Childrey v. Bennett, No. 92-6895

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore BIRCH, Circuit Judge, CLARK; HOEVELER
Citation997 F.2d 830
PartiesPearlie M. CHILDREY; Gwendolyn Patton, Plaintiffs-Appellants, v. Jim BENNETT, in his Official Capacity as Secretary of State for the State of Alabama, Defendant-Appellee.
Decision Date05 August 1993
Docket NumberNo. 92-6895

Page 830

997 F.2d 830
Pearlie M. CHILDREY; Gwendolyn Patton, Plaintiffs-Appellants,
v.
Jim BENNETT, in his Official Capacity as Secretary of State
for the State of Alabama, Defendant-Appellee.
No. 92-6895.
United States Court of Appeals,
Eleventh Circuit.
Aug. 5, 1993.

Page 831

Lewis Pitts, Durham, NC, for plaintiffs-appellants.

James H. Evans, Jeffrey Harris Long, Attys. Gen., Montgomery, AL, for defendant-appellee.

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

Before BIRCH, Circuit Judge, CLARK, Senior Circuit Judge, and HOEVELER *, Senior District Judge.

HOEVELER, Senior District Judge:

This appeal involves a factual question: whether the Appellant, Gwendolyn Patton, submitted the minimum number of voter signatures required by Alabama law for her to have been named on the ballot as an independent candidate for the November 1992, election for the United States Senate. Having found no clear error in the district court's conclusion that Patton failed to prove by a preponderance of the evidence that she submitted the required number of signatures to the Secretary of State within the deadline established by Alabama law, we AFFIRM the decision of the district court.

I. BACKGROUND

On July 22, 1992, Gwendolyn Patton, a black woman, filed an action in the United States District Court for the Middle District of Alabama challenging the constitutionality of an Alabama election law which required independent candidates to amass signatures from one per cent of the voters who cast votes in the last gubernatorial election. Case No. 92 V-885-N. Patton sought to have her

Page 832

name placed on the ballot as an independent candidate in the November 1992, election for the United States Senate. Under the law that she sought to overturn, Section 17-7-1(a)(3) of the Code of Alabama, Patton was required to submit a petition containing approximately 26,000 signatures by the August 31, 1992, filing deadline. The suit was resolved after the State conceded that such disparity of treatment between independent and minor party candidates was unconstitutional; accordingly, on August 31, 1992, the date of the petition filing deadline, the State and Patton entered into a consent decree and order signed by the district court which reduced the number of required signatures to 12,158, the same number required for minor party candidates to appear on the ballot.

Late in the afternoon of August 31, Patton submitted to the Elections Division of the Secretary of State a jumbled box of petition sheets which she felt contained more than 12,158 signatures. The petition sheets were disorganized because she had dropped the box while carrying it to the election office. Steven Prince and Vicki Balough of the Secretary of State's office received the petition, which was then stored in the office of the Elections Division Director, Jerry Henderson.

Prince, Balough, and Henderson each separately counted Patton's petition sheets, with Balough counting twice. The number of signatures counted differed on each of the four counts, but none totaled the required 12,158 signatures. The counts reached were as follows: 11,785 (Prince), 11,792 (Balough), 11,577 (Balough), and 11,791 (Henderson). 1 Based on the four counts tallied by its officials, the Elections Division informed Patton on September 8, 1992, that her petition did not contain the required number of signatures and that her name would not be on the ballot.

On October 1, 1992, Patton filed the instant lawsuit against the then Secretary of State of Alabama, Billy Joe Camp 2, alleging that the State's failure to place her on the ballot violated the consent decree and order of August 31, 1992, as well as Patton's rights under the First, Fourteenth, and Fifteenth Amendments. Pearlie M. Childrey, a registered voter, joined Patton as a Plaintiff, claiming a violation of rights protected by the Voting Rights Act, 42 U.S.C. § 1973. Plaintiffs' complaint alleged that Patton had filed the requisite number of signatures, and it sought an order requiring the Secretary of State to place Patton's name on the November 1992, ballot as an independent candidate.

