Brief in Opposition to Motion to Dismiss — Moody v. Flowers

5 FILED

No. 624 | NOV171966

TORN F. DAVIS, n

m THE

SUPREME COURT OF THE UNITED STATES |

- OCTOBER TERM, 1966

1 N 4

EARLE C. MOODY, ET AL., Appellants,. |

RICHMOND M. FLOWERS, ET AL., Appellees.

*

ON APPEAL FROM THE ‘DISTRICT COURT OF THE UNITED STATES ~

FOR THE 1 DISTRICT OF ALABAMA

BRIEF IN OPPOSITION TO THE MOTION TO:

DISMISS OR AFFIRM

Cuar.es S. RHYNE,

Brice W. Rr,

Epwarp D. Coxen, .

Rhyne & Rhyne,

839 17th Street, N. W., :

Washington, D. C. 20006.

C. R. Lx wWãI s,

P. O. Box 1165;

Dothan, Alabama 36301, ee

Attorneys for Appellants. -

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TOIT UINEBMS

ad “INDEX i

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I. The Equal ‘Protecticii? Clauss: “Requires Voter.

Equality in Electing Members to the. Houston,

County, Alabama, Governing Board. *: >}... ..

A. The Holdings and Statements of This, Court

Do Not Support Appellees’ Contention That

Voter Inequality Is Allowed in Sub-State

Governmental Elections

II. There Is No Justification for This Court's Re-

quiring Voter Equality in Some Sub-State

Governmental Elections But Not in Alabama

Rr . 6. or. sc cece:

A. There Is No Rational Basis for the . bat

tial Dilution of Voting Power of Appellants .

and the Urban Voters of Houston County...

III. A Properly Apportioned Alabama State Legis-

lature Does Not Afford (and Has Not Afforded)

Appellants an Adequate Remedy Bak bow tes coe at

O A · «+ n .

TABLE oF AUTHORITIES

Cases: 8 x

Baker v. Carr, 369 U.S. 18000.

Cooper v. Aaron, 358 U.S. 1. 6

Glass v. Hancock County Comm n., 378 US. 558. .

Gomillion v. Lightfoot, 364 U.S. ee

Martinolich v. Dean, 256 F. Supp. 612 (8 D. Miss.

—T.. dd Pot ES

v. Sims, 377 US. We eit 2h ie

Seaman v. Fedourich, 16.N.Y. 2d 94, 262 N.Y. od 444 :

J))“ö Se. eran Cee eee oe

Standard Computing Scale Company: v. Farrell, 249

U.S. 571 . yoked

f Tedesco v. Board of * 399 8 8. 940 W

Praca:

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ii INDEX

Constitutional and-Statutory Provisions:

5

Federal Constitution: ees n= ö 5 5 *

3 Article XIV, Section FTF i> <7

a

Constitution of ‘shuns of 1901 (Code-af. Ala., Tit. 1, ae

$1 et. seg. 1940 (Bacon. A

Section 215 9 rete e asire tice © 2 ie aaa ess pe ; 6

Alabama Siatytes: A

. Act No. 9 of the 1957 Regular Session of the .

‘ Legislature of Alabama (Acts of Alabama, Reg.

- > §Sess. 1957, No. 9, PP. 30 et geg., effective May 24,

Y LD 8

Note, Respportiownent 79 Harv. 1 1226

(1966) no ee e A de OE fits Se gern 9

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Code of Ala., Tit 61, §71 0540 (Recomp. —) 6

“SUPREME COURT ur THE UNITED ‘STATES

5 deen RRM, 3908, gots

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No. 624

FAkLR C. MOODY, ET AL., Appelluntss,

v. 85

meer * FLOWERS, ET AL., ame, )

ON APPEAL FROM THE DISTRIOT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRIOT OF ALABAMA

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| BRIEF IN OPPOSITION. TO ‘THE MOTION ro

ä re |

L The Equal 8 Clause lis Voter Equality

iin Electing Members to the Houston Cony Alabama,

Governing Board. : |

The Equal Protection Clause of the Fourteenth ‘Amend-

Went does not distinguish between voter equality on the

state and county levels of government. And no rational

basis for such distinction exists. As stated in Seaman v.

