Sims v. Frink, Civ. A. No. 1744-N.

• Citation: 208 F. Supp. 431
• Decision Date: 21 July 1962
• Docket Number: Civ. A. No. 1744-N.
• Parties: M. O. SIMS, Fred A. Beam, Wylie Johnson, G. R. Southard, Miles S. Lee, Paul Friedman, William Lindsay Williams, William P. Shaw, Jr., Prentice W. Thomas, Richard D. Tannehill, Paul M. Byrne, David R. Baker, Charles Morgan, Jr., and George Peach Taylor, for themselves jointly and severally, and for all others similarly situated, Plaintiffs, R. E. Farr, Marshall Meadows, Jack Hopping, Jack Ryan, Max W. Morgan, David J. Vann, Robert S. Vance, Richard P. Humphrey, Jr., John W. McConnell, Jr., Joseph N. Langan, William M. Williams, Jr., and Garet Van Antwerp, Intervening Plaintiffs, v. Bettye FRINK, Secretary of State of the State of Alabama; Harrell Hammonds, Judge of Probate of Lowndes County, Alabama; John A. Sankey, Judge of Probate of Montgomery County, Alabama; J. Paul Meeks, Judge of Probate of Jefferson County, Alabama; John Grenier, Chairman of the Alabama State Republican Executive Committee; Perry O. Hooper, Secretary of the Alabama State Republican Executive Committee; Roy Mayhall, Chairman of the Alabama State Democratic Executive Committee; H. G. Rains, Secretary of the Alabama State Democratic Executive Committee; MacDonald Gallion, Attorney General of the State of Alabama, Defendants.
• Court: United States District Courts. 11th Circuit. Middle District of Alabama

208 F. Supp. 431

M. O. SIMS, Fred A. Beam, Wylie Johnson, G. R. Southard, Miles S. Lee, Paul Friedman, William Lindsay Williams, William P. Shaw, Jr., Prentice W. Thomas, Richard D. Tannehill, Paul M. Byrne, David R. Baker, Charles Morgan, Jr., and George Peach Taylor, for themselves jointly and severally, and for all others similarly situated, Plaintiffs, R. E. Farr, Marshall Meadows, Jack Hopping, Jack Ryan, Max W. Morgan, David J. Vann, Robert S. Vance, Richard P. Humphrey, Jr., John W. McConnell, Jr., Joseph N. Langan, William M. Williams, Jr., and Garet Van Antwerp, Intervening Plaintiffs, v. Bettye FRINK, Secretary of State of the State of Alabama; Harrell Hammonds, Judge of Probate of Lowndes County, Alabama; John A. Sankey, Judge of Probate of Montgomery County, Alabama; J. Paul Meeks, Judge of Probate of Jefferson County, Alabama; John Grenier, Chairman of the Alabama State Republican Executive Committee; Perry O. Hooper, Secretary of the Alabama State Republican Executive Committee; Roy Mayhall, Chairman of the Alabama State Democratic Executive Committee; H. G. Rains, Secretary of the Alabama State Democratic Executive Committee; MacDonald Gallion, Attorney General of the State of Alabama, Defendants.

Civ. A. No. 1744-N.

United States District Court M. D. Alabama, N. D.

July 21, 1962.

Charles Morgan, Jr., George Peach Taylor, Robert H. Loeb, and Kenneth Howell, Birmingham, Ala., for plaintiffs.

Cooper, Mitch & Crawford, Birmingham, Ala., for intervening plaintiffs R. E. Farr, Marshall Meadows, Jack Hopping, Jack Ryan and Max W. Morgan.

David J. Vann, Robert S. Vance and C. H. Erskine Smith, Birmingham, Ala., for intervening plaintiffs David J. Vann, Robert S. Vance, and Richard P. Humphrey, Jr.

John W. McConnell, Jr., Mobile, Ala., for intervening plaintiffs John W. McConnell, Jr., Joseph N. Langan, William M. Williams, Jr., and Garet Van Antwerp.

Boswell & Smith, Geneva, Ala., for defendant Harrell Hammonds.

Roy D. McCord and H. G. Rains, Gadsden, Ala., for H. G. Rains.

MacDonald Gallion, Atty. Gen. of Alabama, Leslie Hall and Gordon Madison, Asst. Attys. Gen., of Alabama, Montgomery, Ala., for MacDonald Gallion and Bettye Frink.

Before RIVES, Circuit Judge, and THOMAS and JOHNSON, District Judges.

PER CURIAM.

