Sheffield v. Itawamba County Board of Supervisors, 30452.

• Decision Date: 19 February 1971
• Docket Number: No. 30452.,30452.
• Citation: 439 F.2d 35
• Parties: Joe SHEFFIELD et al., Plaintiffs-Appellants, v. ITAWAMBA COUNTY BOARD OF SUPERVISORS et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

439 F.2d 35 (1971)

Joe SHEFFIELD et al., Plaintiffs-Appellants, v. ITAWAMBA COUNTY BOARD OF SUPERVISORS et al., Defendants-Appellees.

No. 30452.

United States Court of Appeals, Fifth Circuit.

February 19, 1971.

T. Victor Bishop, Fulton, Miss., for plaintiffs-appellants.

Euple Dozier, Fulton, Miss., for defendants-appellees.

John N. Mitchell, Atty. Gen., Jerris Leonard, Asst. Atty. Gen., David L. Norman, Deputy Asst. Atty. Gen., Richard W. Bourne, Atty., U. S. Dept. of Justice, Washington, D. C., for the United States as amicus curiae.

A. F. Summer, Atty. Gen., William A. Allain, James E. Rankin, Asst. Attys. Gen., Jackson, Miss., for the State of Mississippi as amicus curiae.

Before GODBOLD, CLARK and INGRAHAM, Circuit Judges.

PER CURIAM:

The plaintiffs below, citizens of Itawamba County, Mississippi, appeal from an order of the district court denying their motion to dismiss this class action litigation and enjoining the present members of the Board of Supervisors to divide Itawamba County into five districts with practically equal population. For the reasons hereinafter stated, we affirm and remand.

In a memorandum opinion appended hereto, the district judge detailed the history of this litigation and the grounds for his ruling, making it unnecessary to summarize or repeat them here.

This appeal is in an unusual posture. The appealing plaintiffs have been awarded the very relief they originally prayed for — a court order requiring the Board of Supervisors of Itawamba County to redistrict the county in conformity with legal standards. The appeal is provoked because plaintiffs now prefer that the order require the county to hold elections for the various supervisors' posts on a basis whereby candidates from each presently composed district would run in a county-wide election. However, having instituted a public lawsuit to secure rectification for a constitutional wrong of wide dimension, they cannot privately determine its destiny. The motion to dismiss the class action was addressed to the sound discretion of the district court. Fed.R. Civ.P. 23(e), J. Moore, 3B Moore's Federal Practice (2d ed.) ¶ 23.804. We find no abuse in the exercise of his discretion to refuse the right of dismissal. Cf. Jenkins v. United Gas Corp., 400 F. 2d 28 (5th Cir. 1968).

Indeed, had the court failed to retain jurisdiction of the present action, the only means of securing the constitutional rights of the class of under-represented citizens of Itawamba County in the selection of members of its Board of Supervisors, as declared in Avery v. Midland County, Texas, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), would have depended either upon unanimous action to redistrict itself by the present Board of Supervisors or, in the absence of unanimity, upon the outcome of a petition and election process which governed changes or alterations in supervisors districts of counties in the State of Mississippi as of November 1, 1964 under Miss.Code Ann. § 2870 Ch. 180, Laws of 1956.¹ This is so because in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), the Court held that the post-1964 amendments to Section 2870, noted above (n. 1), could not be given effect by State authorities pending compliance with the prior approval provisos of Section 5 of the Voting Rights Act of 1965, 42 U.S. C.A. § 1973c (1970), and no such approval of these amendments has been granted. See also Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971) and Dyer v. Love, 307 F.Supp. 974 (N.D. Miss.1969).

Since this case must be remanded for further proceedings consistent with the district court's opinion here affirmed, we deem it appropriate to make further comment on a matter that could become pertinent before finalization of the proceedings in this cause. While a Mississippi board of supervisors is disabled by federal law from using the post-1964 statutory scheme of at-large elections, such legislation does not impair the broad equity powers of a federal chancellor to protect and effectuate fundamental constitutional rights.

Of course, his mandamus to obey the Fourteenth Amendment cannot ignore the strictures of the Fifteenth or the Nineteenth. However, where other constitutional factors are neutral,² he possesses the discretion to require the use of such a device in lieu of or as an alternative to forced proportional redistricting in order to achieve compliance with the one-man, one-vote constitutional command. Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967); Taylor v. Monroe County Bd. of Supervisors, 394 F.2d 333 (5th Cir. 1968); Goldblatt v. City of Dallas, 414 F.2d 774 (5th Cir. 1969).

