Brief in Support of Motion to Dismiss, Sever or Transfer

    IN THE DISTRICT COURT OF THE UNITED STATES FOR THE 
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION 

JOHN DILLARD, et al., 

Plaintiffs, 

CIVIL ACTION NO. 85-T-1332-=N 
Yo 

CRENSHAW COUNTY, etc., et al., 

r
d
 

e
d
 
N
d
 
C
d
 
C
d
 

A
d
 

N
d
 
C
d
 
A
d
 

Defendants. 

BRIEF IN SUPPORT OF MOTION TO DISMISS 
AND/OR 

SEVER AND/OR TRANSFER 

  

  

This brief is submitted by the Escambia County defendants, 

Escambia County, Martha Kirkland as Probate Judge, James D. Taylor as 

Circuit Clerk, and Timothy A. Hawsey as Sheriff of Escambia County. 

These defendants will be referred to as "Escambia defendants". 

Due to the shortness of time available for preparation and filing 

of this brief and other commitments of counsel, this brief “is 

necessarily short particularly on the procedural matters raised in the 

motion to dismiss. We respectfully request permission to file a 

subsequent brief on the question of the procedure . utilized by 

plaintiffs, i.e., amending the complaint to change the scope of the 

original action. 

I. Procedure. 

Plaintiffs in November filed suit in this Court against defendant 

Crenshaw County as a class action claiming vote dilution by virtue of 

Crenshaw County Commission being elected by an at large method. After 

the answer ‘was filed plaintiffs riled a request to file an amended 

complaint to which defendant Crenshaw County consented. By the 

amended. complaint plaintiffs (a groups of "citizens of Crenshaw  



  

County) proceeded to add other parties plaintiff, citizens of seven 

other political subdivisions, (counties), and as parties defendant the 

Officers of those seven other political subdivisions. Five of the 

seven political subdivisions are located in the Northern District of 

Alabama. One (Escambia) is located in the Southern District of Alabama 

and only one of the added county political subdivisions (Coffee) is 

located in the Middle District as'will be ‘discussed later in this 

brief. This suit in effect amounts to eight separate and distinct 

class actions which have been joined by the method of amended 

complaint into one class action before this Court in the Middle 

District of Alabama which Escambia defendants respectfully insist is a 

violation of federal procedure. 

Alls relevant {est 'factors for voter dilution, as will be 

discussed in more detail in this brief, involve each political 

subdivision separately. There is no way that a single trial or single 

set of facts can be deveoped that would cover all eight political 

subdivisions as a group. Further, each group of plaintiffs, and there 

are eight ‘individual "groups by. virtue of their residence, have 

alleged in common only one factor, i.e., the color of their skin. We 

respectfully insist that what is involved is not a single class action 

but rather eight individual class actions against eight individual 

political subdivisions, each with its own separate factual 

considerations and circumstances. 

There are several rules of civil procedure covering the addition 

of.< parties, such. as: Rules 14, 19, ‘and 20, F,.R.C.P. however, none 

 



  

appear to cover the procedure utilized “in this ‘particular. case, 

Normally a ‘party plaintiff 1s added by a motion to intervene, c.f. 

American Pipe & Construction Co, v. Utah, #414 U.S, 538, 945 S.Ct... 756 
  

(1974) ‘and Stull v. Bayard, 424 F. Sopp.“ 937 (S.D.N.Y,.1977), Afrf'd 561   

F.2d 429, (2d Cir. 1977). We recognize however, that an amendment has 

been allowed in certain instances particularly where the parties to be 

added as parties plaintiff have consented in writing to such an 

amendment. "See Osturo _v, _Psn Am, 378 F.Supp.-80:(D.C. Ha. 19 9)   

However, by eifher procedure, such parties should have a commonality 

with the original action brought. In this particular instance Escambia 

defendants respectfully insist there is no such commonality. The 

parties added both as plaintiffs and defendants neither reside in, 

vote in, nor have any apparent interest or alleged interest in the 

political process of Crenshaw County. The addition of such parties 

would appear to be a total misjoinder of parties such as noted by Rule 

21, F.R.CiP, Escambia defendants could not possibly offer any relief 

to the original party plaintiffs. They reside, vote and apparently are 

otherwise totally interested in only the political process of Crenshaw 

County. Those original plaintiffs could not possibly have standing to 

bring a class action against the Escambia defendants, by amendment or 

otherwise. For these reasons we respectfully submit that there has 

been a total breakdown of proper procedure in this case. 

What the plaintiffs have attempted to do by a piggyback type 

amendment with the consent of Crenshaw defendants is bring eight 

separate voter dilution suits, eight distinct class actions, into one 

 



  

Court proceeding without regard to the procedures of multi district 

litigation prescribed by Congress, 28 U.S.C. Section 1407. At least 

one political subdivision, has indicated it 1s presently in another 

Court. Removal by amendment simply is not the proper procedure. 

