Sims v. Amos

• Decision Date: 03 January 1972
• Docket Number: 3017-N and 3459-N.,Civ. A. No. 1744-N
• Citation: 336 F. Supp. 924
• Parties: M. O. SIMS et al., Plaintiffs, R. E. Farr et al., Intervening Plaintiffs, United States of America, Plaintiff and Amicus Curiae, v. Mabel AMOS, Secretary of State of the State of Alabama, et al., Defendants, Pierre Pelham et al., Intervening Defendants. E. D. NIXON et al., Plaintiffs, Alabama Independent Democratic Party, a corporation, Plaintiff-Intervenor, v. George C. WALLACE, as Governor of the State of Alabama, et al., Defendants, Pierre Pelham et al., Intervening Defendants. J. Elbert PETERS, individually, for himself, and for all others similarly situated, Plaintiff, v. George C. WALLACE, as Governor of the State of Alabama, et al., Defendants, Pierre Pelham et al., Intervening Defendants.
• Court: U.S. District Court — Middle District of Alabama

336 F. Supp. 924

M. O. SIMS et al., Plaintiffs, R. E. Farr et al., Intervening Plaintiffs, United States of America, Plaintiff and Amicus Curiae, v. Mabel AMOS, Secretary of State of the State of Alabama, et al., Defendants, Pierre Pelham et al., Intervening Defendants.

E. D. NIXON et al., Plaintiffs, Alabama Independent Democratic Party, a corporation, Plaintiff-Intervenor, v. George C. WALLACE, as Governor of the State of Alabama, et al., Defendants, Pierre Pelham et al., Intervening Defendants.

J. Elbert PETERS, individually, for himself, and for all others similarly situated, Plaintiff, v. George C. WALLACE, as Governor of the State of Alabama, et al., Defendants, Pierre Pelham et al., Intervening Defendants.

Civ. A. Nos. 1744-N, 3017-N and 3459-N.

United States District Court, M. D. Alabama, N. D.

January 3, 1972.

COPYRIGHT MATERIAL OMITTED

Morris Dees, Jr. and Joseph J. Levin, Jr., Montgomery, Ala., Charles Morgan, Jr., Morris Brown and Norman Siegel, Atlanta, Ga., for M. O. Sims, and others.

Ira DeMent, U. S. Atty., M. D. Ala., Montgomery, Ala., for the United States.

William J. Baxley, Atty. Gen., State of Ala., Gordon Madison, Asst. Atty. Gen., Montgomery, Ala., and Julian D. Butler, Butler & Potter, Huntsville, Ala., Sp. Asst. Atty. Gen., for George C. Wallace, Mabel Amos and William J. Baxley.

James H. Hancock, Balch, Bingham, Baker, Hawthorne & Williams, Birmingham, Ala., for J. Richard Bennett, Jr., and Carolyn Golden.

Jack Crenshaw and B. M. Waller, Crenshaw & Waller, Montgomery, Ala., for Pierre Pelham and others.

James W. Garrett, Rushton, Stakely, Johnston & Garrett, Montgomery, Ala., for L. D. Owen, Jr., and others.

William L. Irons, Speir & Irons, Birmingham, Ala., for Jefferson County Citizens Committee for Local Self-Government, its corporate officers and members.

Maurice Bishop, Bishop & Carlton, Birmingham, Ala., for Jefferson County, Ala.

Morris Dees, Jr. and Joseph J. Levin, Jr., Montgomery, Ala., Orzell Billingsley, Jr., Peter A. Hall, C. H. Erskine Smith, Birmingham, Ala., for E. D. Nixon, and others.

David Vann, Birmingham, Ala., for Ala. Independent Democratic Party, a corporation.

Robert S. Vance, Birmingham, Ala., pro se and for the Democratic Party and State Executive Committee.

Dieter J. Schrader, Huntsville, Ala., for J. Elbert Peters, etc.

Before RIVES, Circuit Judge, and THOMAS and JOHNSON, District Judges.

PER CURIAM:

This litigation consists of three consolidated cases, each presenting the same or similar questions of law and fact. In each case the plaintiffs¹ as citizens of the United States and of the State of Alabama, and as duly qualified and registered voters in Alabama and in various counties thereof, jointly and severally bring this action in their own behalf and in behalf of all other voters in Alabama who plaintiffs claim are denied the right of free and equal suffrage and of equal protection of the laws.²

