Robinson v. Pottinger

• Decision Date: 24 April 1975
• Docket Number: No. 74-3486,74-3486
• Citation: 512 F.2d 775
• Parties: Jim ROBINSON et al., Plaintiffs-Appellees, v. J. Stanley POTTINGER, Asst. Attorney General of the United States of America et al., Defendants, William P. Nunn et al., Intervenors-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 775

512 F.2d 775

Jim ROBINSON et al., Plaintiffs-Appellees, v. J. Stanley POTTINGER, Asst. Attorney General of the United

States of America et al., Defendants,

William P. Nunn et al., Intervenors-Appellants.

No. 74-3486.

United States Court of Appeals, Fifth Circuit.

April 24, 1975.

William R. Gordon, Montgomery, Ala., for intervenor-appellant.

Joseph D. Phelps, Charles A. Stakely, Jr., Montgomery, Ala., for Robinson and others.

Ira DeMent, U. S. Atty., Kenneth E. Vines, Asst. U. S. Atty., Montgomery, Ala., Gerald W. Jones, Marie Klimesz, Attys., U. S. Dept. of Justice, Washington, D. C., for Pottinger and others.

Solomon S. Seay, Jr., Montgomery, Ala., for Charles Varner, Jr.

Appeal from the United States District Court for the Middle District of Alabama.

Before GEWIN, BELL and CLARK, Circuit Judges.

PER CURIAM:

The only issue presented on this appeal is whether Act 618, Acts of Alabama, Regular Session 1973, commonly known as the Mayor-Council Act of 1973, is a general act of local application and therefore valid, or a local law and therefore invalid because it was not advertised as such pursuant to state constitutional and statutory provisions. We affirm the judgment of the district court holding that the Act is a general law of local application and is constitutional.

This case originated as a class action filed by the plaintiffs-appellees on behalf of all registered voters in the city of Montgomery, Alabama, seeking a declaratory judgment as to the constitutionality of the Mayor-Council Act. The Act provides a means by which cities having a population of not less than 70,000 nor more than 135,000 may adopt the mayor-council form of government. The City Attorney of the City of Montgomery Assistant Attorney General J. Stanley Pottinger, Civil Rights Division, responding for the Attorney General, informed the City Attorney that "the Attorney General does not interpose an objection to the changes involved" in the Act. In his letter, however, the Assistant Attorney General did question ¹ the constitutionality of two provisions of the Act, one requiring qualifying fees from candidates ² and the other requiring that mayor and city council candidates receive a majority, rather than a plurality, of the vote. ³

submitted the Act to the Attorney General of the United States for approval under the provisions of § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. See Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973); Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971); Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966).

Upon learning of the questions raised by Mr. Pottinger, Montgomery Mayor Jim Robinson and certain other citizens brought this class action seeking a declaratory judgment as to the constitutionality of the Mayor-Council Act in order to remove the "cloud of uncertainty" which they claimed had been caused by the Assistant Attorney General's letter. Their complaint sought a judgment that the sections of the Act referred to by Mr. Pottinger were constitutional. The named defendants were Attorney General William Saxbe, Assistant Attorney General Pottinger, and Perry O. Hooper, the probate judge of Montgomery County who is charged with administering elections and referenda in Montgomery.

William P. Nunn and others moved to intervene in the action and their motion was granted. In their cross-complaint, the intervenors raised, for the first time in the litigation, the issue which is before us on appeal, whether the Mayor-Council Act is a "local law" and therefore invalid because it was not advertised pursuant to Alabama law before enactment. ⁴

Defendants Saxbe and Pottinger asserted that the district court did not have jurisdiction over them and moved to dismiss. This motion was denied. However, they did not appeal since the district court did not order any relief against the United States. In a brief filed on this appeal, these federal defendants stated "there would appear to be no federal interest at stake in this appeal." ⁵

The district court found §§ 3.02 and 4.02 dealing with qualifying fees violative of equal protection and ordered them deleted from the Act. The court rejected the contention that §§ 1.07 and 4.01 requiring a plurality vote affected a dilution of individual voting rights. After ordering the appendix establishing district lines for Montgomery severed from the Act, the court found that the Act was complete, intelligible, and capable of being validly executed, and that the Act was a general, rather than a local law, and therefore was valid. It is this issue alone that is before us on appeal: whether the Mayor-Council Act of 1973 is a local law as opposed to a general act of local application, which was not advertised and is therefore unconstitutional.