Il. Venue, 

28 U.S.C. 1391(b) would require. a voter ‘dilution suit 

against Escambla defendants to be brought. in the United States 

District Court for the Southern District of Alabama, and if Escambia 

defendants. are correct, this Court should either dismiss or 

sever ‘and in’ the ‘interest: of Justice transfer this case to the 

Southern District of Alabama under Section 1406(a). In the alternative 

the Court should sever and transfer the case under Section 1404(a) for 

the convenience of the parties and witnesses and in the interest of 

Justice. The only parties plaintiff that could possibly have standing 

to bring suit against Escambia County are those residing in that 

political subdivision, namely McBride, White, McGlasker, America and 

McCorvey (hereinafter referred to as "Escambia plaintiffs"). Even the 

principal attorneys for the Escambia plaintiffs are located in the 

Southern District of Alabama. 

The Eleventh Circuit Court of Appeals in United States v. Dallas 

County Commission, 739 F.2d 1529 (1984), reiterated and approved the 

test factors previously set by the Court in United States Vv. Marengo 
  

county commission, 731 F.2d 1546 (11th Cir. 1984). In each instance   

the: Court has stated that it interprets Section 2 of the Voting 

Rights. Act ‘of 1965, as amended, 42 U.3.C., Sections 1973(a){(b), as 

 



* ® 

  

requiring a test of "results" rather than a Lest of "intent", The 

Court further considered the nine typical factors established by the 

Senate Committee on the Voting Rights Amendment of 1982 {Senate Report 

Number 417, "97th Cong., 2d Sess, 2 (1982). In applying these 

principles this Court of necessity must consider and plaintiffs must 

prove a "totality of circumstance" in each separate distinct political 

subdivision. A mere finding of totality of circumstance indicating 

voter dilution in Crenshaw County or Pickens County, Lawrence County 

or Coffee County, is not going to be a finding of voter dilution in 

Escambia County. There will unquestionably be some prior acts not 

committed in "modern" (post 1965) times applicable to all counties of 

the State of Alabama and indeed to all political subdivisions of any 

state in the old south. However, there would not necessarily be 

factors common at the present time to each of the eight 

political subdivisions. Judge Godbold in Dallas case, supra, (at page 

1547) approved the 1965 date as "modern times" for other factors to 

support or deny a finding of dilution. 

The test factors that this Court must consider in finding a 

voter dilution will of necessity involve different findings as to each 

political subdivision; the extent ©0 ‘which voting in ‘elections is 

racially polarized; voting practices or procedures that may enhance 

the opportunity for discrimination; the candidate slating process; the 

extent to which members of the minority group bear the effects of 

discrimination, such as education, employment and health hindering 

their ability to participate; whether political campaigns are overt or 

 



    

subtle racial appeals; the extent fo which members of the minority 

group. have ‘been elected to public office; whether there is = 

significant lack of responsiveness and whether there is any voter 

disqualification or pre-requisite to voting. Other factors considered 

Would be lingering hostility, fear of the county courthouse, 

Participation in the 'elecforial process, registration of voters, 

deputy registers, convenience to rural areas, such as approved in 

Dalles, supra. Of: ithe Senate Committee factors, only (wo could 

conceivably be common in proof. Eaeh of the above factors we 

respectfully submit necessitates a separate hearing for each political 

subdivision, ‘The finding ‘by the Court "as {oo dilution or lack of 

dilution on any particular political subdivision would not affect the 

finding as to any toutes political subdivision. 

in addition to ithe lack of commonality as to proof of factors 

required for voter dilution this Court in the event it finds dilution 

to exist in a particular political subdivision must order a remedy. 

That remedy of necessity is going to be different in each political 

subdivision. For example, in many counties the probate judge is 

chairman of the county commission and it probably has four districts. 

In other counties, however, there will be a more or less number of 

districts and the chairman may either be appointed or elected by the 

county at large. The geography and demography of each county will of 

necessity be different as will the area location of the minorities to 

be + protected, The ‘availability of maps and census data as to areas 

within the county will be different. The census for example in rural 

 



  

counties will not necessarily specify the number Of citizens in a 

particular area. Other problems to be considered by the Court in 

drafting of ‘district lines is other minorities to be protected. 

Escambia County has a large Indian population and =a growing Asian 

population. 

All of these factors we respectfully submit to this Court should 

show that this case is not a single voter dilution class action but 

rather eight separate class actions, The majority of those eight 

separate cases would normally have been brought in the Northern 

District of « Alabama. Only two of the political subdivisions involved 

are located in the Middle District and Escambia is the lone county in 

the Southern District. 

