Murphree v. Winter, Civ. A. No. J83-0644(B).

• Decision Date: 12 June 1984
• Docket Number: Civ. A. No. J83-0644(B).
• Parties: Michael W. MURPHREE, Sr., Individually and on behalf of all other similarly situated v. William WINTER, Ed Pittman, and Bill Allain as Members of the State Board of Election Commissioners, et al.
• Court: U.S. District Court — Southern District of Mississippi

589 F. Supp. 374

Michael W. MURPHREE, Sr., Individually and on behalf of all other similarly situated v. William WINTER, Ed Pittman, and Bill Allain as Members of the State Board of Election Commissioners, et al.

Civ. A. No. J83-0644(B).

United States District Court, S.D. Mississippi, Jackson Division.

June 12, 1984.

COPYRIGHT MATERIAL OMITTED

Shirley Payne, Jackson, Miss., for plaintiff.

Carl John Hedglin, William S. Boyd, III, W.V. Westbrook, Sp. Asst. Attys. Gen., David W. Clark and Natie P. Caraway, Jackson, Miss., for defendants.

ORDER AND MEMORANDUM OPINION

BARBOUR, District Judge.

On June 27, 1983, the Plaintiff, Michael W. Murphree, Sr. was arrested on an aggravated assault charge. Since he was unable to post bond, he remained incarcerated in the Jackson City Jail until his release on August 22, 1983. During this time, the primary elections for certain state offices in Mississippi were held. The first primary was held on August 2, 1983. Murphree wanted to vote in the August 2 primary; however, he was still incarcerated. It is undisputed that he asked an official at the jail, Officer Jackson, if he would be allowed to vote. (Affidavit of Michael Murphree). Officer Jackson informed the Plaintiff "there was no way an inmate could vote. There were no provisions made for any prisoner of any status to obtain access to a ballot." (Affidavit of Michael Murphree). The Plaintiff then called his wife and asked her to find out if there was any way he could vote.

According to the Affidavit of Jan Lewis, the Director of the American Civil Liberties Union of Mississippi, which Affidavit is undisputed, Mrs. Murphree called her on Tuesday, August 2, 1983, and explained the Plaintiff's situation. Mrs. Murphree told Lewis that her husband wished to vote that day in the primary election.

Jan Lewis then called the Hinds County Election Commission Board. It immediately referred her to the Hinds County Circuit Clerk's Office and William McKinley, the Circuit Clerk and Registrar. According to Jan Lewis' Affidavit:

The woman who answered the phone stated that the office had received a similar inquiry from another prisoner's wife but she did not know what was being done; she referred me to Mr. McKinley. McKinley expressed concern but stated that because there was no absentee ballot provision detainees would have to go to the polls to vote. He doubted that a deputy would take them to the polls. McKinley suggested that we (ACLU) would need to get some legislation passed to resolve the dilemma.

Mrs. Lewis then contacted City and County officials who refused to release Mr. Murphree, even temporarily, so he could vote.

On August 18, 1983, the Plaintiff filed the Complaint in this law suit seeking declaratory and injunctive relief, a Motion for class certification and a Motion for a temporary restraining order:

suspending and restraining the operation, enforcement or execution of Section 23-9-601, Miss.Code Ann. (1972) and the custom and practice of defendants, as set forth in the complaint ... in so far as said law, custom and usage denies to the plaintiff the right to vote, pending the hearing upon the issuance of a preliminary injunction, so that the named plaintiff, Michael W. Murphree, Sr., shall be afforded an opportunity to vote in the August 23, 1983, primary election.

The relevant provision of the Mississippi Absentee Voter Law at issue provides:

For the purpose of this article, any duly qualified elector may vote as provided in this article if he be one who falls within the following categories:

(1) Any qualified elector who is a bona fide student, teacher or administrator at any college, university, junior college, high, junior high, or elementary grade school whose studies or employment at such institution necessitates his absence from the county of his voting residence on the date of any primary, general or special election, or the spouse and dependents of said student, teacher or administrator if such spouse or dependent(s) maintain a common domicile, outside of the county of his voting residence, with such student, teacher or administrator.

