Taylor v. Monroe County Board of Supervisors

• Decision Date: 14 January 1970
• Docket Number: No. 27713.,27713.
• Citation: 421 F.2d 1038
• Parties: McWhirter TAYLOR et al., Plaintiffs-Appellants, v. MONROE COUNTY BOARD OF SUPERVISORS et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

421 F.2d 1038 (1970)

McWhirter TAYLOR et al., Plaintiffs-Appellants, v. MONROE COUNTY BOARD OF SUPERVISORS et al., Defendants-Appellees.

No. 27713.

United States Court of Appeals, Fifth Circuit.

January 14, 1970.

Richard B. Booth, Aberdeen, Miss., for appellants.

Fred B. Smith, Ripley, Miss., Jack Norris Thomas, Amory, Miss., for appellees.

Before TUTTLE, WISDOM and GOLDBERG, Circuit Judges.

TUTTLE, Circuit Judge:

This appeal seeks an order of this court requiring the holding of a special election under newly created county supervisor districts to oust the present five supervisors and supplant them by those to be chosen under a one-man one-vote redistricting order by the trial court entered in April 1969. The terms of the members chosen under the old mal-apportioned districts, now outlawed, commenced in January, 1968, and expire in January, 1972 — some twenty-two months hence.

This case presents a difficult choice of equities, more difficult perhaps than it might have been if the appeal had been expedited and heard shortly after the adverse judgment of the trial court in April, 1969.¹

The suit was originally filed on June 23, 1967. It alleged an extreme case of malapportionment. Monroe County, Mississippi has five supervisors, constituting the Monroe County Board of Supervisors. The five were elected from five districts; one was elected from and by each district. Districts varied in population from 2,813 to 11,257. At the time of the first hearing, a three-judge district court had decided the Texas case, Avery v. Midland County, Texas, 430 S.W.2d 487, finding that the one-man one-vote principle applied to county governments of the kind enjoyed by the people of Monroe County; so, too, had the United States District Court in this Southern District of Mississippi in Martinolich v. Dean, 256 F.Supp. 612 (D.C. S.D.Miss., 1966). However, the then trial judge noted that the Supreme Court had granted a writ of certiorari in Midland County and he denied relief. This decision was based partially on the fact that the current election process had already been set in motion (all that had occurred was that the qualifying date for party primaries had expired). The election proceeded and the Supreme Court thereafter affirmed Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45. Thus, this court reversed the judgment of the trial court. In doing so, the court noted that the plaintiffs had not requested a reapportionment of districts — that they had, in fact, argued that no changes would be possible — but demanded election of all supervisors by vote of all voters of the county. Nevertheless, the court said:

"This leaves to the governing authorities of this County two options. They may reapportion the five districts so as to leave each of them with a population substantially equal to that of the others, or they may allow a supervisor to be chosen from each of the districts as presently constituted but by elections in which the voters of the entire county will participate, Dusch v. Davis, 387 U.S. 112, 87 S.Ct., 1554, 18 L.Ed. 656 (1967), cited with approval in Avery v. Midland * * *." 5 Cir. 1968, 394 F.2d 333.

The court remanded the case "for further proceedings expeditiously conducted consistently with the holdings of the Supreme Court and for appropriate relief grounded thereon."

Thereupon, plaintiffs filed a motion for "expeditious relief" by requiring the Board to decide whether to reapportion, and if it did so, to proceed to carry it out. The trial court allowed the Board until October 15 to notify the court of its decision and to propose the exact plan by January 1, later extended to February 1, 1969. The Board engaged a planning group to explore the possibilities and later accepted the recommended action that the districts could be realigned with uniform population (with a variance of only 74) and in all other respects, practicable. The plan submitted to the court described the new districts by metes and bounds and delineated them in large scale maps that took into account a complete head count. After a hearing, the court accepted this plan and ordered it into effect. The court further held:

"That at the next regular primary and general election in the State of Mississippi, supervisors and all other beat or district officers of Monroe County shall be elected from and in the five new districts, the boundaries of which are set forth in said order, and the board of Supervisors and other county officials of Monroe County, Mississippi, shall take all necessary statutory steps towards making the necessary change in the boundaries of the voting districts or precincts of said county and the places of holding elections therein, and relative to reregistration and new or revised poll books for said county, to the end that the next regular primary and general election in said county, to be held in the year 1971, may be properly and legally held and conducted. That the motion of the plaintiffs for an immediate election, prior to said regular primary and general election to be held in 1971, is hereby overruled, and that this order of redistricting shall not affect the existing term of office of any officials of said county."

Plaintiffs thereupon filed a motion asking the court to require a new election. They strongly urge that all the citizens of Monroe County are without constitutional government, because the supervisors were elected by an improper electorate; that the principle of law enunciated by the Supreme Court in Avery v. Midland County relates back to the time of the first decision of the late Judge Clayton; that therefore the election results of 1967 should be turned back with the clock under a principle which they call the "subjudice" rule. This rule has been stated thus: "A change in the law between a nisi prius and an appellate decision requires the appellate court to apply the changed law." Ziffrin, Inc. v. United States, 318 U.S. 73, 63 S.Ct. 465, 87 L.Ed. 626 (1943). Thus, they contend that the application of the law of Midland County requires that an interim special election must be held, because it must be taken that all parties have been operating under a kind of lis pendens knowing that if plaintiffs established their legal position the 1967 election would be held void.

The record before us does not contain any evidence touching upon the question of how involved is the procedure or how much time would be required for the defendant supervisors to arrange the voting precincts or wards within the new voting districts, nor how long it would take to separate the names on the present voters' list and place them on the precinct lists. The plaintiffs proceeded before the trial court as if they were entitled to a special election as a matter of right, regardless of the volume of time or operations necessary to bring this about. On the other hand, the defendants proceeded on the theory that the present supervisors had a right to fill out their terms, as a matter of law. They, and the trial court, stressed requirements of the Mississippi law, particularly that provision of § 2870 Miss.Code of 1942, which the trial court said "is a guide to our present problem." That provision was contained in an act which gives to the supervisors of any county the right to change district lines, under certain specified conditions. It then provides:

"This act shall not be construed to affect any supervisor now holding office until the expiration and end of his present term of office." (Emphasis added.)

The court said, "That would be very clearly the situation if the Monroe County Board of Supervisors had, without federal court litigation, redistricted this county. There is no valid reason why there should be any difference merely because there is an order of the federal court approving² the particular redistricting that the Board has seen fit to present."

This statement, with deference to the judgment of the trial court, is faulty in two respects. (1) By its literal language the provision applies only to supervisors "holding office now." "Now" was the year of passage of the Act — 1942. (2) While it is desirable, and almost mandatory for federal courts, when overriding state statutes and...