In all three cases, the defendant Mabel Amos is sued in her capacity as Alabama's Secretary of State and as a State constitutional officer charged by law with certain duties and responsibilities in connection with the election of members of the Alabama Legislature. In Sims and Nixon, William J. Baxley is sued as Alabama's Attorney General, in which capacity he also is charged with performing certain functions in relation to the nomination and election of members of the Alabama Legislature; and in Nixon and Peters, George C. Wallace is sued as Governor of Alabama, the State officer charged with enforcing the Constitution and laws of the State. In Nixon, the Democratic Party of Alabama is a named defendant, while in Sims other defendants are named as follows: Defendants Harrell Hammonds, Perry O. Hooper, Paul J. Meeks, B. A. Reynolds and Annette Bozeman are the duly elected, qualified and acting probate judges of Lowndes, Montgomery, Jefferson, Dallas and Marion Counties, respectively. They are sued as State constitutional officers and also as representatives of all probate judges in Alabama, who are charged with performing and exercising certain duties and powers with regard to the nomination and election of members of the Alabama Legislature. Defendant J. Richard Bennett, Jr., is the Chairman of the Alabama State Republican Executive Committee, and defendant Robert S. Vance is the Chairman of the Alabama State Democratic Executive Committee. Each is made a defendant in his official capacity as Chairman of the Executive Committee of his political party because, in such capacity, he is charged by law with performing certain duties in connection with the selection, nomination and election of members of the Alabama Legislature. Defendant Carolyn Golden is the Secretary of the Alabama State Republican Executive Committee and defendant H. G. Rains is the Secretary of the Alabama State Democratic Executive Committee. Each is sued as an officer of his political party because, in that position, each is charged by law with certain functions in connection with the selection, nomination and election of the Alabama legislators.

In bringing these actions, plaintiffs contend that the present Alabama Legislature is malapportioned and that, as a result, their voting strength is minimized or diluted, they are underrepresented in the State Legislature and they are denied the right to equal suffrage in contravention of the Fourteenth and Fifteenth Amendments to the United States Constitution and of Sections 198, 199, 200, and 284 of the Constitution of Alabama (1901).³ Plaintiffs seek to have Alabama's present apportionment scheme declared unconstitutional and the State statutes and federal court decision upon which it is based declared null and void and of no effect.⁴ Plaintiffs urge that this Court adopt their proposed reapportionment plan and, thereby, reapportion the Alabama Legislature on the basis of state-wide single-member legislative districts, impartially selected, without regard to the racial or economic conditions of the district. Plaintiffs further ask that following this Court's adoption of a reapportionment plan, an election to effectuate such plan be held mid-term, that is, before the expiration of the four-year terms to which the members of the present Alabama Legislature were elected.

In response to the complaints filed in this litigation, defendants concur in plaintiffs' assertion that the Alabama Legislature is malapportioned. Nevertheless, they contend that this Court should allow further time for the State Legislature to reapportion itself. Defendants also oppose the single-member district reapportionment plan advanced by plaintiffs, and advocate, as alternatives, multi-district plans which several of said defendants have proposed. In addition, defendants deny that there is any constitutional requirement that, following reapportionment, an election be held before the expiration of the State legislators' current four-year terms. They contend that to allow the legislators to serve their full terms is equitable, fair and legally permissible.

These actions have been brought under Title 42, Sections 1983⁵ and 1988,⁶ United States Code, to prevent the deprivation under color of state law of rights secured by the Constitution of the United States. Federal jurisdiction is properly grounded in Title 28, Section 1343(3).⁷

A threshold question in these cases is whether the pending cases are proper ones for three-judge court jurisdiction, or whether they are more appropriately one-judge cases. A three-judge court is required for the granting of "An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute. . . ." 28 U.S. C.A. § 2281. In the present litigation, plaintiffs clearly have invoked constitutional grounds in seeking to enjoin the operation of the Act of the Legislature which provides the current apportionment of the Alabama Senate and which was approved by this Court in Sims v. Baggett, 247 F.Supp. 96 (M.D.Ala.1965). Thus, a constitutional issue is presented. Nevertheless, a three-judge court is neither required nor proper when the constitutional question involved is insubstantial. See Swift & Co. v. Wickham, 382 U.S. 111, 186 S.Ct. 258, 15 L.Ed.2d 194 (1965); Alabama v. United States, 314 F.Supp. 1319 (S.D.Ala.1970). The issue of a state statute's constitutionality may be insubstantial because previous decisions upheld the statute or because United States Supreme Court decisions obviously establish its invalidity. See Kirkland v. Wallace, 403 F.2d 413 (5th Cir. 1968).

Although prior decisions admittedly have rendered the substantiality of the constitutional issues involved here questionable, this Court feels that a three-judge court is still required for the following reasons. First, in Sims v. Baggett, this three-judge court expressly retained jurisdiction of all the matters now pending, and the latest complaint in the present litigation was filed seeking further relief in that case. In addition, when Nixon was filed in 1970, the same three judges were designated to sit on that case. More significantly, the complaint in that suit sought to enjoin the operation not only of a State statute but also of a provision of the Constitution of Alabama. The question involved, therefore, seems substantial.

Should this Court's decision to proceed as three judges prove incorrect, however, the judgment rendered here still will be valid as all three judges concur in the result. See Browder v. Gayle, 142 F. Supp. 707 (M.D.Ala.1956).

Jurisdictional matters having been settled, these causes proceeded to a hearing at which the parties presented evidence, both oral and documentary. The cases now are submitted upon the pleadings, the evidence, including several proposed reapportionment plans, and upon the briefs and arguments of the parties.

I.

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