S. 946 (1979).

3. On remand, the Chancery Court ordered that an

election be held pursuant to the 1964 state statute, as

redacted by the Mississippi Supreme Court, and it set

forth detailed procedures to govern the conduct of

that election (52,758 R. 139-147). In particular, the

Chancellor ordered that all five members of the Board

of Trustees of the school district were to be elected

by the qualified electors of Winston County, “with one

to be elected from each supervisor’s district and the

qualified electors of each supervisor’s district to vote

only on the trustee for the district in which they re-

side” (id. at 142). The court also directed (id. at

143) that “[i]f no candidate receives a majority of

the vote cast at any of said elections * * *, a runoff

election shall be held * * * two weeks later * * * as

provided by statute.'*’ The runoff shall be between

to Highways 14 and 15 would have the effect of applying it

potentially to several other counties, and since this was not

the intent of the Legislature, this Court will not take the

position that the Act is still in force as to all Counties where

the Municipal Separate School District encompasses the en-

tire county.”

* Miss. Code Ann. § 37-7-217 (Supp. 1981), which governs

the conduct of elections for boards of trustees of municipal

separate school districts (see Miss. Code Ann. § 37-7-209

(Supp. 1981) ), provides, in relevant part, that “[i]f a person

the two candidates receiving the highest vote [in the

first election]” (id. at 143). Finally, the Chancellor

he!d (id. at 141) that “[t]he election of all five trust-

ees of the Louisville Municipal Separate School Dis-

trict is a substantial change from the method hereto-

fore used for the selection of said trustees.” Accord-

ingly, he ordered petitioners to submit the proposed

voting change, as detailed in his decree, to the Attor-

ney General of the United States for preclearance un-

der Section 5 of the Voting Rights Act of 1965 (id. at

146-147).

Petitioners then submitted the voting change to the

Attorney General (52,758 R. 148-150, 163-164). On

March 28, 1980, the Attorney General filed an objec-

tion to the proposed election plan insofar as it re-

quired the trustees to obtain a majority of the votes

cast in their districts (Pet. App. A7-A9; 52,758 R.

237-240). The Attorney General explained (Pet. App.

A8) that because blacks constituted approximately

shall not receive a majority of the votes cast upon the first

ballot, a runoff shall be held between the two (2) persons

receiving the highest number of votes upon such first ballot,

which said runoff shall be held two (2) weeks thereafter.”

Under the prior electoral system, the two elected trustees

also had been subject to the majority-vote requirement (1953

Miss. Laws Extra. Sess. ch. 12, §§ 7(b) and 9(c)).

1° The Chancellor first scheduled the elections for the five

trustee posts for December 1, 1979, with any necessary runoff

elections to be held on December 15, 1979 (52,758 R. 139-

147). When, following petitioners’ initial submission to the

Attorney General (id. at 148-150), he requested additional

information (id. at 155-157), the Chancellor stayed and

suspended his prior orders calling for the elections “pending

the consideration by the United States Department of Justice

of the change in the voting procedures pursuant to Section 5

of the Voting Rights Act of 1965 as amended” (id. at 159).

39% of the population of Winston County but did not

comprise a majority in any of the five supervisor’s

districts from which the trustees were to be elected,

because there appeared to be a general pattern of ra-

cially polarized voting in the county, and because no

black ever had been elected or appointed to the school

board, the board of supervisors or the Louisville

Board of Aldermen, he could not find, “as we must

under the Voting Rights Act, that the special appli-

cation of a majority vote requirement for the election

of county-wide school board members in Winston

County will not have a discriminatory effect.” ™

41 The Attorney General’s reference to the “special” appli-

cation of the majority-vote requirement to the school district

in Winston County is to the fact that the Louisville Municipal

Separate School District is the only school district in Missis-

sippi that occupies an entire county to which the majority-

vote requirement is statutorily applicable. Except for three,

all of the school districts in Mississippi that occupy entire

counties are “county-wide school districts” (see note 2, supra),

each of whose 5 members is elected from one supervisor’s

district by a plurality or more of the vote (Miss. Code Ann.

§ 37-5-1 (1972)). Because Winston County’s school district

is denominated a “municipal separate school district’ (see

note 2, supra), however, it is governed by Miss. Code Ann.

§ 37-7-217’s majority-vote requirement (see note 9, supra).

