Petitioner's Motion for Summary Judgment

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IN THE UNITED STATES DISTRICT COURT
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FOR THE II{IDDLE DISTRICT OF ALABAMA
'L;i .l,i . .:

MONTGOIVIERY DTVI S I ON

JULIA P. WILDER,

ll e
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rF.- -X

: Civil Action No. 83-H-580-NPetit ioner,

against

EALON M. LAMBERT, JACK C. LUFKIN AND :
JOHN T. PORTER TN THEIR OFFICAL
CAPACITIES AS MEII{BERS OF THE ALABAMA 3

BOARD OF PARDONS AND PAROLES, AND
TED BUTLER, A PROBATION AND PAROLE :

oFFICER, EltPtoYED BY THE ALABAMA
BOARD OF PARDONS AND PAROLES, 3

Respondents.

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PETITIONER'S Ii{OTION FOR SUMIT'IARY JUDGIIENT

TO THE SAID HONORABLE COURT:

NOW COMES JULIA P. WILDER, petitioner, by and through

her attorneys and, pursuant to Rule 56 of the Federal Rules

of Civil Procedure, respectfully moves this Court to enter

summary judgment for petitioner on the constitutional

claims raised by paragraphs 17-21, 24 and 25 of her petition

for writ of habeas corpusr oll the ground that there is no

genuine issue as to any material fact concerning said con-

stitutional claims and the petitioner is entitled to judg-

ment on said constitutional claims as a mat,ter of Iaw.



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I.

This motion is based exclusively upon the claims raised in

paragraphs L7-2t, 24 and 25 of petitioner's habeas corPus Peti-

tion. For.the Court's convenience, those paragraPhs are repro-

duced below:
,17. The indictment charging petitioner with violating

S 17-23-1 was for each of the reasons sPecified in paras.
7g-Zt, infra, insufficient to inform petitioner of the
nature aiZ-Tause of the accusation against herr as required
by the Sixth and Fourteenth Amendments'

18. The indictnent against petitioner charges that
petit ioner:

!'COUNT ONE

'rdid vote more than once, or did deposit
more than one ballot for the same office
as her vote, or did vote il1egal1y'or fraud-
ulentIy, in the Democratic Primary Run-
off Election of SePtember 25, 1978 |

"COUNT TWO

ndid vote more than once as an absentee
vot,er t ot did deposit more than one absen-
tee ballot for the same office or offices as
her vote, or did cast illega1 or fraudulent
absentee baIlots, in the Democratic Pri-
mary Run-off Election of September 26,
1978 |

"COUNT THREE

xdid cast i1Iega1 or fraudulent absentee
ballots in the Democratic Primary Run-
off Election of September 26, 1 978, in
that she did deposit with the Pickens
County Circuit Clerk, absentee ballots
which were fraudulent and which she
knew to be fraudulent, against the peace
and dignity of t'he State of Alabama. "

19. The indictment was constitutionally insufficient
because it failed to provide notice of the charges submitted
to petitioner's jury as the basis for her conviction under
S 1?-23-1, The indictment accused petitioner of violating
s 17-23-1 by ',votIing] i11egally" or "cast Iing] i11ega1 ...

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absentee baIlotsr" but it failed to identify either the
acts constituting the alleged illegalities or the elements
of the statutes wfri.ctr purportedly caused those acts to be
i1IegaI. That failure deprived petitioner of constitution-
a1ly required notice.

(a) The trial judge instructed the jury on
four statutes, A1a. Code S 17-10-3 (1975) [miscited by the
judge as S 17-23-31, Tr. 308-309; A1a. Code S 17-10-5
ilgis) lmiscited by the judge as S 17-10-77, Tr. 309-310;
AIa. Code S 17-10-7 (1975) | Tr. 310-3'l 1; and Ala. Code S

13-5-115 (1glS), Tr. 311. None of these statutes or their
elements was charged against petitioner in the indictment.

(b) The jury was instructed that proof that
petitioner had committed any act "t9t authorized by o.. or
... contrary to, any 1aw would constitute an "iIIegaI' act
warranting petitioner's conviction under S 17-23-1. Tr.
308. The eifect of that instruction and of the subsequent
instructions on each of the statutes listed in para. 19(a)r
supra, was to make each of those statutes a separate ground
ffiiabilit,y under S 17-23-1. The indictment made no
allegations whatsoever that petitioner had violated
those statutes or had engaged in acts which would constitute
violations of those statutes.

(c) For these reasons the indictment failed to
provide notice of the offenses actually submitted to the
jrrry as required by the constitution, and petitioner's
iesutting conviction was obtained in violation of due
Process.

