Dillard v. City of Foley
| Decision Date | 13 February 1996 |
| Docket Number | Civil Action No. 87-T-1213-N. |
| Parties | John DILLARD, et al., Plaintiffs, v. CITY OF FOLEY, Defendant. |
| Court | U.S. District Court — Middle District of Alabama |
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James U. Blacksher, Birmingham, AL, Neil Bradley, Laughlin McDonald, Mary Wyckoff, ACLU Foundation, Atlanta, GA, Julius L. Chambers, Scherlyn Ifill, Jacqueline A. Berrien, NAACP Legal Defense Fund, New York City, Edward Still, Birmingham, AL, J. Gerald Hebert, Alexandria, VA, for John Dillard, Damascus Crittenden, Jr., Earwen Ferrell, Clarence J. Jarrells, Ullysses McBride, Louis and Hall, Jr.
Clement C. Torbert, Jr., Maynard, Cooper & Gale, P.C., Montgomery, AL, Caine O'Rear, Hand Arendall, L.L.C., Mobile, AL, Mortimer Parker Ames, III, James H. Evans, Office of the Attorney General, Montgomery, AL, C.G. Chason, Chason & Underwood, Foley, AL, for City of Foley.
This case is now before the court on the parties' joint motion for approval and entry of a consent decree. The consent decree was submitted in settlement of additional claims brought by the plaintiffs, who represent a class of African-Americans, against the defendant City of Foley, Alabama, pursuant to § 2 of the Voting Rights Act, as amended, 42 U.S.C.A. § 1973 (West 1994), and the fourteenth and fifteenth amendments to the United States Constitution. Also before the court are a motion to intervene and an objection to the consent decree filed by the City of Gulf Shores and an objection filed by two residents of an area neighboring Foley. A hearing was heard on both motions and objections on September 6, 1995. For the reasons that follow, the consent decree will be approved, Gulf Shores's motion to intervene will be denied, and both objections will be overruled.
This lawsuit originally arose as a class action challenging Foley's at-large method of electing city council members as a violation of § 2 of the Voting Rights Act. In an order entered on May 16, 1989, the court found a violation of § 2, and Foley subsequently modified its election procedures and received preclearance for its election scheme from the United States Department of Justice pursuant to § 5 of the Voting Rights Act, as amended, 42 U.S.C.A. § 1973c (West 1994). The court retained its jurisdiction over the case pursuant to an agreement of the parties.
In 1989 and 1993, pursuant to § 5, Foley made submissions to the Department of Justice regarding a series of annexations it sought of areas outside of the city boundaries. The Attorney General objected to several of the annexations, stating that an attempted 1993 annexation "reflected a continuation of the city's ... practice of annexing areas that can be expected to contain predominantly white population, while discouraging the annexation of areas of predominantly black population." Specifically, the Attorney General cited Foley's failure to offer a legitimate, non-racial justification for its willingness to encourage annexation petitions from majority-white residential areas while discouraging and rejecting petition efforts from two majority-black residential areas, Mills Quarters and Beulah Heights. Foley did not respond to the Attorney General's objections and did not make any remedial efforts. Because they have not received the necessary § 5 preclearance, none of Foley's attempted residential annexations since 1989 has been legally enforceable.
On September 27, 1994, the plaintiffs filed a motion petitioning this court for further relief, claiming that Foley had engaged in racially-discriminatory annexation policies in violation of § 2 and the fourteenth and fifteenth amendments. According to the plaintiffs, the City of Foley has consistently "applied disparate and more difficult standards for annexation of geographic areas wherein black citizens reside than the standards applied to geographic areas wherein white citizens reside or will reside." As evidence of the racially-selective annexation policy, the plaintiffs allege that Mills Quarters had actively sought annexation and was rejected by Foley, and that Beulah Heights had petitioned for annexation and never got a response from Foley. Meanwhile, the plaintiffs allege, Foley affirmatively sought annexation of areas with mostly white residents.
On June 28, 1995, after engaging in settlement negotiations mediated by a Magistrate Judge, the parties submitted a joint motion for settlement and a proposed consent decree. The parties published a court-approved notice in one local paper weekly for four weeks and in another local paper weekly for three weeks. The notice summarized the terms of the proposed consent decree, advised readers how to register objections, and provided the location and time of a public fairness hearing. The court received a motion for intervention from Gulf Shores and two objections to the consent decree, one from Gulf Shores and one from two resident landowners in an area neighboring Foley. The court held a hearing on Gulf Shores's motion and the objections and provided an opportunity for class and non-class members to express their opinions on the proposed settlement.
