Stewart v. Waller

• Decision Date: 21 October 1975
• Docket Number: Civ. A. No. EC 73-42-S.
• Citation: 404 F. Supp. 206
• Parties: Mrs. Rosa STEWART et al., Plaintiffs, v. United States of America, Plaintiff-Intervenor, v. William L. WALLER, as Governor of the State of Mississippi, et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

404 F. Supp. 206

Mrs. Rosa STEWART et al., Plaintiffs, v. United States of America, Plaintiff-Intervenor, v. William L. WALLER, as Governor of the State of Mississippi, et al., Defendants.

Civ. A. No. EC 73-42-S.

United States District Court, N. D. Mississippi.

July 14, 1975.

As Amended October 21, 1975.

COPYRIGHT MATERIAL OMITTED

Herman Wilson, Jackson, Miss., Homer E. Moyer, Jr., Charles A. Miller, Washington, D. C., for plaintiffs.

Sidney Bixler, Dept. of Justice, Washington, D. C., H. M. Ray, U. S. Atty., Oxford, Miss., for plaintiff-intervenor.

William Allain, Asst. Atty. Gen., Heber Ladner, Jr., Jackson, Miss., Edward F. McDowell, Starkville, Miss., Robert T. Mills, Moss Point, Miss., Charles G. Perkins, Macon, Miss., Thomas J. Tubb, West Point, Miss., for defendants.

Before CLARK, Circuit Judge, and KEADY and SMITH, District Judges.

PER CURIAM:

This action is brought by eight black citizens and registered voters residing in four Mississippi municipalities on behalf of themselves and all black citizens and black municipal registered voters similarly situated to declare unconstitutional and enjoin the enforcement of Miss.Code Ann. § 21-3-7 (1972), a statute which plaintiffs assert requires at-large election of aldermen, councilmen or selectmen in all Mississippi municipalities operating under a form of city government other than the commission form.¹ Plaintiffs also seek to enjoin the practice or system of at-large election of aldermen, aside from the mandate of § 21-3-7. Federal jurisdiction is invoked under 28 U.S.C. § 1343 on claims asserted under 42 U.S.C. §§ 1981 and 1983 and the Fourteenth and Fifteenth Amendments. The named defendants are the Governor, Secretary of State, and State Attorney General, as well as the mayors, aldermen or councilmen and municipal election commissioners of the Cities of Macon, Moss Point, Starkville and West Point who are also sued as representatives of a defendant class of municipal officials of Mississippi cities having an aldermanic form of government.

Since the original complaint sought to restrain enforcement of a statute of apparent statewide application, a three-judge court, at plaintiffs' request, was convened pursuant to 28 U.S.C. § 2281. Subsequently, the United States was permitted to intervene on plaintiffs' behalf under the provisions of 42 U.S.C. § 2000h-2.² During the progress of the case the parties submitted several facevidentiary hearing. The court makes tual stipulations, affidavits, and other materials which obviated the need for the following determination on the merits, incorporating herein findings of fact and conclusions of law as required by Rule 52, F.R.Civ.P.

I. THE NATURE OF THE CONTROVERSY

Prior to 1962, aldermanic elections were conducted pursuant to a state statute, applicable to code charter municipalities only, which required cities having a population of over 10,000 to elect six aldermen by wards and one from the municipality at large. Under the same statute, municipalities having less than 10,000 residents could, in the discretion of the municipal authorities, choose to elect all five of their aldermen by at-large balloting or four by wards and one from the municipality at large.³

At the 1962 legislative session, however, the aldermanic election law was substantially altered. In place of the former statute there was substituted the present statute, § 21-3-7,⁴ which mandates at-large aldermanic elections for all posts in all municipalities, irrespective of population.⁵ The 1962 Act had immediate impact on twenty-six code charter municipalities which previously elected aldermen by wards, and not at-large.⁶

Plaintiffs contend that § 21-3-7 was conceived and adopted by the legislature as a purposeful device to invidiously discriminate against black voters in municipal elections by diluting black voting strength. Plaintiffs further maintain that regardless of legislative purpose, the system of at-large elections for all aldermanic posts mandated by § 21-3-7 operates unconstitutionally to dilute black voting strength by significantly reducing the possibility of black candidates winning election to such offices from predominantly black wards. Since black voting power in the predominantly black wards of any city was submerged into the overall voting population of the municipality by the 1962 statute, support for black candidates or candidates appealing to black voters was, plaintiffs argue, thereby reduced to the extent that the municipality contained a lesser percentage of black voters than did the predominantly black wards under the previously existing ward system. Plaintiffs also claim that the additional expense of mounting citywide campaigns was intended by the legislature as a further barrier to full participation of blacks in the aldermanic election process. Finally, plaintiffs assert that, quite apart from § 21-3-7, the practice of at-large elections as a method of electing aldermen is unconstitutional per se since the system inherently dilutes black voting power. Defendants stoutly contest the validity of each contention advanced by plaintiffs.

