Burton v. Hobbie

• Decision Date: 11 April 1983
• Docket Number: Civ. A. No. 81-617-N.
• Citation: 561 F. Supp. 1029
• Parties: William L. BURTON, etc., et al., Plaintiffs, v. Walker HOBBIE, Jr., etc., et al., Defendants, Charles A. Graddick, Attorney General for the State of Alabama, Defendant-Intervenor.
• Court: U.S. District Court — Middle District of Alabama

561 F. Supp. 1029

William L. BURTON, etc., et al., Plaintiffs, v. Walker HOBBIE, Jr., etc., et al., Defendants, Charles A. Graddick, Attorney General for the State of Alabama, Defendant-Intervenor.

Civ. A. No. 81-617-N.

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

April 11, 1983.

James U. Blacksher and Larry T. Menefee, Blacksher, Menefee & Stein, Mobile, Ala., Solomon Seay, Gray, Seay & Langford, Montgomery, Ala., and W. Edward Still, Reeves & Still, Birmingham, Ala., for plaintiffs.

Charles A. Graddick, Atty. Gen., State of Ala., Montgomery, Ala., Thomas W. Thagard, Jr., and David R. Boyd, Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, Ala., and Lee L. Hale, Mobile, Ala., for defendant Hobbie and intervening defendant.

Charles A. Graddick, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., State of Ala., Montgomery, Ala., for defendant Siegelman.

Before JOHNSON, Circuit Judge, and HOBBS and THOMPSON, District Judges.

JOHNSON, Circuit Judge:

The day may have now arrived to which the late Judge Richard T. Rives referred when expressing his feelings and the feelings of many of us in Dent v. Duncan, 360 F.2d 333 (5th Cir.1966):

I look forward to the day when the State and its political subdivisions will again take up their mantle of responsibility, treating all of their citizens equally, and thereby relieve the federal Government of the necessity of intervening in their affairs. Until that day arrives, the responsibility for this intervention must rest with those who through their ineptitude and public disservice have forced it.

Id. at 337-38. Enactment of Act No. 83-154 marks the first time in Alabama's history that its Legislature has provided an apportionment plan that is fair to all the people of Alabama.

I.

More than twenty years have passed since Sims v. Frink, 208 F.Supp. 431 (M.D. Ala.1962), aff'd sub nom. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), wherein this Court was forced to assume responsibility for legislative reapportionment in Alabama. Regardless of the fact that the Constitution of Alabama required the Legislature to reapportion in accordance with the latest available federal census,¹ the Alabama Legislature had not at that time reapportioned itself in over sixty years. This Court afforded the malapportioned Legislature ample opportunity to reapportion itself in accordance with the Alabama and Federal Constitutions.² But the Legislature failed to do so. Despite this failure, the Court refused to enjoin the 1962 election of Alabama legislators. It reluctantly ordered partial and provisional reapportionment of the Legislature, hoping that the Legislature would thereby be enabled to provide for a true reapportionment; directed the Legislature to enact a constitutionally valid reapportionment plan for the 1966 elections; and retained jurisdiction of the case. Sims v. Frink, supra, 208 F.Supp. at 441-42. When the Supreme Court affirmed these actions in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), it remanded the case for further proceedings and specifically required further action should the reapportioned Alabama Legislature fail to enact a valid, permanent apportionment plan in time for the 1966 elections. Id. at 587, 84 S.Ct. at 1394.

By July of 1965 it was clear that the Legislature had again failed to reapportion itself, so further action by this Court became necessary. Recognizing that legislative reapportionment is primarily a matter for legislative consideration and determination, the Sims Court ordered the parties to file their proposals for a judicial remedy designed to eliminate the invidious discrimination existing in both houses of the Legislature. The Legislature then convened in special session and enacted bills to reapportion both houses. The Court carefully scrutinized those Acts and considered their validity with respect to the State and Federal Constitutional requirements that: (1) apportionment be on a population basis so that one man's vote is worth as much as another's; (2) county lines be respected wherever possible; and (3) apportionment not be for the purpose of racial discrimination.³Sims v. Baggett, 247 F.Supp. 96, 105 (M.D.Ala.1965). It adopted the multi-member district senatorial plan of the Legislature but, finding that the Legislature's House plan discriminated against blacks, provided an alternative plan of multi-member House districts, and retained jurisdiction, ordering that:

...the apportionment of the Alabama Legislature as herein ordered remain in effect without change, except by order of this Court, until the Legislature of the State of Alabama reapportions itself... after the next decennial census to be conducted in 1970....