(2) Any qualified elector who is an actual driver, operator or crewman employed and actually engaged in transportation service of a duly authorized common carrier in interstate commerce and whose employment with such carrier necessitates his absence from the county of his voting residence at the time of any primary, general or special election, may vote at such election as provided in this article. For the purpose of this article, common carriers in interstate commerce shall be defined as trains, buses, trucks, airplanes, and seagoing ships and vessels.

(3) Any qualified elector who is required to be away from his place of residence on any election day due to this employment: (a) as personnel assigned to any offshore oil, gas or other mineral drilling rig in the Gulf of Mexico or adjacent waters, (b) as personnel serving aboard boats, barges, dredges, or other watercraft on inland waterways within the continental limits of the United States, (c) as personnel serving aboard commercial fishing vessels operating off the Mississippi Gulf Coast, (d) as an employee of a member of the Mississippi Congressional delegation and the spouse and dependents of such person if he or she shall be residing with such absentee voter away from the county of the spouse's voting residence, or (e) as an employee, businessman, professional, tradesman and other person actually engaged in any legal occupation whatsoever and whose employment or occupation necessitates his being over fifty (50) miles distant from the county of his voting residence at the time of any election, and the spouse and dependents of such person if he or she shall be residing with such absentee voter away from the county of the spouse's voting residence.

(4) Any person who is sick or physically unable to go to the polls on election day and vote in person.

(5) Any member of the Mississippi Congressional delegation absent from Mississippi on election day, and the spouse and dependents of such member of the congressional delegation. (Emphasis added).

Miss.Code Ann. § 23-9-603 (Supp.1983). The Motion was scheduled for hearing at 11:00 A.M. on August 22, 1983.

At the hearing on the Temporary Restraining Order the Defendants¹ advised the Court that the Plaintiff's bond had been reduced so that he could be released and thereby vote, thus mooting the T.R.O.

The Plaintiff filed a Motion for Preliminary Injunction on October 4, 1983. The State Defendants did not answer the Complaint until October 11, 1983, denying most of the allegations of the Complaint. The State Defendants also filed a Motion to Dismiss, or in the alternative for Summary Judgment on October 11, 1983.

DEFENDANT'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

The State and County Defendants filed Motions to Dismiss or alternatively, for Summary Judgment. Both Defendants assert that the Complaint fails to allege a case or controversy under Article III of the Constitution and that the Plaintiff lacks standing to maintain this action.

Article III of the Constitution limits the judicial power of the United States to the resolution of "cases" and "controversies". The United States Supreme Court has recently held:

At an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the Defendant," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979), and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976).

Valley Forge Christian College v. American United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).

Further, the Court held:

Beyond the constitutional requirements, the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing. Thus, this Court has held that "the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, at 499 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343.

454 U.S. at 474, 102 S.Ct. at 759.

In their briefs and during oral arguments, Defendants contend that Michael Murphree lacks standing to maintain this action. Particularly, the Defendants contend that the Plaintiff never made a formal written request for an absentee ballot as required by Mississippi Code Annotated, Section 23-9-605 (Supp.1983).

The underlying facts are not in dispute. Michael Murphree was a registered voter in Hinds County, Mississippi. He was arrested on June 27, on a charge of aggravated assault. Since he was unable to post bond, he remained incarcerated in the Jackson City Jail. He wished to vote in the state-wide election in August. His attorney, Jan Lewis, contacted William McKinley, Hinds County Circuit Clerk. Mr. McKinley advised Ms. Lewis that the Mississippi Absentee Ballot statute made no provision for pretrial detainees and consequently Mr. Murphree, as well as any other pretrial detainee, could not vote by absentee ballot in Mississippi. The State Defendants admitted in oral argument that this was the advise given by Mr. McKinley. They maintain, however, that Mr. Murphree cannot bring this claim because he failed to request from Mr. McKinley an absentee ballot in writing as required by the statute. The Plaintiff admits that he did not make a formal request in writing but asserts it would have been a waste of time. The Defendants do not maintain that Mr. McKinley would have allowed Michael Murphree to vote absentee if the requirements of Section 23-9-605 had been followed. While the...