White v. State of Ala.

• Citation: 867 F. Supp. 1519
• Decision Date: 06 October 1994
• Docket Number: Civ. A. No. 94-T-94-N.
• Parties: Hoover WHITE, et al., Plaintiffs, Ralph E. Bradford, etc., Mark G. Montiel, et al., Plaintiffs-Intervenors, v. The STATE OF ALABAMA; and James Bennett in his official capacity as Secretary of State for the State of Alabama, Defendants, Christopher Boehm, Defendant-Intervenor, United States of America, Amicus Curiae.
• Court: U.S. District Court — Middle District of Alabama

867 F. Supp. 1519

Hoover WHITE, et al., Plaintiffs, Ralph E. Bradford, etc., Mark G. Montiel, et al., Plaintiffs-Intervenors, v. The STATE OF ALABAMA; and James Bennett in his official capacity as Secretary of State for the State of Alabama, Defendants, Christopher Boehm, Defendant-Intervenor, United States of America, Amicus Curiae.

Civ. A. No. 94-T-94-N.

United States District Court, M.D. Alabama, Northern Division.

October 6, 1994.

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Terry G. Davis, Terry G. Davis, P.C., Solomon S. Seay, Jr., Montgomery, AL, Samuel H. Heldman, Joe R. Whatley, Jr., Cooper, Mitch, Crawford, Kuydendall & Whatley, Birmingham, AL, for Hoover White, John A. Dillard, Glenn Moody.

Algert S. Agricola, Jr., Montgomery, AL, for Ralph E. Bradford, Sr.

James McGowin Williamson, Williamson & Williamson, Greenville, AL, for Christopher Boehm.

Albert L. Jordan, Wallace, Jordan, Ratliff, Byers & Brandt, Birmingham, AL, for Johnny Curry, Jack Williams, Mark G. Montiel.

Robert Marc Givhan, Asst. Atty. Gen., Donald V. Watkins, Donald V. Watkins, P.C., Montgomery, AL, Jonathan C. Rose, Jones, Day, Reavis & Pogue, Washington, DC, for State of Ala.

Robert Marc Givhan Asst. Atty. Gen., Montgomery, AL, Jonathan C. Rose, Jones, Day, Reavis & Pogue, Washington, DC, for James Bennett.

Steven H. Rosenbaum, James P. Turner, U.S. Dept. of Justice, Civ. Rights Div., Voting Section, Mark A. Posner, U.S. Dept. of Justice, Civ. Rights Div., Washington, DC, Kenneth E. Vines, Charles Redding Pitt, U.S. Atty., Montgomery, AL, Matthew G. Olsen, U.S. Dept. of Justice; Civ. Rights Div., Deval L. Patrick, U.S. Dept. of Justice, Civ. Rights Div., Sp. Litigation Section, Washington, DC, for U.S.

MEMORANDUM OPINION AND ORDER

MYRON H. THOMPSON, Chief Judge.

In this lawsuit, three African-American plaintiffs — Hoover White, John A. Dillard, and Glenn Moody — claim that the current at-large system of electing Alabama appellate judges violates § 2 and § 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. §§ 1973, 1973c (West 1994).¹ They name as defendants the State of Alabama and its Secretary of State. The plaintiffs invoke the jurisdiction of the court pursuant to 28 U.S.C.A. §§ 1331, 1343(3) (West 1993) and 42 U.S.C.A. § 1971(d) (West 1994). The plaintiffs represent all African-American electors and resident citizens in Alabama.

In settlement of this litigation, the plaintiffs and the defendants have submitted to the court a proposed final judgment for approval under Rule 23(e) of the Federal Rules of Civil Procedure.² For the reasons that follow, the court concludes that it should approve and adopt the proposed judgment.

I. A BRIEF OVERVIEW

The proposed final judgment provides for temporary relief that promises to afford to the black citizens of this state their right to an equal opportunity to participate in the political process and elect candidates of their choice to appellate judgeships. At the same time, the proposed judgment will serve two important and substantial state interests: first, it will preserve the state's at-large system of electing appellate judges; and, second, it will allow the 1994 elections and future elections for all existing appellate judgeships to proceed even though some of the judgeships were created without the required federal approval.

