Waddy v. Davis, 30305.

• Decision Date: 28 June 1971
• Docket Number: No. 30305.,30305.
• Citation: 445 F.2d 1
• Parties: Jacob WADDY, Virginia Rea Waddy, etc., et al., Plaintiffs-Appellants, v. N. J. DAVIS, Chairman of the Board of Registrars of Perry County, Alabama, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

445 F.2d 1 (1971)

Jacob WADDY, Virginia Rea Waddy, etc., et al., Plaintiffs-Appellants, v. N. J. DAVIS, Chairman of the Board of Registrars of Perry County, Alabama, et al., Defendants-Appellees.

No. 30305.

United States Court of Appeals, Fifth Circuit.

June 28, 1971.

George C. Longshore, Cooper, Mitch & Crawford, Birmingham, Ala., for plaintiffs-appellants.

MacDonald Gallion, Atty. Gen. of Alabama, Leslie Hall, Asst. Atty. Gen., Montgomery, Ala., W. B. Arbuthnot, Marion, Ala., for defendants-appellees.

Before CLARK, Associate Justice,^* and GEWIN and RONEY, Circuit Judges.

RONEY, Circuit Judge:

This is a class action brought under the provisions of 42 U.S.C.A. § 1983, by Negro citizens of Perry County, Alabama, against the members of the Board of Registrars. The complaint alleges that the plaintiffs were registered voters who met all of the valid requirements of eligible voters and that they were wrongfully removed from the voting list following their plea of guilty of receiving unemployment compensation benefits by reason of misrepresentations.¹ It was further alleged that at the time of the plea the plaintiffs were not represented by counsel and that they were not advised that as a consequence of pleading guilty they would be removed from the voting list.² The plaintiffs asked that their voting rights be restored.

The District Court granted the defendants' motion to dismiss stating simply that "it is directed by the court that attacks against pleas should be raised in each of the cases in the criminal proceedings." We affirm.

In order to pinpoint the thrust of plaintiffs' complaint, it is well to understand the directions it does not take.

Plaintiffs do not directly attack their guilty pleas, apparently conceding that any direct attack to set aside the convictions would have to be commenced in state court. 28 U.S.C. § 2254; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L. Ed.2d 837 (1963); Code of Alabama, Title 15 § 383 (1958); Allen v. State, 42 Ala.App. 9, 150 So.2d 399 (1963).

Nor do they question on this appeal that the crime to which they pleaded guilty is one which disqualifies them from voting under Alabama law. It has been determined in a prior unappealed case that the offense for which plaintiffs were convicted is a crime involving "moral turpitude." Jacob Waddy, et al. v. N. J. Davis, et al., Civil Action No. 5283-68 (S.D.Ala., October 18, 1969).

Plaintiffs do not here contest the principle that the privilege of voting in a state is within the jurisdiction of the state itself, to be exercised as the state may direct and upon such terms as to it may seem proper, provided no discrimination is made between individuals in violation of the United States Constitution. Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817 (1904); Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890); Lassiter v. Northhampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). The denial of the voting franchise to convicted criminals raises no substantial constitutional question. Green v. Board of Elections of the City of New York, 380 F.2d 445 (2d Cir. 1967).

No due process attack is made upon the procedure by which the Board of Registrars removed plaintiffs from the voting list, notice having been given and an opportunity for hearing afforded.³

Nor does the complaint allege any facts which would indicate that the Alabama law is not evenly applied to all races.

Plaintiffs would simply have the court remove an indirect or collateral consequence of their convictions. They reason that a guilty plea amounts to a waiver of the right to vote, and that such a waiver cannot be made unless the accused is advised that this will be the consequence of his guilty plea.

The plaintiffs fail to appreciate that the loss of franchise is a result of the conviction, not the plea. A guilty plea acts as a waiver of non-jurisdictional defects in the prior proceedings against an accused. Askew v. Alabama, 398 F.2d 825 (5th Cir. 1968); Lantz v. United States, 417 F.2d 329 (5th Cir. 1969). We have neither found nor been cited to any authority for the proposition that the collateral results of a conviction can be erased on the ground that the conviction was based on a guilty plea and the pleader was not informed that such results would follow. Our acceptance of plaintiffs' novel theory would lead to the anomalous result that the plaintiffs who plead guilty would be restored to the voting list, while anyone convicted of the same charge after a plea of not guilty would remain disenfranchised.

We need not decide whether or not the failure to inform a criminal defendant of the effect of the conviction on his voting rights offers any ground for withdrawing the guilty plea. Certainly if the plea were withdrawn the prosecution could proceed on the plea of not...