Dyer v. Love, GC 6452-S.
| Decision Date | 30 December 1969 |
| Docket Number | No. GC 6452-S.,GC 6452-S. |
| Citation | 307 F. Supp. 974 |
| Parties | Howard DYER, Jr. and Sam Valencino, Plaintiffs, v. Paul C. LOVE et al., Defendants. |
| Court | U.S. District Court — Northern District of Mississippi |
Philip Mansour, Martin Kilpatrick, Greenville, Miss., for plaintiffs.
Edward J. Bogen, of Bogen, McGough & Bogen, J. A. Lake, of Lake, Tindall & Hunger, George H. Slade, Greenville, Miss., for defendants.
The complaint herein was filed September 14, 1964. The plaintiffs, Emmet Hardy, Howard Dyer, Jr. and Sam Valencino were, at that time, adult resident citizens, taxpayers and qualified voters of the Third Supervisor's District of Washington County, Mississippi. The defendants included those persons who, at that time, constituted the Board of Supervisors of Washington County, Mississippi. The complaint seeks to correct malapportionment of the five districts of the county for the election of members of the board of supervisors. On behalf of themselves and all other residents of the populous third district, plaintiffs allege that population disparities among the five districts, each of which elects one member of the board, constitute invidious discrimination against residents of the third district in violation of the Fourteenth Amendment. Plaintiffs invoke the provisions of 42 U.S.C. §§ 1983 and 1988. Jurisdiction is alleged under 28 U.S.C. § 1343(3).
The complaint states two grounds of relief: (1) That the supervisor districts of Washington County are malapportioned and thus dilute the rights of voters in the third district in which plaintiffs reside; (2) That § 2870 Mississippi Code, Annotated, 1942, which provides for an election on the question of redistricting the county, upon the petition of twenty-five percent of the qualified electors of a county, is, itself, unconstitutional because of the burden it places on constitutional rights. For reasons hereafter made apparent, it is not proper or necessary for the Court to consider the second ground for relief set forth in the complaint.
The complaint seeks an order of the Court holding void the present districting of the county, and an injunction commanding defendants to submit a districting plan in conformity to constitutional standards; and a redistricting of the county for the election of members of the board of supervisors, should defendants fail to submit to the Court a plan designed to meet constitutional standards.
The plaintiffs filed an application for the creation of a Three-Judge Court to hear the cause pursuant to the provisions of 28 U.S.C. §§ 2281 and 2284. On September 17, 1964, a Three-Judge Court consisting of Circuit Judge Walter P. Gewin and District Judges W. Harold Cox and Claude F. Clayton, was constituted to hear the case.
A brief summary of the procedural history of the case is necessary to be given at this point for a proper understanding of this opinion.
On November 18, 1964, defendants filed a motion to dismiss the complaint alleging: (1) Lack of jurisdiction over the subject matter, (2) Failure to exhaust administrative remedies, (3) A plan and adequate remedy at law, and (4) Failure to state a cause of action upon which relief could be granted. The motion to dismiss was overruled on March 29, 1965.
On April 7, 1965, defendants filed an answer and on April 20, 1965, the parties filed a stipulation to be used as evidence and waived a hearing for the purpose of taking any further evidence in the case.1
On June 14, 1965, the Three-Judge Court entered an order staying any action in the cause for a period of one year so that the plaintiffs might pursue the statutory remedy provided under § 2870 of the Mississippi Code, Annotated, 1942. The Court refrained from deciding the issue of jurisdiction at that time.
On June 28, 1966, at the request of the Court, the parties filed a joint statement to the effect that no action had been taken by any of the parties during the interim period of one year and that no further stipulation of fact was necessary. In the joint statement the parties further stated that during the preceding year one of the plaintiffs, Emmet Hardy, had passed away and the parties requested that the action proceed in favor of the surviving plaintiffs.
On August 10, 1966, plaintiffs filed a motion for leave to file amended pleadings to seek an allowance of reasonable attorney fees in the case. A careful search of the record does not reveal that an order on the motion has been entered.
On September 28, 1966, a majority of the Three-Judge Court, District Judge Cox, dissenting, issued an opinion and entered an order in the case dissolving the Court and directing that the cause proceed before a district court of one judge.
After considering the case on its merits, Judge Clayton entered an order, which the Court accepts and adopts as the law of the case. Judge Clayton's opinion and order are complete, clear and concise, and leaves the Court with only the question of the manner in which it is to be implemented. Judge Clayton's opinion and order does not deal with the amendment proposed by plaintiff which seeks the allowance of attorney fees for their attorney, to be taxed as a part of the costs of the case. This question remains for disposition.
