Kennedy v. Lynd, 19636

• Decision Date: 08 August 1962
• Docket Number: No. 19636,19737-19740.,19636
• Citation: 306 F.2d 222
• Parties: Robert F. KENNEDY, Attorney General of the United States, Appellant, v. Theron C. LYND, Registrar of Elections of Forrest County, Mississippi, Appellee. Robert F. KENNEDY, Attorney General of the United States, Appellant, v. Mrs. Mary K. BRYCE, Registrar of Voters of Bossier Parish, Louisiana, Appellee. Robert F. KENNEDY, Attorney General of the United States, Appellant, v. Mrs. Winnice J. P. CLEMENT, Registrar of Voters of Webster Parish, Louisiana, Appellee. Robert F. KENNEDY, Attorney General of the United States, Appellant, v. Sidney Wells PLATT, Registrar of Voters of Desoto Parish, Louisiana, Appellee. Robert F. KENNEDY, Attorney General of the United States, Appellant, v. U. Charles MITCHELL, Registrar of Voters of Caddo Parish, Louisiana, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

306 F.2d 222 (1962)

Robert F. KENNEDY, Attorney General of the United States, Appellant, v. Theron C. LYND, Registrar of Elections of Forrest County, Mississippi, Appellee.

Robert F. KENNEDY, Attorney General of the United States, Appellant, v. Mrs. Mary K. BRYCE, Registrar of Voters of Bossier Parish, Louisiana, Appellee.

Robert F. KENNEDY, Attorney General of the United States, Appellant, v. Mrs. Winnice J. P. CLEMENT, Registrar of Voters of Webster Parish, Louisiana, Appellee.

Robert F. KENNEDY, Attorney General of the United States, Appellant, v. Sidney Wells PLATT, Registrar of Voters of Desoto Parish, Louisiana, Appellee.

Robert F. KENNEDY, Attorney General of the United States, Appellant, v. U. Charles MITCHELL, Registrar of Voters of Caddo Parish, Louisiana, Appellee.

Nos. 19636, 19737-19740.

United States Court of Appeals Fifth Circuit.

July 11, 1962.

Rehearing Denied August 8, 1962.

COPYRIGHT MATERIAL OMITTED No. 19636:

Robert E. Hauberg, Asst. U. S. Atty., Jackson, Miss., Harold H. Greene, Atty., Dept. of Justice, Burke Marshall, Asst. Atty. Gen., Howard A. Glickstein, Atty., Dept. of Justice, Washington, D. C., for appellant.

Francis T. Zachary, M. M. Roberts, Hattiesburg, Miss., Dugas Shands, Peter M. Stockett, Jr., Edward L. Cates, Asst. Attys. Gen. of Mississippi, Jackson, Miss., Joe T. Patterson, Atty. Gen. of Mississippi, for appellee.

Nos. 19737-19740:

David Rubin, Atty., Dept. of Justice, Washington, D. C., Edward L. Shaheen, U. S. Atty., Shreveport, La., Burke Marshall, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., for appellant.

John A. Richardson, Shreveport, La., Harry J. Kron, Jr., Asst. Atty. Gen. of Louisiana, Baton Rouge, La., for appellee.

Before RIVES, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

These cases from two District Courts in two States raise in a number of different procedural ways the central question of the proper disposition of a Title III proceeding by the United States Attorney General for appropriate court orders to obtain "inspection, reproduction, and copying" of voter records. Public Law 86-449, Title III, §§ 301-306, May 1960, 42 U.S.C.A. § 1974.

A consideration of these two groups of cases from as many courts and states reflects a further common thread — a basic misconception by the respective trial Judges concerning a Title III proceeding. As this is a matter of recurring importance, we think it appropriate to make plain again that which we have tried so painstakingly to make plain before. That includes, without any reservations whatsoever, a reiteration of our prior decisions. These start with In re Dinkens v. Attorney General, 5 Cir., 1961, 285 F.2d 430, approving and adopting the opinion and decision of Judge Johnson in State of Alabama ex rel. Gallion v. Rogers, M.D.Ala., 1960, 187 F.Supp. 848; and the two subsequent decisions, Kennedy v. Bruce, 5 Cir., 1962, 298 F.2d 860; and United States v. Lynd, 5 Cir., 1962, 301 F.2d 818. A restatement of these principles will, we think, readily indicate the proper disposition of each of the individual cases.

