821 F.2d 1484 (11th Cir. 1987), 85-7625, Smith v. Meese

Docket Nº:85-7625.
Citation:821 F.2d 1484
Party Name:Charles SMITH, Carol P. Zippert, Raymond Austin, Veselle Jackson, Walter Jackson, Carrie Fulghum, Marshal Beasley, Prince Arnold, and Rev. Matthew Barber, on Behalf of themselves and all others similarly situated, Plaintiffs- Appellants, v. Edwin W. MEESE, III, Attorney General of the United States; William Bradford Reynolds, Acting Associate Attor
Case Date:June 30, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1484

821 F.2d 1484 (11th Cir. 1987)

Charles SMITH, Carol P. Zippert, Raymond Austin, Veselle

Jackson, Walter Jackson, Carrie Fulghum, Marshal Beasley,

Prince Arnold, and Rev. Matthew Barber, on Behalf of

themselves and all others similarly situated, Plaintiffs- Appellants,

v.

Edwin W. MEESE, III, Attorney General of the United States;

William Bradford Reynolds, Acting Associate Attorney

General; Stephen S. Trott, Assistant Attorney General;

John C. Bell, U.S. Attorney for the Middle District of

Alabama; Frank W. Donaldson, U.S. Attorney for the Northern

District of Alabama; Jeff B. Sessions, III, U.S. Attorney

for the Southern District of Alabama, Defendants-Appellees.

No. 85-7625.

United States Court of Appeals, Eleventh Circuit

June 30, 1987

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[Copyrighted Material Omitted]

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        Neil Bradley, Laughlin McDonald, Atlanta, Ga., Ira A. Burnim, Children's Defense Fund, Washington, D.C., for plaintiffs-appellants.

        William Kanter, Appellate Staff, Civil Division, Michael Jay Singer, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

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

        Before KRAVITCH and CLARK, Circuit Judges, and HENDERSON, Senior Circuit Judge.

        CLARK, Circuit Judge:

        The plaintiff-appellants in this case are nine black voters and elected officials who allege that the defendant-appellees, the Attorney General of the United States and other Department of Justice officials, "are engaged in a concerted and unlawful effort both to interfere with black citizens' associational and political activities in Alabama's 'Black Belt' and to discourage them from exercising their right to vote, in violation of the First, Fifth, and Fifteenth Amendments to the U.S. Constitution and in violation of 42 U.S.C. Secs. 1983 and 1985(3)." Appellants' Brief at 2. The district court dismissed the case, brought as a class action, on the ground that the separation of powers doctrine precludes federal court review of the defendants' actions in this case, and on the further ground that the plaintiffs lack sufficient standing to maintain this action. Smith v. Meese, 617 F.Supp. 658 (M.D.Ala.1985). Because we disagree with the district court on the separation of powers issue, and we think the court misinterpreted the plaintiffs' complaint in reviewing the standing question, we reverse the judgment of the court below and remand the case for further proceedings in accordance with this opinion.

       I. HISTORY OF THE CASE

  1. Facts as Alleged in the Complaint

            Because this action was dismissed for want of jurisdiction and for lack of standing, we construe the complaint most favorably to the plaintiffs and take all allegations in the complaint as true. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975); Cummings v. United States, 648 F.2d 289, 291 (5th Cir. Unit A June 1981). The following recitation of allegations is taken solely from the plaintiffs' complaint. Because the complaint was dismissed at an early stage, there is no evidence in the record on appeal to support or refute the allegations.

            The plaintiffs' complaint alleges that in recent years many white citizens and local officials in Alabama's "Black Belt" have attempted to deny black voters equal access to the political process and to impair the ability of blacks to elect candidates of their choice. Specifically, the plaintiffs allege that this unlawful conduct includes, among other things, withholding absentee ballots from black voters, assisting in the casting of unlawful absentee ballots by white voters, intimidating black voters on and before election days, buying votes, multiple voting, and tampering with voting machines.

            According to the plaintiffs, this conduct violates federal criminal law. Black citizens have for years complained to federal officials, including certain of the named defendants, about this voting fraud and intimidation. This conduct, of which the

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    defendants are aware, has denied black citizens equal access to the political process and has impaired their ability to elect candidates of their choice. According to the complaint, the defendants have deliberately failed to investigate this criminal conduct.