Plaintiffs and the plaintiff-intervenors, as citizens of the United States and of the State of Alabama, and as taxpayers and duly qualified and registered voters in said State and in the Counties of Jefferson and Mobile, jointly and severally bring this action in their own behalf and in behalf of all other voters in the State of Alabama who are similarly situated. The defendant Bettye Frink is sued in her capacity as Secretary of State for the State of Alabama and as a State constitutional official, who is charged with certain duties and responsibilities concerning the election of members of the Alabama Legislature. The defendants Hammonds, Sankey and Meeks are the duly elected, qualified and acting probate judges of Lowndes, Montgomery and Jefferson Counties, respectively. They are sued in their official capacity as constitutional officers for the State of Alabama and as representatives of all the probate judges of Alabama, who are charged by law with performing and exercising certain duties and powers in connection with the nomination and election of members of the Alabama Legislature. The defendants Grenier and Mayhall are the duly elected, qualified and acting Chairmen of the Alabama State Republican Executive Committee and of the Alabama State Democratic Executive Committee, respectively. They are made defendants in their official capacity as Chairmen of the Executive Committees of said political parties, who are charged by law in the State of Alabama with performing certain duties and functions in connection with the selection, nomination and election of members of the Alabama Legislature. The defendants Hooper and Rains are the duly elected, qualified and acting Secretaries of the Alabama State Republican Executive Committee and the Alabama State Democratic Executive Committee, respectively. Each is sued in his official capacity as an officer of the political party as indicated and is charged by the law of Alabama with performing certain functions and duties in connection with the selection, nomination and election of the Alabama legislators. The defendant MacDonald Gallion is the duly elected, qualified and acting Attorney General of the State of Alabama, who is charged by the law of the State of Alabama with performing certain duties and functions in connection with the nomination ad election of members of the Alabama Legislature.

The plaintiffs¹ bring this action in their own behalf and in behalf of all registered and qualified voters similarly situated, for a declaration of their rights concerning the apportionment of representatives and senators among the counties of the State of Alabama and for such relief as may be proper to assure them, and all other voters of the State of Alabama that are similarly situated, free and equal suffrage and equal protection of the laws which plaintiffs claim have been for many years denied them by the defendants and their predecessors in office. The plaintiffs say that this Court has jurisdiction of this cause and that they have a right to institute this cause under 17 Stat. at Large 13 and 16 Stat. at Large 144; 42 U.S.C. §§ 1983 and 1988, as follows:

"§ 1983. Civil action for deprivation of rights. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

* * * * * *

"§ 1988. Proceedings in vindication of civil rights. The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, * * *."

The plaintiffs, as citizens of the United States and of the State of Alabama, base their claim that they are denied the equal protection of the law accorded them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes, since the Legislature of the State of Alabama has failed and continues to fail to reapportion itself since 1900. Plaintiffs say that the failure of the Alabama Legislature to reapportion itself violates §§ 198, 199 and 200 of the Alabama Constitution of 1901.²

In our order of March 30, 1962, setting for hearing the application for interlocutory injunction we indicated our tentative but unanimous opinion that no injunction was required prior to the primary elections, then set for May, 1962, in order for citizens of the State represented by the plaintiffs in this case to be accorded any constitutional rights asserted in time for the exercise of such rights at the general election in November, 1962. In that order we expressed the further view that there was time for the Legislature of Alabama to comply with its duty prescribed by the Constitution of 1901 of the State of Alabama, and that no action on the part of this Court which was not absolutely essential for the protection of any constitutional rights asserted in the complaint should be taken before the Legislature of Alabama had had a further reasonable but prompt opportunity to comply with its duty. The application for interlocutory injunction was assigned for hearing for April 14, 1962. 205 F.Supp. 245.

On that date we reiterated the same views in continuing the application for interlocutory injunction and resetting it for hearing on July 16, 1962. In that order, for the guidance of counsel and for such aid as we might be, we made certain additional remarks to which we now adhere, as follows:

"We remain of the same opinion that was expressed in the order setting the application for hearing, viz.: until the Legislature has had a further reasonable but prompt opportunity to comply with its duty under Sections 199 and 200 of the Constitution of Alabama, this Court should take no action not absolutely essential for the protection of the constitutional rights asserted in the complaint; and no ruling before the primary elections of May 1962 appears essential.

"The application for interlocutory injunction pertains to the conduct of both the primary elections of May 1962 and the general election of November 1962. That application is therefore continued and re-set for hearing at 10 o'clock a. m. on Monday, July 16, 1962. The hearing cannot be set for a much later date because, if this Court is to act effectively, some action must be taken in ample time before the general election of November 1962.

"For the guidance of counsel and for such aid as we may be in solving the troublesome but important subject of this litigation, we make the following additional remarks:

"(1) Under the opinion of the Supreme Court of the United States in Baker v. Carr, 82 S.Ct. 691, No. 6, October Term, 1961 decided March 26, 1962, it seems clear to us that: (a) this Court has jurisdiction of the present action; (b) the complaint as amended states a justiciable cause of action; (c) the plaintiffs have standing to challenge the Alabama apportionment statutes.

"(2) We have no disposition to discourage the introduction of evidence by any party, and in the ordinary case our opinion as to whether the plaintiffs will be entitled to appropriate relief should await the introduction of evidence. However, we take judicial notice of the same facts which are well known to the Justices of the Supreme Court of Alabama and to the people of this State, as expressed on two different occasions in opinions of the Justices.

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