The two other school districts in Mississippi that occupy

the entire area of a county but are not classified as “county-

wide school districts” are the Grenada Municipal Separate

School District and the Adams Special Municipal Separate

School District (see Miss. Code Ann. § 37-7-701 (1972)).

We are advised by Dr. Gordon Walker, superintendent of

the Grenada school district, that three members of its board

of trustees are appointed by Grenada’s city council and two

members are appointed by the county board of supervisors.

The members of the Adams County Board of Education also

are appointed (Mississippi Official and Statistical Register 200

(1980-1984) ; see Miss. Code Ann. § 37-7-717(a) (1972)).

Respondents next sought to join the Attorney Gen-

eral as a party defendant (52,758 R. 108-118). The

Chancery Court denied that motion (id. at 119-120,

249), and subsequently entered a final decree (J.A.

25-26) holding that state law required the runoff

procedure, that the Chancery Court has no authority

to order the Attorney General to preclear the election,

and that the court’s prior decree calling for the elec-

tion would “remain in force subject to compliance

with the Federal Voters Right Act [sic] as previously

ordered by this Court” (id. at 26). Respondents took

a second appeal.

The Mississippi Supreme Court, declaring (Pet.

App. A4-A5) that its “prior decision, which the

United States Supreme Court declined to reverse or

alter in any respect, became and is the law of the

case,” reversed that part of the Chancery Court’s de-

cree that required compliance with Section 5 of the

Voting Rights Act (id. at A5). The court thus left

standing that part of the Chancellor’s decree that

called for a majority vote and, if necessary, runoff

elections (ibid.).

On remand, the Chancery Court ordered the incum-

bent members of the Board of Trustees to conduct an

election on December 5, 1981, “without submission to

the At‘orney General, and without regard to the di-

rectives heretofore received from the United States

Attorney General, dated March 28, 1980” (decree of

Aug. 4, 1981).”

12 The Chancery Court, the Mississippi Supreme Court, and

this Court, with Justices Brennan, Marshall, Blackmun and

Stevens dissenting, denied motions for a stay of the Decem-

ber 5 election. Petitioner Thomas W. Saterfiel, Superintendent

of the Louisville Municipal Separate School District, has in-

formed us that the election was held on December 5, 1981,

SUMMARY OF ARGUMENT

1. The Mississippi Supreme Court’s rejection of the

Chancery Court’s conclusion that Section 5 preclear-

ance is required here apparently is premised on the

state supreme court’s belief that this Court’s denial

of a petition for a writ of certiorari from its first

judgment rendered that judgment “the law of the

case” (Pet. App. A5). A denial of certiorari, however,

“imparts no implication or inference concerning the

court’s view of the merits.” Hughes Tool Co. v.

Trans World Airlines, 409 U.S. 363, 366 n.1 (1973).

Moreover, the Section 5 issue was not argued to the

Mississippi Supreme Court prior to its first decision

in this case, and its opinion on the first appeal made

no mention of it. The court’s remand of the case for

further proceedings thus in no way precluded the sub-

sequent application of Section 5. In these circum-

stances, the prior petition for a writ of certiorari

raising the Section 5 issue was not necessary, and

review by this Court at that interlocutory stage would

have been premature. It therefore remains open to

this Court “to consider all of the substantial federal

questions determined in the earlier stages of the liti-

gation.” Reece v. Georgia, 350 U.S. 85, 87 (1955).

2. Section 5 of the Voting Rights Act of 1965, 42

U.S.C. 1973c, provides that whenever certain cov-

ered jurisdictions “shall enact or seek to administer

any * * * standard, practice or procedure with re-

as ordered, and that no candidate received a majority of the

vote in any of the five races and, accordingly, runoff elections

were held on December 19. He further informs us that,

although one black candidate received a plurality of the votes

in one of the races held on December 5, he was defeated in

the runoff election. The record, of course, does not reflect

these recent developments.

spect to voting different from that in force or effect

on November 1, 1964,” they must first submit such

voting change for preclearance by the Attorney Gen-

eral of the United States or the United States District

Court for the District of Columbia. Section 5 covers

“all changes affecting voting.” Dougherty County

Board of Education v. White, 439 U.S. 32, 43 (1978).

