# Brief in Opposition to Motion to Dismiss — Moody v. Flowers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0058%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition to Motion to Dismiss - **Published:** January 1, 1967 - **Citation:** 387 U.S. 97 ## Text 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. - . : Ms : . i 0 . * = * TOIT UINEBMS ad “INDEX i — —— 2 — 2 ? * 4 . ; anthers 5 — — : cies 3 Soner Lu 8 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: — ii INDEX Constitutional and-Statutory Provisions: 5 Federal Constitution: ees n= ö 5 5 * 3 Article XIV, Section FTF i> §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 O 0 — 2 ° x. : . Ae: N at . \ -% \ is 4 * . ‘2. 7 1 f \° \ \ \ \ Code of Ala., Tit 61, §71 0540 (Recomp. —) 6 “SUPREME COURT ur THE UNITED ‘STATES 5 deen RRM, 3908, gots — 8 4 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 y „ | 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- a . 8. 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. * „* 5 ‘ ‘ P 7 © * ee * 0 * 6 oo" . P ’ 5 — * 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 — 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 , ‘ > ames eS . 7 * — oe a 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 * 3 a tlitée-jridge Federal Court: ta inde oer 2804 51e . A N ot N * 12 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: ‘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 0 * 0 2 i A 0 7 RY << 8 7 9 a „ 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. 4 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0058%3A10. Public record. Not legal advice.