20. The indictment contained conclusionary allegations
of fraudulent conduct by petitioner, but it failed to
provide fair notice as required by the Constitution in that
it failed to give sufficient notice of the particulars of
the alleged fraud.

(a) The indictment alleged in Count I, in the
alternative with other allegations, that petitioner voted
fraudulently in the run-off. It a11eged, in the alternative
with other ltlegations in Count fI, that she cast fraudulent
absentee ballots in the run-off. In Count III, it alleged
that she deposited fraudulent absentee ballots with the
Pickens County Circuit Clerk, and that she knew the ballots
were fraudulent.

(b) In order to provide constitutionally requisite
notice, the inoictment was required to identify the particu-
lars of the allegeo fraud with sufficient specificit,y to
inform petitioner fairly of the actions or transactions
which constituced the alleged fraud with which she was
charged. It did not do Sor and its failure to make those
factual allegations deprived petitioner of the notice
demanded by the Sixth and Fourteenth Amendments.

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21. The indictment failed to a11ege accurately each
of the elements of S 17-23-1, and therefore failed to
provide the minirnum notice required by the Constitution.

(a) In this case, fraud is a necessary element
of s 17-23-1 under the rules of Alabama law set forth in
para. 16(a), supra.

(b) Counts one and two of the indictnent do not
allege that petitioner acted with frauoulent intent or
knowledge. They a11ege no mens rea of any sort.

(c) Since the verdict against petitioner was a
general verdict finding her "guilty as charged in the
Indictmeltr" Tr. 316, and since she was thereupon adjudged
guiity of one undifferentiated violation of S 17-23-1, the
aeficient counts prejudiced petitioner and rendered the
indictment as a whole insufficient under the Constitution.

24. If any of the constructions of s 17-23-1 mentioned
in paras. t6(a) and 23(d), supra, were valid and operative
at Lfre tirne of petitioner's-Eiial, the instructions to the
jury impermissibly broadened the statute so aS to create
ex post facto liability in violation of the Due Process
dlause-E-EEe Fourteenth Amendment as construed in Bouie
v. Citv of Columbia, 378 U.S. 347 (1963). The instructions
toffipermissib1ybroadeneds13-5-115causing,
under the same principles, a separate violat,ion of the Due
Process Clause.

(a) The jury instructions permitted various statutes
to be incorporltea into S 17-23-1, as described in para.
19(a) supra. They further permitted a conviction for
.iltegEl" voting without any showing of mental culpability,
as deicribed in para. 19(b), supra, and thus allowed
petitioner to be convicted on a strict liability basis for
lny transgression of any of the incorporated statutes. If S

17-23-1 $ras subject to limiting constructions at the time
of petitioner's trial, these jury instructions abrogated
the constructions retroactively in violation of Bouie.

(b) Section 13-5-115 penalizes the making of a sworn
statement required under the election laws "falsely and
corruptlytr -- i.€., with criminal intent. The trial court
instructed Lhejury that petitioner could be 1iab1e under S

13-5-115 for "falseIy and incorrectly" making a required
statement. By substituting "incorrectly" for "corruptlyr"
the instructions removed the intent element from S 13-5-115
and thus impermissibly expanded the reach of the statute in
violation of Bouie.

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25. Both S 17-23-1 and S 13-5-115 were presented
to the jury as strict liability offenses. ttr. 308, 311.
Therefore, as applied to petitioner, those statutes denieo
her due Processl- especially inasmuch as they touched on
rights protected by the Constitution. Petitioner's convic-
ti5n stinds in violation of the Fourteenth Amendment.rl

II.

The only facts material to this motion are contained in the

certified transcript of the trial proceedingsr submitted on

September 21, 1983 by respondents as Exhibit "J." AccordinglY,

there can be no dispute as to any of the facts relevant to t'his

motion.

WHEREFORE, PREIIISES CONSIDERED, pet,itioner Prays that this

Court grant summary judgment uPon the pleadings and uncontro-

verted evidence before the court, grant the petition for a writ

of habeas corpus and discharge petitioner from the unconstitu-

tional restraints of her conviction and the conditions of parole

imposed uPon her, and grant such other relief as may be aPpro-

priate.

Dated: JanuarY 18, 1984

639 Martha Street
MontgomeEY, Alabama 35108
262-7 337

JACK GREENBERG
LANI GUINIER

99 Budson Street, 15th Eloor
New York, New York 10013
(212) 219- 1 900

Attorneys for Petitioner

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Of Counsel:

Anthony G. Amsterdam
N.Y.U. Schoo1 of Law
40 t{ashington Square South
Room 327
New Yorkr New York 10012
1212) 598-2538

Siegfried Knopf
Suite 5060
555 California Street
San Francisco, California 94104

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