Jenness v. Little

• Citation: 306 F. Supp. 925
• Decision Date: 27 February 1970
• Docket Number: Civ. A. No. 12962.
• Parties: Linda JENNESS, Ethel Mae Matthews, Julie Shields, on behalf of themselves and all others similarly situated, v. J. J. LITTLE, City Clerk of the City of Atlanta, Georgia.
• Court: U.S. District Court — Northern District of Georgia

306 F. Supp. 925

Linda JENNESS, Ethel Mae Matthews, Julie Shields, on behalf of themselves and all others similarly situated, v. J. J. LITTLE, City Clerk of the City of Atlanta, Georgia.

Civ. A. No. 12962.

United States District Court N. D. Georgia, Atlanta Division.

September 5, 1969.

Appeal Dismissed February 27, 1970.

Frederic S. Le Clercq, and Robert B. Newman, Atlanta, Ga., for all plaintiffs except Jenness, whose counsel has withdrawn.

Thomas F. Choyce, Asst. City Atty., Atlanta, Ga., for defendant.

Before BELL, Circuit Judge, and HOOPER and EDENFIELD, District Judges.

Appeal Dismissed February 27, 1970. See 90 S.Ct. 820.

ORDER

EDENFIELD, District Judge.

On the 9th day of July, 1969, the governing authorities of the City of Atlanta adopted an ordinance pursuant to a state statute (Ga.Laws 1969, p. 2521) establishing certain qualifying fees to be paid by those seeking to have their names placed upon the ballot as candidates for certain city offices in an election to be held on October 7, 1969. The schedule of qualifying fees was as follows: for the office of mayor, $5,000; for the office of vice-mayor, $1,400; for the office of alderman, $1,200; for the office of school board member, $600. This case was begun by a complaint filed by Plaintiff Jenness (a prospective candidate for mayor), seeking to restrain and enjoin the City Clerk of Atlanta from exacting or collecting these fees from the plaintiff, or from others similarly situated, as a prerequisite to having their names placed on the ballot as candidates for such offices. The contention of the original complaint was that the exaction of such fees deprived the Plaintiff Jenness and others similarly situated of certain rights, privileges and immunities, secured by the Constitution of the United States, including equal protection of the law. Plaintiff further contended that the particular schedule of fees was also exorbitant and unreasonable and bore no reasonable relation to any legitimate legislative purpose. She sought a declaratory judgment that the schedule of fees was unconstitutional.

The complaint as originally filed did not seek a three-judge hearing. Thereafter, however, the complaint was amended and rewritten to show that Ethel Mae Matthews, a prospective Negro candidate for alderman, and Julie Shields, a Negro resident and voter of the City of Atlanta, wished to join (intervene) in the complaint. The amended complaint realleged that the qualifying fees in question deprived plaintiffs of their constitutional rights, including equal protection, due process, and freedom of assembly, and further prayed that a three-judge court be convened pursuant to Section 5 of the Voting Rights Act of 1965 (42 U.S.C. § 1973c) on the ground that said ordinance and the 1969 statute under which it was adopted had not been declared valid by the United States District Court for the District of Columbia and had not been approved by the Attorney General, as required by Section 5 of the Voting Rights Act, supra. The amended complaint also alleged that the purpose and effect of the statute and ordinance was to deny or abridge the right to vote because of race or color.

A three-judge hearing was held on August 25, 1969, and an order was entered that the 1969 Act of the Georgia General Assembly (amending the charter of the City of Atlanta) and the ordinance adopted pursuant thereto were both unenforceable for failure to comply with Section 5 of the Voting Rights Act. In that order the Court further concluded that because of the unenforceability of the statute and ordinance, the City of Atlanta was left with no valid ordinance purporting to fix qualifying fees. The order further provided, however, that nothing therein should be construed as preventing the City of Atlanta from taking such valid action in this regard as it might see fit pursuant to another Georgia statute enacted in 1968 (Georgia Municipal Election Code of 1968, Ga.Ann. Code Supp. § 34A-101 et seq.), it appearing that such code had been approved by the Attorney General in compliance with the Voting Rights Act.

Following this order, the governing authorities of the City of Atlanta, on August 26, 1969, adopted a new schedule of qualifying fees pursuant to the 1968 Act. This ordinance changed the qualifying fees as follows: for mayor, $1,000; for vice-mayor, $600; for alderman, $500; and for school board member, $400.

Still later, on September 3, 1969, Intervenors Matthews and Shields filed a second amendment to the complaint attacking the voting code and the new schedule of fees on the same constitutional grounds as before, and alleging further that the new ordinance adopting a new schedule of fees was itself unconstitutional as failing to comply with Section 5 of the Voting Rights Act since it likewise had not been approved by the Attorney General, although the state statute under which it was authorized and adopted had been so approved. The original plaintiff, Jenness, did not join in this amendment and, so far as appears, she is content with the new schedule of fees adopted on August 26th.

The right of Plaintiffs Matthews and Shields to intervene in the case has not been considered by the Court and the first question to be decided is their right and standing to do so. As to the right of Matthews to intervene, the Court has no doubt, she having alleged and her counsel having stated in his place that she wished to become a serious candidate for the office of alderman. As to Plaintiff Shields, the Court entertains some question since it appears that she seeks to intervene merely as a voter, not as a prospective candidate directly affected by the schedule of fees in question. The right to run, however, may, in some situations be an analogue of the right to vote. Moreover, since an adjudication of the rights of Plaintiff Matthews will determine substantially all of the issues in the case in any event, the Court will allow both interventions and proceed to the merits of the case.

The contention that the new ordinance establishing a new schedule of fees had to likewise be approved by the Attorney General is rejected. This ordinance was adopted pursuant to the Georgia Municipal Election Code of 1968, supra, which expressly permitted the exaction of qualifying fees (Ga.Ann.Code Supp. § 34A-904) and that Act has been approved by the Attorney General in compliance with the Voting Rights Act, supra. It appears from the evidence in the case and from stipulations made by counsel during argument that qualifying fees have been exacted through the years either in city elections or in city primaries which were tantamount to election and that the revised schedule of fees adopted on August 26th is considerably less than those exacted prior to and at the time of the enactment of the Voting Rights Act of 1965. The Attorney General having expressly approved the State Municipal Election Code, which in turn expressly included a right to exact such fees, and it further appearing that the fees sought to be exacted are less than those in effect when the Voting Rights Act was passed, the Court cannot conclude that every reduction in such qualifying fees has to be separately approved under that Act. The Court is not unaware that the Voting...