It is not disputed that Mississippi is a covered

jurisdiction. Moreover, the change effected by the

1964 Mississippi state statute—from an electoral sys-

tem whereby three members of a school district’s

board of trustees were appointed and two were

elected at-large, to a system whereby all five members

are elected from single-member districts—clearly is

a change affecting voting. Because the voting change

at issue here was not “in fact ‘in force or effect’ * * *

on November 1, 1964 * * *” (Perkins v. Matthews,

400 U.S. 379, 395 (1971); emphasis in original), it

is subject to Section 5’s preclearance requirement not-

withstanding that the state statute was promulgated

prior to November 1, 1964.

Finally, the voting change at issue here was

“s[ought] to [be] administer[ed]” within the mean-

ing of Section 5. The 1964 Mississippi state statute

clearly was a “legislative” plan, which “reflect[ed]

the policy choices of the elected representatives of the

people.” McDaniel vy. Sanchez, No. 80-180 (June 1,

1981), slip op. 22. Moreover, by making the sub-

missions to the Attorney General and by conducting

the December 5 election, the then incumbent trustees

“s[ought] to administer” the voting change. As

McDaniel v. Sanchez makes clear, the fact that they

did so under court order is irrelevant for purposes of

Section 5.

ARGUMENT

THE MISSISSIPPI SUPREME COURT ERRED IN

ORDERING IMPLEMENTATION OF A LEGISLA-

TIVE VOTING CHANGE THAT HAD NOT BEEN

PRECLEARED AS REQUIRED BY SECTION 5 OF

THE VOTING RIGHTS ACT OF 1965

1. The Mississippi Supreme Court offered no ex-

planation or analysis for its rejection of the Chancery

Court’s conclusion that Section 5 preclearance was

required, except to state (Pet. App. A4-A5) that

Miss. Code Ann. § 37-7-203 (Supp. 1981), which in-

corporates by reference the majority vote require-

ment of § 37-7-217, had been before it and before this

Court on the previous petition for a writ of certiorari,

and that because this Court had “declined to reverse

or alter in any respect” the state supreme court’s

first judgment, that judgment “became and is the

law of the case” (Pet. App. A4). In the first place,

even if the Mississippi Supreme Court had expressly

ruled on the Section 5 issue, this Court’s denial of

certiorari could not be construed as an affirmation of

the Mississippi Supreme Court’s judgment. It is

“well-settled * * * that denial of certiorari imparts

no implication or inference concerning the Court’s

view of the merits.” Hughes Tool Co. v. Trans World

Airlines, 409 U.S. 363, 366 n.1 (1973). Accord, Brown

v. Allen, 344 U.S. 443, 491-492 (1953) (Frankfurter,

J.); Wade v. Mayo, 334 U.S. 672, 680 (1948) ; House

v. Mayo, 324 U.S. 42, 48 (1945) (per curiam); At-

lantic Coast Line R.R. v. Powe, 283 U.S. 401, 403-

404 (1931); United States v. Carver, 260 U.S. 482,

490 (1923); Hamilton-Brown Shoe Co. v. Wolf Bros.

& Co., 240 U.S. 251, 257-258 (1916).

More importantly, however, the Mississippi Su-

preme Court’s first opinion included no reference to

Section 5. The question had not been raised in the

Chancery Court and none of the parties briefed the

issue in the Mississippi Supreme Court prior to its

decision. As noted above (page 6, supra), the ques-

tion was mentioned only in a petition for rehearing,

which the Mississippi Supreme Court denied without

comment. Accordingly, the Mississippi Supreme

Court’s first remand of the case “for further proceed-

ings” was not at all inconsistent with the expectation

that the voting change would be submitted for pre-

clearance under Section 5, which, in fact, the Chan-

cery Court ordered. Because the state supreme court’s

first judgment thus contemplated further proceedings

that could have eliminated the Section 5 issue from

the case, a request for intervention by this Court at

that stage of the proceedings was not necessary, and

review by this Court at that interlocutory stage would

have been premature. See Urie v. Thompson, 337 U.S.

163, 171-172 (1949) ; Laclede Gas Light Co. v. Public

Service Commission, 304 U.S. 398 (1938) ; Cincinnati

Street Ry. v. Snell, 179 U.S. 395 (1900); R. Stern

& E. Gressman, Supreme Court Practice 183 (5th ed.