Fedourich, 16 N.Y. 2d 94, 262 N. T. S. 2d 444, 449 (1965) :

It is. axiomatic that local governmental units are

oreations of, and exercise only those powers delegated

0

to them by the state . . . and certainly if the latter

may exercise its Ade powers only in a body con-

stituted on a population basis, any general elective

municipal organ $9 which it delegates certain of its

powers must, by a parity of reasoning, be ‘subjected

to the same constitutional epee.” * . i

As this Court well . a state cannot destroy or

debase one’s righis under. the Constitution of the United

States, either directly sor indirectly, through the states

political subdivisions. Thus, in Standard Computing Scale

Compony v. Farrell, 249 U. 8. 571, 577, this Court stated:

For the protection, of, the Federal Constitution ap-

plies, whateyer the form in which the legislative power

olf the state is exerted; that is, whether it be by con-

: stitution, an act of the legislature, or an act of any

subordinate instrumentality of the state exercising. .

delegated legislative authority, like an ordinance of a 2

nee or an order of a commission. Ad

Aan in Cooper v. "Aaron, 358 US. 1, 16, 17, the Court

: declared: a N 7

“The controlling legal principles are sits The com-

mand of the Fourteenth Amendment i is that, no *State’

shall deny to any person within its ‘Jurisdiction the

„ acaual protection of its laws. A State acts by its:legis-

'' ‘lative, its executive or its judicial authorities. It can

act in no other way,. The constitutional provision,

. + therefore, must mean that no agency of the State, or

ol the officers or agents by whom its powers are exerted,

shall deny to any person within its jurisdiction the

\ . equal protection of the laws... . Thus, the prohibi- ©

tions of the Fourteenth Fer extend to all action

of the State, denying equal protection of the law; what-

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ever the agency of the State, taking the action . . or

mmm

In Gomillion v. Lightfoot, 364 U.S. 339, 344-46, this Court 2

again made it emphatically clear that a state’s control over

its political subdivisions is subject to the restrictions im-

posed by the Federal Constitution. Rejecting the conten-

tion that the states enjoy absolute eontrol over the 1

of their local. governmental units, the Court stated:

“Legislative control of mupicipalities, no less than

other state power, lies within the scop ‘of relevant

limitations imposed by the United States Constitution.

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The opposite conclusion, urged upon us * .

would sanction the achievement by a State of any im-

_ pairment of voting rights whatever so long as it was

cloaked in the garb | of realignment of political sub-

divisions. ‘It is inconceivable that guarantees im-

bedded in the Constitution of the United States may

thus be 2 anyone ‘out of existence. 199

4. The Holdings and Statements of This Court Do Not

Support Appellees’ Contention That Voter Inequality’ -

Is Allowed in Sub · State Governmental Elections.

The Appellees rely on three cases to support their con- :

| , tention that certain recent holdings ... . and statements

5 of this Court indicate that voter ‘equality i is ma. required in

municipal elections. (Mot. to’ Dis., pp. 3-4)\, These three i

decisions are Reynolds v. Sime, 377 U.S. 533; Tedesco vy,

Board of Supervisors, 399 U.S. 940; and Glass v. Hancogk

County Comm n, 378 U.S. 558. None of these cases stands

for the proposition urged by the Appellees. os 2 * 8

8 hs ; : : : 55 4 ö

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ts iol v. Se, supra at 568, this Court held that

„as a basic. constitutional standard, the Equal

" Protection: Clause requires that the seats in both houses

of bicameral state legislature must de ogi ent ered on

population baie. .

The language W Reynolds v. Sinis, as quoted on page

four: of Appellees’ Motion to Dismiss or Affirm, relates

to thé so-called federal analogy’’, as applied to the states

and their political subdivisions, : and does not in anyway

3 the voter inequality position of Appellees. The

fact of the matſtr is that the vast majority of courts re-

quiring equal voting rights on the municipal level of govern-

-ment has acted on the 3 authority of n v. Sims.

(Jur. St., pp. 6-7, note 3) |

The second case cited by Appebses l is Tedesco v. ‘Board

of Supervisors, 339 U.S. 940. In Baker v. Carr, 369 * 8.