The order entered on the merits of the case, dated September 28, 1966, directed defendants to prepare and submit to the Court for approval a proposed plan for the division of the county into five districts for election of members of the Board of Supervisors, the boundaries of which were to be so drawn as to achieve as nearly as practicable equality of population among the districts. The order also provided that plaintiffs should file a reply to the proposal of defendants, expressing their objections of law and facts, if any, to said proposals, or their concurrence therewith. The Court retained jurisdiction of the case for all purposes.
Thereafter, on October 11, 1966, in compliance with the Court's order, defendants presented to the Court a proposal to redistrict the county into five districts for the election of members of the board of supervisors of the county; supporting the proposal with maps to delineate the boundaries of the proposed districts. The proposal stated specifically that the Board of Supervisors did not desire to adopt the provisions of House Bill 223, of the Mississippi Legislature approved May 27, 1966, granting authority to boards of supervisors in the state to call for the election of its members at elections in which all qualified voters of the county could participate, but retaining residency requirements of the members in order to serve on the board.2
The plaintiffs filed objections to the proposal of defendants, on October 21, 1966, and tendered to the Court a proposal of their own, supported by an appropriate map delineating the boundaries of the proposed districts.
Judge Clayton notified the parties on December 13, 1966 that he intended to delay the final disposition of the case, until the Supreme Court of the United States acted upon certain cases then pending in the court, which he felt would control the disposition of the case sub judice.
On May 29, 1967, defendants filed a motion seeking permission to withdraw the proposal previously presented by them and an order directing the election of members of the board of supervisors in the 1967 elections from the county at large each candidate to be a resident of the districts as presently existing, which such candidate proposed to represent.3
The Supreme Court of the United States decided the case of Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 on May 22, 1967. In light of the Dusch case, on June 6, 1967, Judge Clayton entered an order requiring the defendants to show cause at a time and place designated in the order why the board of supervisors' election for Washington County should not be held on an at-large basis with the candidates from each of the beats of the county, as then constituted, to be a resident of their respective beats.
At the time and place designated, with all parties before the Court in person or by counsel, the Court entered an order requiring defendants to direct that all candidates for nomination and election as supervisors of Washington County for the year 1967 should be bona fide resident free-holders of their respective beats or supervisors' districts from and for which they should run, as such beats or districts, were then constituted, and further that the candidates should be voted upon by the county at large and their nomination and election determined as provided by law on a county at-large basis.
The order expressly stated that it was a temporary order and was being entered solely for the purpose of providing for the 1967 elections of the county, and that all issues in the cause were reserved for final disposition by the Court.
After the 1967 elections, an order was entered herein to substitute successors in office of the original defendants, members of the board of supervisors of the county.
On February 14, 1969, plaintiffs filed a motion seeking an order of the Court enjoining defendants from using county funds to pay counsel expense in the case. This motion was denied at the hearing of the case on its merits at Greenville, Mississippi, on September 8, 1969.
On February 20, 1969, defendants filed a motion with the Court for an order permitting them to adopt the provision for election of supervisors at-large, as provided in House Bill 223, Laws of 1966, which amended § 2870, Mississippi Code, 1942, Annotated.
The cause was submitted to the Court on its merits at a hearing held on September 8, 1969, at Greenville, Mississippi. At the conclusion of the hearing, after receiving oral arguments, the Court requested counsel to submit briefs on two points, namely:
To continue reading
Request your trial
-
Wallace v. House
...3239, S.D.Miss., Russell, J., February 18, 1970); Scott v. Burkes (No. 4782, S.D.Miss., Nixon, J., April 29, 1971); Dyer v. Love, 307 F.Supp. 974, 986 (N.D.Miss., 1969); and Martinolich v. Dean, 256 F.Supp. 612 (S.D. Miss., 70. Similarly in Louisiana in cases involving redistricting, the vo......
-
Skehan v. Board of Trustees of Bloomsburg State College
...Lee v. Southern Homes Sites Corp., 444 F.2d 143 (5th Cir. 1971); N.A.A.C.P. v. Allen, 340 F.Supp. 703 (M.D.Ala.1972); Dyer v. Love, 307 F.Supp. 974 (N.D.Miss.1969). See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). The district court refused to......
-
Brewer v. SCHOOL BD. OF CITY OF NORFOLK, VIRGINIA
...p. 322 (1967). But, cf., Bradley v. School Board of City of Richmond, Virginia (D.C.Va.1971) 53 F.R.D. 28, 41. 23 Cf., Dyer v. Love (D.C.Miss.1969) 307 F.Supp. 974, 987, which relied on Bell and Bradley to support award of attorney's fees in an apportionment case where the conduct of the de......
-
Harradine v. Board of Sup'rs of Orleans County
...950, 90 S.Ct. 1870, 26 L.Ed.2d 290; Sims v. Amos, D.C., 340 F.Supp. 691, affd. 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215; Dyer v. Love, D.C., 307 F.Supp. 974) to bolster its conclusions. The cases relied on by the court, however, predated the rejection of the "private attorney general" doc......