1978). In these circumstances, this Court has “juris-

diction to consider all of the substantial federal ques-

tions determined in the earlier stages of the litigation,

* * * and [its] right to re-examine such questions is

not, affected by a ruling that the first decision of the

state court became the law of the case.” Reece v.

Georgia, 350 U.S. 85, 87 (1955) (citation omitted).

Accord, Hughes Tool Co., supra, 409 U.S. at 365 n.1;

Mercer v. Theriot, 377 U.S. 152, 153-154 (1964) (per

curiam) ; Chessman v. Teets, 354 U.S. 156, 164 n.13

(1957); Brown v. Allen, supra, 344 U.S. at 494

(Frankfurter, J.) ; Hamilton-Brown Shoe Co., supra,

240 U.S. at 258-259.

2. The Mississippi Supreme Court erred in order-

ing petitioners to implement the state statute without

complying with Section 5 of the Voting Rights Act.

“State courts, like federal courts, have a constitu-

tional obligation * * * to uphold federal law.” Stone

v. Powell, 428 U.S. 465, 494 n.35 (1976). As we

show below, in the present case federal law requires

Section 5 preclearance.

a. Section 5 of the Voting Rights Act of 1965, 42

U.S.C. 1973c, provides that whenever certain desig-

nated jurisdictions “shall enact or seek to administer

any voting qualification or prerequisite to voting, or

. standard, practice, or procedure with respect to vot-

ing different from that in force or effect on November

1, 1964,” they must first submit such voting change

to the United States District Court for the District

of Columbia for a declaratory judgment or to the

Attorney General for a determination that the change

“does not have the purpose and will not have the

effect of denying or abridging the right to vote on

account of race or color * * *.” Failure to obtain

such federal preclearance renders a voting change

unenforceable. Dougherty County Board of Educa-

tion v. White, 489 U.S. 32, 46 (1978) ; United States

v. Board of Supervisors, 429 U.S. 642, 645 (1977)

(per curiam) ; 28 C.F.R. 51.4.

Mississippi is among the designated jurisdictions

whose voting changes are subject to the preclearance

requirement of Section 5. South Carolina v. Katzen-

bach, 383 U.S. 301, 318 (1966); 30 Fed. Reg. 9897

(1965). Accordingly, any changes affecting voting

that are enacted or sought to be administered by the

state itself or by local entities within the state, in-

cluding the Louisville Municipal Separate School Dis-

trict (see Dougherty County Board of Education v.

White, supra, 439 U.S. at 46; cf. United States v.

Sheffield Board of Commissioners, 435 U.S. 110

(1978) ), must receive Section 5 preclearance in order

to become effective.

b. “Section 5 applies to all changes affecting vot-

ing * * *.” Dougherty County Board of Education

v. White, supra, 439 U.S. at 43. See also Allen

v. State Board of Elections, 393 U.S. 544, 566,

568, 570 (1969); 28 C.F.R. 51.4(a). The statute’s

coverage “is not dependent on a showing that [a]

proposed plan is defective in any way. * * * The pro-

phylactic purposes of the § 5 remedy are achieved by

automatically requiring ‘review of all voting changes

prior to implementation by the covered jurisdic-

tions.’”” McDaniel v. Sanchez, No. 80-180 (June 1,

1981), slip op. 21 (citation omitted), quoting S. Rep.

No. 94-295, 94th Cong., Ist Sess. 15 (1975) (em-

phasis by the Court) .”

18 Accordingly, the merit of the Attorney General’s objec-

tion to the voting change at issue here is irrelevant to the

present case. That question—‘“the determination whether a

covered change does or does not have the purpose or effect

‘of denying or abridging the right to vote on account of race

or color’ ”—‘“is what Congress expressly reserved for con-

sideration by the District Court for the District of Columbia

or the Attorney General.” Perkins v. Matthews, 400 U.S. 379,

385 (1971).