At the outset we emphasize again that the filing of the application by the Attorney General is not the commencement of an ordinary, traditional civil action with all of its trappings. It is, however, comparable to the form of a traditional order to show cause, or to produce in aid of an order of an administrative agency. It certainly has the requisites of a "case or controversy" to satisfy the requirements of Article III of the Constitution. In re Summers, 1945, 325 U.S. 561, 65 S.Ct. 1307, 89 L. Ed. 1795; Aetna Life Ins. Co. of Hartford v. Haworth, 1937, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617. There are adversaries — the Attorney General seeking an order against the objecting State official as custodian. § 1974b. The dispute is real and present as the application seeks "appropriate process," § 1974d, in order "to compel the production" of records or papers demanded by the Attorney General in writing. § 1974b. That by its terms and operation, Title III narrowly circumscribes the issues upon which the Court is to act does not make the proceeding or that determination any less judicial. For "in passing upon the application to issue or not issue an order to produce the court exercises judicial judgment. It does not confer or withhold a favor." Tutun v. United States, 1926, 270 U.S. 568, 578, 46 S.Ct. 425, 427, 70 L.Ed. 738.

But this is not, we repeat, the ordinary civil action. It is a special statutory proceeding in which the courts play a limited, albeit vital, role. In words adopted as our own, we said that Title III provides "an effective means whereby preliminary investigations of registration practices can be made in order to determine whether or not such practices conform to constitutional principles." State of Alabama ex rel. Gallion v. Rogers, D.C., 187 F.Supp. 848, 853. Relying on the principles expounded in Hannah v. Larche, 1960, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307, we translated them effectively in specific terms of a Title III proceeding. "Here the function sought to be exercised by the Attorney General is — as in Hannah — purely investigative." State of Alabama ex rel. Gallion v. Rogers, D.C., 187 F.Supp. 848, 854.

Since it is a special statutory proceeding, it does not require pleadings which satisfy usual notions under the Federal Rules of Civil Procedure. All that is required is a simple statement by the Attorney General that after a § 1974b written demand for inspection of records and papers covered in § 1974, the person against whom an order for production is sought under § 1974d has failed or refused to make such papers "available for inspection, reproduction, and copying * * *."

There is no place for a motion for a bill of particulars or for a more definite statement under F.R.Civ.P. 12(e), 28 U.S.C.A. There is no place for any other procedural device or maneuver — either before or during any hearing of the application — to ascertain the factual support for, or the sufficiency of, the Attorney General's "statement of the basis and the purpose therefor" as set forth in the written demand. § 1974b. Thus with respect to the reasons why the Attorney General considers the records essential, there is no place, either as a part of pleadings, discovery, or trial, for interrogatories under F.R.Civ.P. 33, oral depositions of a party under F.R.Civ. P. 26(a), 30, production of documents under F.R.Civ.P. 34, or request for admissions as to facts or genuineness of documents or other things under F.R. Civ.P. 36, 37. The same is true as to the nature, kind or specification of the records and papers sought, the names, identities or addresses of persons thought to have received discriminatory treatment, whether favorable or adverse, and the like.

On the filing of this simple statement by the Attorney General, the Court is required to treat it as a summary proceeding. The Court, with expedition, should grant the relief sought or, if the respondent-custodian opposes the grant of such relief, the matter should be set down without delay for suitable hearing on the matters open for determination. These are, of course, severely limited. In the event of a genuine dispute thereon, it would be in order for the Court to determine whether the written demand has been made, § 1974b, or whether the custodians against whom orders are sought have been given reasonable notice of the pendency of the proceeding. On the other hand, the factual foundation for, or the sufficiency of, the Attorney General's "statement of the basis and the purpose" contained in the written demand, § 1974b, is not open to judicial review or ascertainment. Nor is the scope of the order to produce insofar as it concerns the nature of the records or papers. This is so because the papers and records subject to inspection and demand have been specifically identified by Congress. The Attorney General is entitled to have made available for his "inspection, reproduction and copying" in the custodian's office "any record or paper" which § 1974 requires "to be retained and preserved." The incorporated standard of § 1974 is sweeping. Every election officer is required to retain and preserve "* * * all records and papers which come into his possession relating to any application, registration, payment of poll tax, or other act requisite to voting" in the specified elections for federal offices.¹ If, after issuance of an order to produce, a genuine dispute subsequently arises as to whether or not any specified particular paper or record comes within this broad statutory classification of "all records and papers * * * relating to any * * * act requisite to voting," the Court would, of course, be open for its determination.

Likewise, there is no question for judicial determination as to how far back the records go. This, too, is fixed by the statute. In other words, Congress has determined what records are to be retained and subject to production. Since the statute specifies "all records and papers" in the officer's custody "relating to any application * * * or other act requisite to voting * * *," in such elections held within twenty-two months, the custodians' duty to retain and preserve and the Attorney General's right of inspection and copying extend as far back as the earliest date of any such record or paper which bears on the eligibility of any currently listed voter to vote in such election.² If after granting the order as to all such records back to the time of the earliest federal election within the 22-month period preceding the filing of the § 1974 application, any substantial question arises concerning the most remote date beyond that time, the court will be open to determine that issue on the basis of the statutory standard. But the cutoff date is in no way related to the identity or status of "the person having custody, possession, or control," § 1974b or the time at which any such person...