186, 235, Justice Brennan stated: ;

| Tedesco v. Board of Supervisors . „ indicates 0

* that, no substantial Federal question was raised by a

state court’s refusal to upset the districting of city

8 3 seats, especially as it was urged that there was

120 rational justification for. the challenged ee 3

, At page 252, Justice Clark, concurring, stated:

“Similarly, the Equal Protection Clause was not in-

a voked i in Tedesco hs Board of . e 8

te be d Gt Bho Tedesse Gabe wan decked

i in 1950, before Gomillion v. Lightfoot, before Baker v. Carr,

f ‘and before Reynolds v. Sims and the other state apportion-

ae ment cases. ‘This alone makes its current validity queb-

*Moreover,“in Tedesco, unlike this Appeal, ‘the

paints argument wa not based on the gual Fon

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Clause.: Aesordingly, the Tedesco Case is. not determinative

of the issue now before this Court. dach

he third case relied upon by a is Glass v. Slane

cocb County Comm u, 378 U.S. 558. In Glass che plaintiffs

eo that the Hancock County, Mississippi, Board ‘of

‘Supervisors was. unconstitutionally apportioned. The Mis-

sissippi. State Courts denied plaintiffs any of the relief

@equested for the specific reason that plaintiffs ‘had’ not

exhausted their statutory remedy | whereby 25 per cent of

the county’s qualified voters could petition the county board

to redistrict and reapportion.. Upon the filing of such peti-

tion, an election on the redistricting and’ reapportioning

proposition was required. In the instant Appeal no similar

power of initiative or referendum is available to Appellants

and thb urban voters of Houston County. Therefore, this

Court is dismissal of the appeal in Glass is not dene ead |

its refusal.to hear Appellants’ Appeal.

FF ne

Voter Equality in Some Sub-State Governmental

Elections But Not in Alabama ‘County Elections.

on page four of their Motion to Dismiss or, ‘Affirm, Ap.

‘pellees make the following statement: Bp sea

-Dappeltess point out that even if this Court dstsrmined

to allow judicial intervention to compel: ‘application of

-‘the one-man, one-vote’ principle to certain. political

.' subdivisions below state legislative level, Such

1 action would be inappropriate or Wah ‘political

MIST

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3 a tlitée-jridge Federal Court: ta inde oer

2804 51e . A N ot N

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subdivisions in Alabama because of the limited poet z ;

of such county mentee of revenue. a

a. their Jurisdictional Statement ‘Appellants have, enu-

merated the substantial powers vested in the Houston

County Governing Board. (Jur. St., p. 12) In the first

paragraph of his well-reasoned, dissenting opinion, District _

| Judge. Johnson states as follows (omitting footnote refer-

ences) : eK

Ahese Dodds of revenue perform important l govern-

mental functions, and are designed to be controlled by

the’ voters over which they have jurisidiction. The

‘exercise of their powers, which include the important

powers to levy and collect taxes, to spend for a variety

of governmental and public purposes, and to establish,

8 discontinue, and hepair roads, materially and

substantially affects te lives, property, and welfare of

the citizens of Houston and Randolph Counties. More-

cover, in discharging their duties, the. boards are no less

representative or reflective of the views of the citizens

because they are smaller than the state unit. To the

“contrary, rather than limit the principles of Reynolds,

as the majority opinion does, it would seem that these.

+ principles might well have their most meaningful appli-

cation at the local level. 45 (Jur. St., App. B, pp. 23-24)

2s “Appellees attempt to characterize the power of the Hous-

ton County governing’ Board to levy an ad valorem tax on

property. un ler Section 215 of the Constitution of Alabama

and under 51, Section 71, Code of Alabama of 1940,

as being purely ‘ministerial in nature. However, it is clear

from a reading of these Constitutional and Code provisions

8 that tho all-important amount of both general and special

ad valorem taxes Which the Board is authorized to levy for

| the euere el the county each paar i. left to the Board’

4.

‘sole discretion, subject to a maximum rate as set by the .