In broad terminology, the proposed judgment achieves these ends by modifying the already existing and frequently used procedure under which persons, and almost exclusively white persons, have been appointed by the governor to appellate judgeships and thereby have enjoyed the privilege and advantage of incumbency before having to stand for election. The proposed judgment extends to minority-preferred candidates — who are the candidates of choice for blacks but need not themselves be black — a special and expanded opportunity to enjoy this privilege and advantage before having to stand for election. Thus, under the proposed final judgment, the governor — based on recommendations from a special nominating committee, composed in a manner to attempt to reflect the interests of most African-American Alabamians — would appoint minority-preferred candidates to a limited number of appellate judgeships. These appointed judges would then, like all other judges, have to stand for the approval of the electorate at large. In order to make this expanded opportunity of incumbency realistically available to minority-preferred candidates within a reasonable period of time, the proposed judgment provides for an increase in the size of the courts of criminal and civil appeals. It also provides for a possible temporary increase in the size of the state supreme court.

The proposed final judgment is not without opposition. On the one side, there are those who claim, among other things, that modifying the at-large system is inadequate. Three plaintiff-intervenors, on behalf of all Alabama Republicans, and one African-American intervenor claim that the only appropriate relief would be to transform the state's scheme for electing appellate judges from an at-large system to single-member districts, in which each appellate judge or justice would represent only a geographic portion of the state and in which district lines would then be drawn according to the race of voters. According to these objectors, this single-member scheme would provide African-Americans a greater assurance of being able to elect candidates of their choice. On the other side, there are those who claim that the court should not modify the at-large system in any manner. Yet all the objectors must recognize that without the temporary relief now before the court, the 1994 elections would probably not be able to proceed for some of the appellate positions and, as a result, these positions would be removed from the electorate with the current incumbents holding over.

For the reasons given in this opinion, the court concludes, first, that the evidence supports a settlement of the plaintiffs' claims and, second, that the court should proceed cautiously at this time and adopt the relief suggested by the plaintiffs and the defendants. Their relief holds out a substantial promise of success and yet is minimally race-conscious and governmentally intrusive. This relief, like the relief for which the three Republican intervenors and the one African-American intervenor want to hold out, would afford a substantial promise to open up fully the state's political process to its African-American citizens; however, this relief, unlike the relief the intervenors want, would be only temporary, would preserve the state's at-large system, and would with certainty allow the 1994 elections to go forward for all appellate judgeships. The proposed settlement would also make only limited and necessary changes to state law and would not violate federal statutory or constitutional law.

It may be, as feared by some of the objectors, that the proposed judgment will not open up the political process. But, as is shown below, the proposed judgment — which has the express support of many prominent black political officials in the state and the implicit support of the overwhelming majority of black citizens in the state — does not foreclose the opportunity for the court to revisit, after a reasonable period of time, the question of the adequacy of relief.

Admittedly, some, but not all, judges appointed under the proposed judgment would enjoy incumbency for six years before having to go before the voters to retain their offices. However, this period of incumbency, while extended, is not greatly out of line with state practice, when that practice is viewed over the entire period in which blacks have allegedly been denied an equal opportunity to elect candidates of their choice. For example, within the last 30 years, one appellate judge served two successive appointive terms totalling almost four years and three other appellate judges served appointive terms of approximately two and a half years. Indeed, one of the objectors to the proposed settlement — a white Republican, who was first appointed to the trial bench and then appointed to the appellate bench — is now eligible for retirement benefits for his years on the appellate bench without ever having won election to a judicial seat. Moreover, as will be shown below, the evidence reflects that current racial barriers "`will not wither away of their own accord,'" United States v. Paradise, 480 U.S. 149, 163, 107 S.Ct. 1053, 1062, 94 L.Ed.2d 203 (1987) (plurality opinion) (quoting Paradise v. Prescott, 585 F.Supp. 72, 75 (M.D.Ala.1983)), and that, if these barriers are to be not only overcome but effectively eliminated over time, this extended period of incumbency is necessary, albeit only as part of a temporary measure.

It is also significant that, if the court were to reject the settlement and, as appears reasonably likely, elections could not proceed for a number of federally-unapproved appellate positions, the judges who occupy those positions could enjoy unelected incumbency for up to six years. For example, in the neighboring State of Georgia, it has been almost six years since many judgeships, for which the required federal approval had not been given, have been up for election. Brooks v. State Bd. of Elections, 848 F.Supp. 1548, 1551 (S.D.Ga.1994). The Georgia judiciary was recently described as "an overworked judiciary frozen in its current form." Id. at 1573. Therefore, with or without the proposed settlement, the State of Alabama will probably face judges with extended unelected incumbency. Indeed, it appears that one of the Alabama judges who might enjoy this extended incumbency in the absence of the settlement received his position by appointment. In order to avoid the situation in Georgia and in order to open up further the political process to Alabama's black citizens, ...