Although the operation of the Mississippi statute authorizing at-large elections as an alternative has been suspended, it is not void. Therefore, should the chancellor determine to utilize such a remedy, either directly or as an alternative, that exercise of his discretion would not constitute any greater departure from the present valid though unenforceable provisions of State law, than would an edict requiring redistricting without the prerequisite unanimity or petition and election which were required by Mississippi's pre-1964 law. Cf. Reynolds v. Sims, supra, 377 U.S. at 584, 84 S.Ct. 1362, and Forty-Fourth Gneral Assembly of Colorado v. Lucas, 379 U.S. 693, 85 S.Ct. 715, 13 L.Ed.2d 699 (1965).

Affirmed and remanded.

APPENDIX

Joe Sheffield, et al Plaintiffs versus No. EC 6745-S Luke Robinson, et al Defendants

MEMORANDUM OPINION

This action was initiated by a complaint filed June 23, 1967, which sought an order of the Court requiring the defendant Board of Supervisors of Itawamba County, Mississippi to redistrict itself in such manner as to provide districts of equal population.

The Court, acting through the late Honorable Claude F. Clayton, United States Circuit Judge, sitting by special designation as District Judge on December 29, 1967, entered an order staying further proceedings herein until the Supreme Court of the United States decided the case of Avery v. Midland County, Texas, 1968, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45.

The Supreme Court decided the case of Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L.Ed.2d 506, June 15, 1964. Reynolds extended the one man-one vote rule to State Legislatures. Avery v. Midland County, Texas, supra, involved the question of whether the rule should be extended to County Boards, such as the Board of Supervisors of Itawamba County.

After the rendition by the Supreme Court of the decision in Avery, which extended the rule aforesaid to County Boards, this Court entered an order on November 6, 1968, extending to defendants the choice of adopting the at-large election system or redistricting itself into districts substantially equal in population.

Defendants selected the at-large election system, and the Court on December 23, 1968, entered an order approving the Board's selection, but retained jurisdiction of the action until the United States Supreme Court should render a decision on the validity or non-validity of the 1966 amendment to Section 2870, Mississippi Code, 1942, Annotated, Recompiled in Allen v. State Board of Elections, 1969, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1. Allen was pending at that time awaiting a decision in the Supreme Court.

The Supreme Court decided Allen, supra, on March 3, 1969. The Court held that the 1966 amendment to the Mississippi Statute, aforesaid, could not be effective until it had been approved by the Attorney General of the United States or until the State secured a declaratory judgment in the United States District Court for the District of Columbia that the amendment to the statute did not have the purpose or effect of denying or abriding the right to vote on account of race or color. These requirements are a part of the Voting Rights Act of 1965 (42 U.S.C. § 1973 et seq.) The State of Mississippi has never met the requirements of the Allen decision.

The Court had occasion to consider the question of at-large elections for members of the Board of Supervisors in Mississippi in the Washington County case. Dyer v. Love, 307 F.Supp. 974.

After due consideration of the question the court said in Dyer:

"Thus, the 1966 and 1968 amendments to § 2870 may not be implemented and are not presently in force. The defendants, as members of the board of supervisors of the county, do not have statutory power or authority to provide for or order at-large elections of its members."¹

The court also held in Dyer that:

"Mississippi law invests boards of supervisors with the authority to change or alter the districts of the county. § 2870 Mississippi Code, 1942, Annotated.

It is the opinion of the Court that defendant board should be required to change and/or alter the districts of the county, in such manner as will provide equality of population among the districts as of the present time."²

After the decision of the Supreme Court in Allen and the decision of this Court in Dyer, an order was entered herein on January 2, 1970 requiring defendants to show cause, if any they could, why they should not be required to redistrict the county into districts of substantially equal population.

In response to the show cause order, defendants tendered to the Court a responsive pleading, to which was attached a copy of a resolution adopted by the board, providing that a request be made to the Court to permit the board to adopt the at-large election system.

At the same time plaintiffs presented a motion to the Court seeking a stay of one year in the action. Plaintiffs' motion made reference to the above mentioned resolution of the board and noted their acquiescence in the proposal. The delay was requested in order to afford defendants time within which to submit the at-large election system plan to the Attorney General of the United States. Pl...