Alabama Constitation. Also, the exercise of the-tremen-

dously important power of eminent domain, within the eon-

stitutional and statutory limits e is nae to = e

disoretion of the Board. — 5

Fherefore, even if this Court should: 8 the: <<limaited

“versus general power’’ dichotomy. urged by Appellees, it is

clear that the Board is possessed with sufficient powers so

as to require voter equality in the election: of, its members.

Certainly, Appellees are not contending that the Houston

County governing Board is a so-called special purpose gov-

ernmental unit, such as a sewer district or a school. board. |

Such a. position ‘would be tenuous. indeed and. sompletaly

unfounded.

Irrespective of the ! powers W * the: Beard. aaa

pellants maintain that the determinative. fact in: resolving

the issue presented on this Appeal is that the. Alabama

‘Legislature has statutorily required the ele

ion of. Board

members. Since the Alabama Legislature re uires bye stat-

ee ute an elective—not an appointive method df selecting the

Board members, the residents of Houston County cannot be

’ discriminated against in such election on 8 of Face,

religion, national origin or geography.

A. There Is No Rational Basis for. the Substantial Dihition

of Voting Power of Appellants and the: ‘Urban spe

. dents of Houston County. 3

Appellees do not dispute the facts and paneer ‘soiifained

in the Jurisdictional Statement which show tlie ‘substantial

debasement of voting power of Appellants and the urban

voters of Houston County. Apparently, however, Appellees

seek to justify this dilution of voting power by referring

to a nonexistent - road district policy of the Alabama

Legislature. (Mot. to Dis., p. 5) It is obvious that this is

in delated attempt to ascribe to the statutory provisions

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here in question à policy which was never intended and

which; even if intended, would be improper under the Four-

teenth Amendment because of the total subversion of the

equal population principle. Reynolds v. Sims; 377 U.S. 533,

535, 538. Act No. 9, creating the governing Board, ex-

presses no such policy as justification for the districting — 7

of Houston County. Jur. St., App. C, pp. 30•36)

535

m eee Appartioned er . r

Legislature

Does Not Afford (and Has 10 Aae 2

an Adequate Remedy.

Appellees oontend that Appellants have a ‘practical

political remedy’’ in that the Alabama Legislature is prop-

‘ erly apportioned, and Appellants can elect a State Legis-

laturé to effect the relief demanded. (Mot. to Dis., p. 6)

Appellants have considered this contention on pages 10-12

of their Jurisdictional Statement. In addition, however,

the fact that the Alabama State Legislature is properly

apportioned does not of itself protect the urban voters of

Houston County who are underrepresented on the ae

Board. Thus, it han been stated that |

the hope that post- Reynolds state ee 7

a be moved to reapportion the cities that their prede-

‘® cessors left malapportioned would appear to have little

‘basis. The new legislatures may, in some cases, have

2 philosophical commitment to the Reynolds principle,

.. spas there is no reason to think that they will have. a

Wagreater political stake in the correct apportionment of

cities. Indeed, to the extent that reapportionment on

the state level increases the influenee of cities, it may

also increase the influence of the existing power. struo-

> ‘tures in those eities structures erected on the basis

of existing malapportionment. Thus state reapportion-

ment may make the atate ss pti even less. ed 25

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to reapportion inunieipelities according to an equal .

— Population standard.“ (Note, r 79

0 * — Rev. 1226, 1273-74) ;

Conclusion

The decision reached: by the lower Court in this case is 3

- manifestly opposed to the vast ma jority of judicial decisions

involving the issue of voter equality on the municipal level

of government. This fact is undisputed by Appellees.

Neither the Court below nor Appellees have presented any

meaningful evidence to justify the gross inequalities in voter

representation which exist by virtue of the Houston County

_ apportionment scheme. Farther, ‘Appellants contend that

the Equal Protection Clause of the Fourteenth Amendment

permits no justification for the. substantial. unequal treat-

ment of urban voters in either state or municipal elections.

For the reasons set forth above and in the Jurisdictional

Statement, Appellants submit that probable Jurisdiction of

the Appeal should be noted.

Respectfully Ae 8

CHaRizs

Brice W.

Epwarp Dal .

Rhyne &

839 17th N. W.,

— Washington, D. C. 20006.

C. R. Lewn,

P. O. Box 1165,

Alabama 36301,

ae for Appellants.

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