After completion of the 1970 census the Sims Court consolidated three class actions wherein the plaintiffs requested state-wide reapportionment and mid-term elections, issuing an order that required defendants to show cause why the Legislature was not under a mandatory constitutional duty to reapportion itself, and, if the Legislature should fail to perform its duty, why the Court would not then be under a duty to reapportion the Legislature constitutionally. Sims v. Amos, 336 F.Supp. 924, 931-32 (M.D.Ala.), aff'd, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972). Nevertheless, the 1971 General Session of the Alabama Legislature adjourned without producing a valid reapportionment plan. On October 8, 1971, the Court notified the Legislature that it had until December 2, 1971, to enact a plan. A special session was convened, but the Legislature once again failed to discharge its duty.

Both the plaintiffs and the defendants in Sims v. Amos proffered plans for court-ordered reapportionment.⁴ The defendants also requested additional time for the Legislature to reapportion itself, but the Court refused this request for three reasons. First, the state had been allowed more than adequate time and had been given every reasonable opportunity to perform its duty. Second, implementation of a reapportionment plan for the 1974 elections had to begin as soon as possible because it would involve time-consuming administrative tasks. Third, the Court wished to allow an adequate period for an effective appeal. Sims v. Amos, supra, 336 F.Supp. at 940. After carefully considering the plans proffered by the defendants and the plaintiffs, this Court adopted and ordered implementation of the plaintiffs' single-member district plan. Unlike the defendants' plans, the plaintiffs' plan satisfied all requirements of the State and Federal Constitutions. It drew "a fair and reasonable balance between the competing interests of affording equal representation and of maintaining county lines. Boundary lines were sacrificed only where absolutely necessary to satisfy the constitutional requirement of one man one vote." Id. at 939.

Acknowledging that it had the power to order mid-term elections in 1972, 336 F.Supp. at 940, the Court nevertheless declined to exercise its power, finding that mid-term elections would be inappropriate. Id. at 940-41. Controlled by principles of comity, it once again refused to interfere with state government unless absolutely necessary.

II.

The present litigation was initiated⁵ on November 5, 1981, when plaintiffs brought this class action on behalf of themselves and all other black citizens of Alabama, claiming that the newly enacted legislative reapportionment plan, Act No. 81-1049, violated the rights of black citizens under the State and Federal Constitutions, see generally supra note 3, and under Section 5 of the Voting Rights Act of 1965, 42 U.S.C.A. § 1973c.⁶ Because Act No. 81-1049 was rendered legally unenforceable by the United States Attorney General's objections to the Act on May 6, 1982, under Section 5 of the Voting Rights Act,⁷ this Court never passed on the merits of the plaintiffs' challenges to the Act. On May 21, 1982, it ordered defendants to file an amended plan and submit it to the Attorney General for preclearance. The plaintiffs were also directed to file their proposed plan. On June 1, 1982, the Legislature enacted a second reapportionment plan, Act No. 82-629, and submitted it for preclearance. By letter of June 8, 1982, the Assistant Attorney General of the United States stated that, in the limited time available, evaluation of Act No. 82-629 could not be favorably completed.⁸

At a hearing on June 14, 1982, all parties agreed that the Court had to adopt an interim plan, within the week, in order for the plan to be available for use for the fall primary and general elections. Plaintiffs urged the adoption of their Plan B. They argued that Act No. 82-629 impermissibly diluted black voting strength in several districts and disregarded the integrity of county lines. Defendants, on the other hand, urged implementation of Act No. 82-629, arguing that they lacked sufficient time to study plaintiffs' Plan B, that the Attorney General had found no unfavorable impact on black voters in sixty of sixty-seven counties, and that the legislative plan was entitled to deference. At the Court's request the parties provided suggested modifications for Act No. 82-629 to meet the Attorney General's expressed concerns that predominantly black communities would be fragmented in the seven districts which had not yet been precleared.

The legal guidelines for the Court's decision, rendered on June 21, 1982, were largely framed by Upham v. Seamon, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982), wherein the Supreme Court stated that:

Whenever a district court is faced with entering an interim reapportionment order that will allow elections to go forward it is faced with the problem of "reconciling the requirements of the Constitution with the goals of state political policy." Connor v. Finch, 431 U.S. 407 at 414 97 S.Ct. 1828 at 1833, 52 L.Ed.2d 465 (1977). An appropriate reconciliation of these two goals can only be reached if the district court's

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