            The complaint further alleges that in recent years black voters in the "Black Belt" counties of Greene, Lowndes, Perry, Sumter, and Wilcox have begun to have some success in electing minority candidates to local and state offices. In this area of Alabama, according to the complaint, there has been substantial white resistance to the electoral gains made by blacks. The plaintiffs allege that whites in the "Black Belt" vote mainly for the Republican Party, which is the party currently in control of the Department of Justice and the defendants in general. On the other hand, the blacks in the area have tended to support the Democratic Party in elections.

            Although the defendants, according to the complaint, failed to investigate white voting fraud in the area, in 1984 the defendants initiated major investigations of black political leaders and activists who the defendants alleged committed various election crimes. These alleged crimes, according to the plaintiffs, are no different than the crimes by local whites that the defendants have for years ignored. The plaintiffs allege that the defendants have deliberately pursued a discriminatory policy of investigating electoral fraud by blacks while ignoring the same type of conduct by whites.

            The complaint asserts that the defendants have deliberately focused their investigations on well-known black leaders who are in large part responsible for a dramatic increase in the number of black registered voters in the area. These leaders are associated with organizations that have assisted in efforts to elect candidates concerned with the needs of the black community. These organizations have opposed candidates who are not sympathetic to the concerns of the local blacks.

            According to the complaint, the investigations of black activists which began in 1984 coincided with and resulted from a change in the Justice Department's policies toward election crimes. Prior to 1984, the Justice Department allegedly focused investigations almost exclusively on crimes that affected the integrity of federal elections. Before 1984, the Justice Department did not investigate essentially "local" election fraud that was unlikely to influence federal elections. The plaintiffs allege that the election crimes with which black leaders have been charged are "local" in nature, affecting only local offices and involving very small numbers of votes.

            According to the complaint, this shift in focus toward local election crimes coincided with the policy change announced by the Justice Department in mid-1984. Under the new policy, federal officials would investigate "political participants" who "seek out the elderly, socially disadvantaged, or the illiterate, for the purpose of subjugating their electoral will." In implementing this new policy, the plaintiffs allege that the defendants explicitly used racial criteria in targeting areas to investigate. According to the plaintiffs, the defendants have investigated only black civil rights leaders under the new policy. The complaint alleges that in selecting counties in which to initiate investigations, the Department of Justice placed a high priority on counties in which whites have made complaints in the face of a black majority in the population.

            The complaint alleges that the defendants intended the references in the new policy to "poor, elderly, and socially disadvantaged voters" to mean black voters. The effect of the defendants' actions is to perpetuate the effects of prior unlawful discrimination.

            According to the plaintiffs, the investigations in the local area were instigated pursuant to the new policy. The plaintiffs allege that the defendants intentionally caused or permitted the investigations to be conducted in a manner that improperly interferes with the associational and political activities of black citizens in the area. The investigations are calculated to discourage poor, elderly, and socially disadvantaged blacks from exercising their right to vote. The plaintiffs assert that the defendants

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    are acting in concert with state officials to deny the plaintiffs their rights.

            In the course of these investigations in the "Black Belt," according to the allegations, federal agents have knowingly conducted "witchhunt-type" probes of constitutionally protected behavior. The agents have intensively and abusively interrogated poor, elderly, and socially disadvantaged black voters concerning political organizations of which the voters are members. The agents have suggested to black voters that the voters' constitutionally protected activities somehow amount to violations of federal and local criminal law. The federal agents have misinformed black voters about the voters' eligibility to cast absentee ballots. The agents have warned the black voters not to discuss the agents' questions with attorneys for black leaders under criminal investigation. According to the complaint, the defendants do not expect the investigations to lead to strong cases against the black leaders and activists.

            The complaint alleges that the investigations started prior to the September, 1984 primary, and became notorious before the 1984 general election. The complaint asserts that the investigations caused a decline in black voting in the 1984 general election. According to the complaint, the purpose of the investigations is to interfere with the associational and political activities of black citizens, and to discourage black voters from voting....

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