II. CLASS ACTION ISSUES

Before addressing the merits of the controversy, the court must first determine, in conformity with Rule 23, F.R. Civ.P., whether the suit may properly proceed as a class action, and, if so, establish the members of the affected classes. As previously noted, the named private plaintiffs seek to maintain the action not only on behalf of a plaintiff class of municipal residents, but also against a defendant class of municipal officers.

The named plaintiffs⁷ are black citizens who are registered voters and reside in election wards having a majority of black voters in four municipalities that operate with an aldermanic form of government. They seek to represent a plaintiff class composed of all black citizens, including all present and potentially eligible voters and all present and potential black candidates for the office of alderman, residing in the State's 265 municipalities having an aldermanic form of government.

Suits to vindicate voting rights of black citizens charging racial discrimination under the Constitution and federal statutes have frequently been allowed as class actions. Particularly where the alleged discriminatory practices have statewide application, plaintiffs in such actions have been granted Rule 23 class status. See, e. g., Hamer v. Campbell, 358 F.2d 215, 221 (5 Cir. 1966); Smith v. Paris, 257 F.Supp. 901 (M.D.Ala. 1966); Hadnott v. Amos, 295 F.Supp. 1003 (M.D.Ala.1968), rev'd on other grounds, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1968). The instant case presents no exception, for blacks comprise 37.2% of the State's population of 2,216,912 according to the 1970 official census. Indeed, defendants do not seriously challenge the appropriateness of the suit as a class action but only the definition to be accorded both the plaintiff and defendant classes.

First, with respect to the proposed plaintiff class, the named plaintiffs purport to represent a class of black citizens composed of residents in all of the State's municipalities having an aldermanic form of government (other than the commission form), who are registered voters or potentially eligible voters in such cities, including all present and potential black candidates for the office of alderman. It should be reiterated that plaintiffs assert that § 21-3-7 is unconstitutional, both facially and as applied, and cannot be relied upon by any municipality; moreover, plaintiffs contend that, apart from § 21-3-7 and any reliance thereon, the system of at-large elections in all of the State's cities having an aldermanic form of government is, per se, constitutionally invalid. Private plaintiffs seek also to define the defendant class as the mayors, aldermen and election commissioners of all municipalities, whether of code charter or private charter origin, which have aldermanic form of government. Defendants, resisting certification of such broad classes, argue instead that the plaintiff class be limited to black voters and black candidates of those municipalities having at least one ward with a majority of black voters, and which cities were expressly subject to § 21-3-7 and which after the passage of that Act in 1962 changed their method of choosing aldermen by electing all at large. Defendants urge that the defendant class should be accordingly defined as the municipal officers of all code charter municipalities having at least one ward of predominantly black voters, and which after the passage of § 21-3-7 adopted the procedure of electing all aldermen by at-large balloting. The defendants thus contend that there should be excluded from the class not only those code charter municipalities which did not change their method of electing aldermen upon the passage of § 21-3-7 but also all private charter municipalities since they assertedly are not within the purview of § 21-3-7.

Defendants' argument regarding the scope of plaintiff and defendant classes misses the mark. A delimitation of the magnitude suggested by defendants would ignore the second contention attacking the concept of at-large elections as racially discriminatory per se and instead treat the case as solely a challenge to § 21-3-7 on the assumption that it may pertain only to certain code charter municipalities. The broader classes proposed by plaintiffs frame this action in its proper dimensions and, if Rule 23 prerequisites are met, will be adopted by this court.

As the proposed plaintiff class is framed by the private plaintiffs, Rule 23 standards are clearly met. The requisite numerosity, typicality and commonality are clearly present and, indisputably, the representative private plaintiffs, as well as the United States, plaintiff-intervenor, will adequately represent the interests of members of the class. Further, as an action founded on allegations of racial discrimination, the case for the...