The consent decree adopts as a finding of the court the fact that the plaintiffs' proof of a racially-selective annexation policy, if unrebutted, would establish a prima facie violation of § 2 of the Voting Rights Act and the United States Constitution. The decree further would prohibit Foley from adopting or undertaking any policy or practice regarding annexations which is racially discriminatory. It would require Foley to make remedial efforts, subject to preclearance by the Department of Justice. To this end, the decree would require Foley to hold referenda on annexation in seven areas adjacent to the city, Areas 1 through 6 on the attached map (1, 1A, 2, 3, 4, 5, and 6). Two of these areas, Mills Quarters and Beulah Heights (Areas 1 and 5), comprise primarily black residents. The other five areas are largely uninhabited or inhabited by white residents.
According to the terms of the proposed consent decree, all seven areas could hold binding annexation referenda, and any or all areas with majority support for annexation would be immediately incorporated into Foley. This annexation procedure would dispense with some of the provisions of §§ 11-42-2 and 11-42-21 of the 1975 Alabama Code (Michie 1989), which require the consent of certain landowners in areas contemplating annexation.
In the proposed consent decree, the parties stipulate "that the annexation of the unincorporated areas within the `solid blue line' on the attached map would be fair, reasonable, in the interest of both sides and in furtherance of the objectives of the Voting Rights Act." The parties agree that this stipulation will assist Foley in gaining Justice Department approval for the proposed annexations, since Foley does intend to attempt to annex all of the areas within the blue line and wants to submit them all as a "package" to the Justice Department for preclearance.
There is a small area south of Highway 12 but within the solid blue line which would not be subject to the abbreviated annexation procedures of Areas 1 through 6 under the terms of the consent decree. This area, the "southerly tail," would be subject to the § 11-42-21 annexation requirements.
Some of the areas within this southerly tail are the subject of a pending state-court lawsuit between Foley and neighboring Gulf Shores. Foley has attempted to annex these areas, and Gulf Shores has challenged the annexations in the Circuit Court of Baldwin County, Alabama. Among Gulf Shores's contentions in that case is that Foley's attempted annexations of areas in the southerly tail violated Alabama annexation statutes, which require that a territory be "contiguous to the boundary of and form a homogeneous part of the annexing city or town." See 1975 Alabama Code § 11-42-2(10) (Michie 1989).
Gulf Shores has moved to intervene in this action as of right, under Rule 24(a)(2) of the Federal Rules of Civil Procedure.1 Under Rule 24(a)(2), a party seeking to intervene as a matter of right must meet the following requirements: (1) the application must be timely; (2) the interest asserted must relate to the property or transaction that is the subject of the action; (3) the applicant must be situated such that disposition of the action may impede or impair the applicant's ability to protect that interest; and (4) the interest asserted must be represented inadequately by the existing parties to the lawsuit. Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir.1989). If these four requirements are all met, intervention must be granted. Id. at 1213; see also ManaSota-88, Inc. v. Tidwell, 896 F.2d 1318, 1321 (11th Cir.1990).
Gulf Shores's motion for intervention was timely, as it was filed almost immediately after publication of the proposed consent decree, which provided the first formal notice that Areas 3 and 4 and the southerly tail would be part of the parties' remedial plan.
Gulf Shores does not, however, meet the interest or impairment of interest tests under Rule 24(a)(2). In order to support a claim for intervention, Gulf Shores would have to show a "`direct, substantial, legally protectible interest in the proceeding.'" Chiles, 865 F.2d at 1213 (citing Athens Lumber Co. v. Federal Election Comm'n, 690 F.2d 1364, 1366 (11th Cir.1982)). This is not itself a rigid or technical standard; rather, the court's inquiry is a flexible one, which focuses on the particular facts and circumstances surrounding each application. United States v. Perry County Bd. of Ed., 567 F.2d 277, 279 (5th Cir.1978).2
Gulf Shores first claims that it has an interest in the areas within the southerly tail that are currently the subject of state-court litigation...
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