Brown v. Moore

• Decision Date: 13 December 1976
• Docket Number: Civ. A. No. 75-298-P.
• Citation: 428 F. Supp. 1123
• Parties: Leila G. BROWN et al., Plaintiffs, v. John L. MOORE et al., individually and in his official capacity as Probate Judge of Mobile County, Defendants.
• Court: U.S. District Court — Southern District of Alabama

428 F. Supp. 1123

Leila G. BROWN et al., Plaintiffs, v. John L. MOORE et al., individually and in his official capacity as Probate Judge of Mobile County, Defendants.

Civ. A. No. 75-298-P.

United States District Court, S. D. Alabama, S. D.

December 9, 1976.

As Amended December 13, 1976.

Gregory B. Stein, J. U. Blacksher and Larry Menefee, Mobile, Ala., Edward Still, Birmingham, Ala., Jack Greenberg, James M. Nabrit, III, and Chas. E. Williams, III, New York City, for plaintiffs.

James C. Wood, Ralph Kennamer, Abe Philips, Mobile, Ala., for defendants.

OPINION AND ORDER AS TO THE BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, ET AL.

PITTMAN, Chief Judge.

This is an action brought by Leila G. Brown, and other black plaintiffs representing all Mobile County, Alabama, blacks as a class, claiming the present at-large system of electing county commissioners and school commissioners abridges the rights of the County's black citizens under the First, Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution of the United States; under the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983; and under the Voting Rights Act of 1965, as amended, 42 U.S.C. Sec. 1973, et seq.

The defendants are the Board of School Commissioners of Mobile County (Board or school commissioners), Robert R. Williams, Dan C. Alexander, Jr., Norman J. Berger, Ruth F. Drago, and Homer L. Sessions, the Mobile County Commissioners, Howard E. Yeager, Coy Smith, G. Bay Haas, and the Probate Judge, John L. Moore, the Court Clerk of Mobile County, John E. Mandeville, and the Sheriff of Mobile County, Thomas J. Purvis, and Mobile County, who are sued individually and in their official capacities.

For purposes of clarity, a separate opinion and order will be rendered in this case against the school commissioners, et al., and the Mobile County Commissioners, et al.¹

The plaintiffs contend that the at-large election system, in the historical and present context of official and social racism in Alabama and Mobile County, has for all practical purposes denied black citizens equal access to participation in the county-wide election of School Commissioners of Mobile County and has substantially diluted their vote.²

This court has jurisdiction over the claims grounded on 42 U.S.C. Sec. 1983 against the Board members and over the claims grounded on 42 U.S.C. Sec. 1973 against all defendants and under 28 U.S.C. Secs. 1343(3)-(4) and 2201.

This cause was certified as a class action under Rule 23(b)(2) F.R.C.P., the plaintiff class being all black persons who are now citizens of Mobile County, Alabama.

A claim originally asserted under 42 U.S.C. Sec. 1985(3) was dismissed for failure to state a claim upon which relief can be granted.

The defendants under consideration in this portion of the case are the five school commissioners, the Probate Judge, the Court Clerk of the County, the Sheriff and the Board of School Commissioners of Mobile County.

The plaintiffs seek a preliminary and permanent injunction enjoining all defendants and others acting at their direction or in concert with them, of holding, supervising, or certifying the results of any election for the Board under the present at-large election system and ordering the reapportionment of the Board into racially non-discriminatory single-member districts, together with attorneys' fees and costs. (See preliminary pretrial response filed July 30, 1976.)

Plaintiffs claim that to prevail they must prove to this court's satisfaction the existence of the elements probative of voter dilution as set forth by White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd, sub nom East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), contending Zimmer is only the adoption of specified criteria by the Fifth Circuit of the White dilution requirements.

The Board defendants stoutly contest the claim of unconstitutionality of the Board as measured by White and Zimmer. They claim the plaintiffs have no constitutional right to a politically safe black district and that the mere showing of adverse impact on the plaintiffs' political fortunes will not warrant the relief requested as measured by White and Zimmer.