Upon agreement of the parties, on October 8, 1992, the district court held an expedited non-jury trial of the case. United States District Court Judge Robert E. Varner presided over the trial and ruled from the bench, finding that Plaintiffs had failed to carry their burden of proof by a preponderance of the evidence that Patton had submitted the required 12,158 signatures. A written opinion followed on October 9, 1992, at which time judgment was entered for the State.

In explaining the basis for its ruling, the district court relied principally on the four counts of Patton's petition which were made by State officials. The district court further ruled that Plaintiffs had failed to substantiate the additional allegations they had made regarding the adequacy of the security procedures employed by the Elections Division to prevent unauthorized persons from tampering with candidates' petitions. Patton claimed that numerous pages of her petition had disappeared from the Elections Division office prior to the State counts, but the district court found that "there was no direct evidence of such tampering ..." Order of October 9, 1992, at page 4. Rather, the district court concluded that it was Patton's disorganization, and the attendant confusion caused by her...

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31 practice notes
  • LaFleur v. Wallace State Community College, Civil Action No. 94-D-747-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • 18 Junio 1996
    ...the evidence, evaluating the credibility of witnesses, and deciding questions of fact, as well as issues of law. Childrey v. Bennett, 997 F.2d 830, 834 (11th Cir.1993) (holding that "it is the exclusive province of the judge in non-jury trials to assess the credibility of witnesses and......
  • Sandoval v. Hagan, No. Civ.A. 96-D-1875-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • 1 Enero 1999
    ...the evidence, evaluating the credibility of witnesses, and deciding questions of fact, as well as issues of law. Childrey v. Bennett, 997 F.2d 830, 834 (11th Cir.1993) (holding that "it is the exclusive province of the judge in non-jury trials to assess the credibility of witnesses and......
  • Kenny A. ex rel. Winn v. Perdue, No. 06-15514.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 3 Julio 2008
    ...the weight of testimonial evidence are clearly within the purview of the district court in these circumstances. See Childrey v. Bennett, 997 F.2d 830, 834 (11th Cir.1993) ("[I]t is the exclusive province of the judge in non-jury trials to assess the credibility of witnesses and to assi......
  • Jefferson v. GDCP Warden, No. 17-12160
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 17 Octubre 2019
    ...testimony will not be second-guessed on appeal. See United States v. Garcia, 890 F.2d 355, 359 (11th Cir. 1989) ; Childrey v. Bennett, 997 F.2d 830, 834 (11th Cir. 1993). We are therefore presented with these facts: Jefferson’s counsel retained a psychologist who examined the Petitioner and......
  • Request a trial to view additional results
31 cases
  • LaFleur v. Wallace State Community College, Civil Action No. 94-D-747-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • 18 Junio 1996
    ...the evidence, evaluating the credibility of witnesses, and deciding questions of fact, as well as issues of law. Childrey v. Bennett, 997 F.2d 830, 834 (11th Cir.1993) (holding that "it is the exclusive province of the judge in non-jury trials to assess the credibility of witnesses and......
  • Sandoval v. Hagan, No. Civ.A. 96-D-1875-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • 1 Enero 1999
    ...the evidence, evaluating the credibility of witnesses, and deciding questions of fact, as well as issues of law. Childrey v. Bennett, 997 F.2d 830, 834 (11th Cir.1993) (holding that "it is the exclusive province of the judge in non-jury trials to assess the credibility of witnesses and......
  • Kenny A. ex rel. Winn v. Perdue, No. 06-15514.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 3 Julio 2008
    ...the weight of testimonial evidence are clearly within the purview of the district court in these circumstances. See Childrey v. Bennett, 997 F.2d 830, 834 (11th Cir.1993) ("[I]t is the exclusive province of the judge in non-jury trials to assess the credibility of witnesses and to assi......
  • Jefferson v. GDCP Warden, No. 17-12160
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 17 Octubre 2019
    ...testimony will not be second-guessed on appeal. See United States v. Garcia, 890 F.2d 355, 359 (11th Cir. 1989) ; Childrey v. Bennett, 997 F.2d 830, 834 (11th Cir. 1993). We are therefore presented with these facts: Jefferson’s counsel retained a psychologist who examined the Petitioner and......
  • Request a trial to view additional results

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