This! writer: is reminded. of the prison and jail suit pending in 

this Court in 1976, Adams, et al, and United States, Intervenor wv,   

  

Mathis, ef al,, Civil Action Number T4-70-S, in that case plaintiffs 

and the United States as Intervenor attempted to broaden the class 

aspect of the 'getion so as to bring in as a defendant class other 

political subdivisions, counties and municipalities and thereby effect 

one reform order setting forth standards in local Jails. This Court 

(Judge Johnson presiding) entered an order on May 10th, 1976 denying 

the defendant class and in so doing recognized the divergent problems 

of each political subdivision involved. The Court noted the vast 

differences in size, population, function and condition of the various 

municipal and county jails throughout the state of Alabama. It . noted 

that each: municipal and county governing body had considerable 

 



autonomy in the operation of its jails. Thus conditions established by 

the evidence with respect to the jails operated would not establish 

that. such conditions exist. in Jjalls operated by the absent class 

members. The test applied by the Court was that of a "totality of 

conditions! of confinement which is virtually the same ‘test that must 

be =applied in this Court under Section 2 of the Voting Rights Act, 

supra. The Court distinquished the case of Washington v. Lee, 263   

F.Supp. 327 (M.D. Ala. 1966) by noting the single issue before the 

Court in the Washington case was the constituiionality of racial 

segregations in state penal facilities. Unlike Washington, Adams 

presented a miriad of complex legal and factual issues. The defendants 

separately disputed the exsitence of the alleged conditions and 

consequently the interest of each defendant in controlling his or her 

defense out weighed the possible convenience of the class action 

device, 

Admittedly, Adams presented the immediate question of a defendant 

class, however, the underlying question of commonality and diversity 

is present in both Adams and instant case. Commonality is a big 

factor in deciding whether the venue should remain in this Court. It 

would appear that this Court faces an even more complicated 

evidentiary problem than that faced by the Court in Adams, supra. 

What could be more diverse than responsiveness of elected officials to 

minority voters or political campaigns involving racial appeals. 
vst 2D 

would submit that none of the above factors will be found to exist in 

Escambia County, however, we cannot and would not pretend to speak for  



  

the conditions in other counties. 

Following the denial of the defendant class by the order of May 

10th, 1976 the Court in Adams, supra on July 1st, 1976 denied the 

Plaintiff. 

CONCLUSION. 

Based on the above and other factors raised in the motions, 

Escambia defendants respectfully move the Court to dismiss the 

complaint as amended or alternatively to sever the complaint: as to 

these defendants and/or transfer venue to the Southern District of 

Alabama. In view of the Court's order directing the briefs to cover 

the dismissal feature and venue feature of the motions we did not 

address the alternative motion to deny the class certification. This 

motion 1s probably premature, however, of necessity it involves many 

of the same factors raised in the above motions and will be addressed 

at a future time. 

CRA 
dames W. Webb 
Attorney for Escambia County 

  

OF COUNSEL: 

WEBB, CRUMPTON, McGREGOR, SCHMAELING & WILSON 
166 Commerce Street, P.O. Box 238 
Montgomery, Alabama 36101 
(205) 834-3176 

\ ] fpr 

Yl dd 74 
Lee Ofts 
Attorney for Escambia County 

  

OF COUNSEL: 

Otts & Moore 

P.O. Box 467 
Brewton, Alabama 36427 
(205) 867-7724 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify . that. copies’ of the foregoing brief in 
support of motion to dismiss and/or sever and/or transfer have been 
mailed to Larry T. Menefee, Esquire, James U. Blacksher, Esquire and 
Wanda J. Cochran, Esquire, Blacksher, Menefee & Stein, 405 Van Antwerp 
Building, P.O. Box 1051, Mobile, Alabama 36633, . ‘Terry G, Davis, 
Esquire, Seay ~“& Davis, 732 Carter Hill «Road, =PJ0, Box 6125, 
Montgomery, Alabama 36106, Deborah Fins, Esquire and Julius L. 
Chambers, Esquire, NAACP Legal Defense Fund, 1900 Hudson Street, 16th 
Floor, New York, New York, 10013, Jack Floyd, Esquire, Floyd, Kenner & 
Cusimano, 816 Chestnut Street, Gadsden, Alabama 35999, Alton Turner, 
Esquire, Turner & Jones, P.O. Box 207, Luverne, Alabama 36049, D.L. 
Martin, Esquire, 215 3. Main Street, Moulton, Alabama 35650, David R. 
Boyd, Esquire, Baleh %& Bingham, P.O. Box 78, Montgomery, Alabama 
36101, «W.0. Kirk, Jr., Esquire, Curry & Kirk, Phoenix Avenue 
Carrollton, Alabama 35447, Barry D. Vaughn, Esquire, Proctor & Vaughn, 
1217 N. Norton Avenue, Sylacauga, Alabama 35150, H.R. Burnham, Esquire, 
Burnham, Klinefelter, Halsey, Jones & Cater, 401 SouthTrust Bank 
Building, P.O. Box 1613, Anniston, Alabama 36202, Warren Rowe, 
Esquire, Rowe, Rowe & Sawyer, P.O. Box 150, Enterprise, Alabama 36331, 
Edward Still, Esquire, 714 .South 29th Street, Birmingham, Alabama 
35233-2510, ‘Reo. Kirkland, ‘Jr., Esquire, P.0. Box 646, Brewton, 
Alabama 36427, and all defendants not represented by counsel by 
placing copies of the same in the United States Mail, postage prepaid 
this the 27th day of January, 198%. 

4 

Geb 27 
  

FEY W. "Webb