The decree and judgment of the district court is attached hereto as Appendix A. We conclude that the appellants have failed to demonstrate that error was committed. Since the district court retained jurisdiction of this litigation pending the adoption of district lines by the City Commission within a specified time, we affirm the judgment and remand the case for such proceedings as may be appropriate. The mandate shall issue immediately.

Affirmed and remanded.

APPENDIX A

JUDGMENT

This cause is now submitted for final determination upon a stipulation of facts and briefs of the parties. The Plaintiffs and the class they represent bring this suit for a declaratory judgment seeking to have declared the constitutionality of Act No. 618, Acts of Alabama, Regular Session 1973. Act 618 is, allegedly, a general act of local application providing a method by which cities having a population of not less than 70,000 nor more than 135,000 might adopt the mayor/council form of government. In anticipation of utilizing this method of governmental change and of giving the voters of Montgomery an opportunity to adopt the mayor/council form of government, the City Attorney submitted Act 618 to the Attorney General of the United States on December 7, 1973, for approval pursuant to the Civil Rights Act of 1965 (42 U.S.C. § 1973 et seq.). The Attorney General of the United States through his assistant, J. Stanley Pottinger, responded on February 4, 1974, by expressing no objection to the Act based upon his duties under the Civil Rights Act of 1965. However, he did question the constitutionality of two portions of the Act. The Plaintiffs, upon discovering that questions had been raised by the Attorney General filed their bill for declaratory judgment action on February 20, 1974.

The Court on February 22, 1974, found that the suit was properly maintainable as a class action and required notice to be given the prospective class members. On March 18, 1974, William P. Nunn, Paul L. Smith and L. N. Duncan intervened in the case, through their attorney, William R. Gordon, and challenged the constitutional validity of the Act. On the same day, Charles Varner, Jr., made an appearance in the suit, through his attorney, Solomon S. Seay, Jr., and questioned the validity of the council district lines as drawn by the Alabama Legislature and as attached as an appendix to the Act.

The contention of Charles Varner, Jr., is moot since he stated in the proposed submission filed on August 8, 1974, that he would accept the district lines drawn anew by the Plaintiffs. ¹

The Interveners raised numerous objections to the validity of Act 618, only three of which they insist upon in brief. Two of these questions were initially raised by Pottinger. They are (1) whether § 3.02 and § 4.02, requiring a qualifying fee from candidates, is violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution and (2) whether §§ 1.07 and 4.01, requiring that a candidate for the office of mayor receive a majority of the vote rather than a plurality, is violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution. The third question in two parts is (a) whether the Act is general or local as defined by Alabama law and (b) whether, if the Act is local, failure to advertise the Act renders it void as violative of the State Constitution. ² The parties stipulate that the Act was never advertised as a local act.

This Court is of the opinion that Act 618 is general in nature and is, therefore, valid. "It is the duty of the courts to sustain the constitutionality of a legislative act unless it is clear beyond a reasonable doubt that it is in violation of the fundamental law." State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487, 121 A.L.R. 283; Norton v. Lusk, 248 Ala. 110, 26 So.2d 849; Brittain v. Weatherly, 281 Ala. 683, 207 So.2d 667. It is further the duty of the courts not to construe a law as local, when it is worded and framed in a way which allows interpretation as a general law, even though interpretation as a general law is less natural than interpretation as a local law. State ex rel. Collman v. Pitts, 160 Ala. 133, 49 So. 441; State ex rel. Montgomery v. Merrill, 218 Ala. 149, 117 So. 473; Brittain v. Weatherly, supra.

It has been consistently held that, a law is general even though an act when passed applies to one city only, if the act will apply to all other cities as they come within the class described by the law. Taxpayers and Citizens of the City of Mobile v. Board of Commissioners of City of Mobile, 252 Ala. 446, 41 So.2d 597; Reynolds v. Collier, 204 Ala. 38, 85 So. 465; Brittain v. Weatherly, supra.

Population is the basis for classification used by the Legislature in this type legislation and scrutinized by the courts for constitutional validity. The Alabama Appellate decisions hold that, where there is a substantial difference in population and the classification is made in good faith, reasonably...