They further contend that Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), erects a barrier since the legislative act forming the multi-member, at-large election of the Board members was without racial intent or purpose. They assert Washington, 426 U.S. 229, 96 S.Ct. at 2047-49, which was an action alleging due process and equal protection violations, held that in these constitutional actions, in order to obtain relief, proof of intent or purpose to discriminate by the defendants must be shown. Defendants state, therefore, that since the statute under which the Board members are elected was passed when essentially all blacks were disenfranchised, there could be no intent or purpose to discriminate at the time the statute or the Constitution was adopted. Alternatively, however, defendants contend that if Washington does not preclude consideration of the dilution factors of White and Zimmer, they should still prevail because plaintiffs have not sustained their burden of proof under these and subsequent cases.

Plaintiffs' reply is to the effect that Washington did not establish any new constitutional purpose principle and that White and Zimmer still are applicable. If, however, this court finds Washington to require a showing of racial motivation at the time of passage of the 1919 or later statutes, plaintiffs contend they should still prevail, claiming the at-large election system was designed and is utilized with the motive or purpose of diluting the black vote. Plaintiffs claim that the discriminatory intent can be shown under the traditional tort standard.

The defendants further contend that the plaintiffs are not entitled to relief because they do not come before the court with clean hands because the plaintiffs thwarted the efforts of the Board to procure passage by the State Legislature of a constitutionally sound statute providing for single-member districts.

FINDINGS OF FACT

Mobile County, Alabama, is located in the southwestern part of the State bordered on the south by the Gulf of Mexico, on the west by the State of Mississippi, and a large portion of the county to the east by Mobile Bay. In 1970, the county's population was 317,308 with approximately 32.5% of the residents non-white. (Defendants' Exhibit No. 6, p. 1.)

A 1976 estimate placed the county's population at 337,200 with approximately 32.5% of the population non-white. (Defendants' Exhibit No. 6, p. 1.) Practically all county non-whites are black. The 1970 population of the City of Mobile was 190,026 with approximately 35.4% of the residents black.³

The 1970 voter age population, 18 years of age and older, was 64.8% for whites and 55.2% for blacks. (Defendants' Exhibit No. 6, p. 18.) An estimate of the black vote as percentage of the total vote in the 1976 primary elections was 24.4% black of the total vote cast. (Defendants' Exhibit No. 6, p. 24).

Almost two-thirds of the county's population resides in the City of Mobile and a large portion of the other blacks in the county reside in the adjoining municipality of Prichard. Of the 103,238 non-whites in the county, 88,890 live in Mobile and Prichard. Only 12,718 non-whites live outside the incorporated municipalities. (Defendants' Exhibit 6, p. 5). It is obvious that the evidence relating to the City of Mobile elections, and other evidence relating to voter dilution in the City of Mobile are relevant in this case.

The Mobile County School System is unique in the State of Alabama. The first public school system in the State of Alabama was organized as the Mobile County System.⁴

The Constitution of 1901 preserved the integrity of this system.⁵

Most of the school systems in the rest of the State have both city and county school systems in the various counties.

The plaintiffs contend that the five member at-large scheme was the result of Act No. 498 passed on September 21, 1939, construed together with Title 52, Sec. 62, et seq., Code of Alabama (1958) (1939, etc. Acts), which is derived from the 1927 school code. The defendants contend that these are legislative acts of general application and have no applicability to the Mobile County Public School System by virtue of the provisions of Sec. 270 of the Constitution of Alabama of 1901 as interpreted by the Alabama Supreme Court in case law. The defendants contend the present existence of the school system and of the school board is provided by a local legislative act passed in 1919, Local Acts 1919, p. 73. In any event, there are five commissioners who run on a place-type ballot and are elected by an at-large vote of the county. There is no requirement that each commissioner reside in a particular part of the county. The commissioners are elected on a staggered basis every two years for a six year term. The defendants Probate Judge, Circuit Clerk of Mobile County, and Sheriff, or persons appointed in their stead, by the Register in equity, serve as the appointing board for election officials (Title 17, Secs. 120-26, Code of Alabama (1958) and as the Board of Election supervisors to certify election results. Id. Secs. 139, 139(1), 199, 209, 344).

In Zimmer, aff'd, sub nom. East Carroll Parish School Board, (". . . but without approval of the constitutional views expressed by the Court of Appeals."), the Fifth Circuit synthesized the White opinion with the Supreme Court's earlier Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971) decision, together with its own opinion in Lipscomb v. Jonsson, 459 F.2d 335 (5th Cir. 1972) and set out certain factors to be considered.

Based on these factors as set out in Zimmer, 485 F.2d at 1305, the court makes the...