Nor is it significant that the feature of the new electoral

system to which the Attorney General objected—the majority

vote requirement—was also part of the previous appointive-

elective system (see note 9, supra). United States v. Sheffield

Board of Commissioners, supra, also involved an objection by

the Attorney General to a feature of a new electoral system

that had existed under the prior system—at-large elections

(see 435 U.S. at 114-116). While no party in that case con-

tended that there was no “change,” this Court, in upholding

the Attorney General’s authority to object to the new system,

Under the electoral system that was in effect in

Winston County from 1960 until December 1981,

three members of the Board of Trustees of the Louis-

ville Municipal Separate School District were ap-

pointed and two members were elected at-large. The

change effected by the 1964 state statute—to a system

whereby all five trustees are elected from single-mem-

ber districts—constitutes a major alteration in the

method of selection of the board of trustees. Hence,

the new system clearly is a “standard, practice or

procedure with respect to voting different from that

in force or effect on November 1, 1964 * * *” (42

U.S.C. 1973¢). Cf. Allen v. State Board of Elections,

supra, 393 U.S. at 569-570 (Section 5 applies to a

change from single-member to at-large districts and

to a change making an important county office ap-

pointive instead of elective).

It is of no moment that the Mississippi statute was

enacted prior to November 1, 1964,"* since it was not

implemented until after that date. Perkins v.

Matthews, 400 U.S. 379 (1971), involved a 1962

statute that mandated a change from ward to at-large

elections of all aldermen of the City of Canton, Mis-

sissippi. In the conduct of its 1965 municipal elec-

tions, however, Canton ignored the statute’s mandate

and elected its aldermen by wards, as it had done in

1961. When, in 1969, Canton for the first time at-

tempted to enforce the statute, this Court held that

preclearance was required, making clear that the ap-

implicitly found the at-large feature to be an appropriate

subject for Section 5 preclearance. Similarly, because the

voting change here creates an entirely new electoral system,

the system as a whole is subject to Section 5 review.

41964 Miss. Laws ch. 391 was approved on June 11, 1964.

plicability of Section 5 depends on whether there is a

change from the election procedure that was “in fact

‘in force or effect’ * * * on November 1, 1964 * * *”

(400 U.S. at 395; emphasis in original). Similarly,

in the present case, in which enforcement of the state

statute was not even sought until the institution of

this lawsuit in 1975, preclearance of the statute is

required.

c. Petitioners “s[ought] to administer” the voting

change at issue here within the meaning of Section 5

of the Voting Rights Act. McDaniel v. Sanchez, No.

80-180 (June 1, 1981), involved a reapportionment

plan submitted to a federal district court by the legis-

lative body of a covered jurisdiction in response to

the court’s determination that the existing apportion-

ment of the jurisdiction’s electoral districts was un-

constitutional. In that case, this Court rejected the

argument that, because the reapportionment plan was

court-ordered, it was not subject to the preclearance

requirement. Rather, the Court held (slip op. 22),

Section 5 applies to all voting changes that “reflect[]

the policy choices of the elected representatives of the

people—no matter what constraints have limited the

choices available to them * * *.” McDaniel makes

clear that it is only in the exceptional circumstance in

which a district court itself fashions the plan that

Section 5’s preclearance requirement would not apply.

In this case, as in McDaniel, the courts did not

develop the voting change themselves." Rather, the

1% The Mississippi Supreme Court’s mere deletion from

§ 37-7-203 of the reference to the intersection of Highways 14

and 15 (see page 5, supra), which had no impact on the

electoral system itself, surely did not “change its character

as a legislative plan” (McDaniel v. Sanchez, supra, slip op.

16).

Mississippi courts merely ordered the implementation

of a statute previously enacted by the Mississippi state

legislature."* Hence, there can be no doubt that the

voting change involved here reflects the policy choice

of the elected representatives of the citizens of Mis-

sissippi.

Nor is it significant that the legislation providing

for the voting change was enacted by Mississippi prior

to November 1, 1964 (see note 14, supra). Both by

making the submissions to the Attorney General called

for by Section 5 and by conducting the December 5,

1981 election, the then incumbent trustees “s[ought]

to administer” the voting change. To be sure, the

trustees took these actions at the instance of the

Mississippi courts. McDaniel makes clear, however,

16 This case thus does not present the question whether a

voting change created by a state court is exempt from Sec-

tion 5 coverage, as are voting changes “prepared and adopted”

by the federal courts. McDaniel v. Sanchez, supra, slip op. 7;

Connor Vv. Johnson, 402 U.S. 690, 691 (1971) (per curiam).

This Court’s prior decisions dealing with the applicability of

Section 5 to court-ordered voting changes have involved only

federal court orders. McDaniel v. Sanchez, supra; Wise v.

Lipscomb, 437 U.S. 535 (1978); E

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