Correspondence from Judge Thompson to Counsel Re Discrepancies Between Plaintiffs' Exhibit 187 and Proposed Findings

    IN THE UNITED STATES DISTRICT COURT | 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

JOHN DILLARD, et al., 

Plaintiffs, 

Vv. CASE NO. 85-T-1332-N 
CRENSHAW COUNTY, ALABAMA, 

et al., 

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Defendants. 

MEMORANDUM OF DEFENDANTS LAWRENCE COUNTY, LARRY SMITH AND 
DAN LIGON IN SUPPORT OF MOTION TO DISMISS OR TRANSFER 
  

This memorandum is submitted in support of the motion to 

dismiss or transfer, or, in the alternative, to sever and 

transfer filed by Defendants Lawrence County, Larry Smith and 

Dan Ligon. These Defendants will show that, because the 

multiple parties are improperly joined, venue is improper in 

this District, and that, even if venue were proper here, the 

Court should sever the Lawrence County-related claims from the 

claims relating to the other counties, and then transfer the 

Lawrence County claims to the Northern District of Alabama, 

where Lawrence County is located. 

I 

Venue And Misjoinder 
  

Under the general venue provisions of 28 U.S.C. §1391(b), 

venue of the Lawrence County-related claims would not be proper 

in the Middle District, since none of the Lawrence County 

 



  

Defendants reside in the Middle District, and the claims 

certainly did not arise in the Middle District. However, the 

Plaintiffs are expected to rely on 28 U.S.C. §1392(a) to 

support their claim that venue is proper in the Middle 

pistrict.t This section provides, essentially, that if 

venue is good in one district of a state as to some defendant, 

other defendants from other districts in the state may be sued 

in the same suit, notwithstanding that venue would not 

independently lie against the other defendants in the original 

district. The rule is, as Wright & Miller have called it, "a 

limited statutory escape" from the normal rule. Federal 

Practice and Procedure, §3807, p.38 (1976). 
  

The Plaintiffs' reliance on 28 U.S.C. §1392(b) frustrates 

and undermines the purpose of the statute, and should not be 

countenanced. Section 1392(b) was obviously enacted to cover 

situations where a plaintiff (or a properly-joined group of 

plaintiffs), having a claim against properly-joined multiple 

defendants arising out of the same general transaction or 

occurrence, would be thwarted in the effort to achieve relief 

by having to pursue an otherwise-indivisible claim in several 

forums, purely because of the strictures of the general venue 

statute. See 1 Moore's Federal Practice 90.143. 
  

  

yy The fact that this case is brought as a class action 
does not make Sections 1391 and 1392(a) any less applicable. 
Venue for a class action is determined just as it is in a 
comparable type of nonclass action. 3B Moore's Federal 
Practice $23.96. 

  

  

 



  

The rule was not designed -- as it is sought to be used 

here -- to give eight sets of plaintiffs the right to join 

eight sets of defendants in one action where the respective 

claims, relating to eight different counties, have little in 

common factually, and where there is no basis under F.R.C.P. 

20(a) for joinder of the multiple parties in the first place. 

Inseparable from the §1392(b) venue question is whether 

the multiple plaintiffs and multiple defendants are properly 

joined in one action under F.R.C.P. 20(a). If they are, 

§1392(b) arguably is a good basis for venue in the Middle 

District. On the other hand, if the multiple parties are not 

properly joined under Rule 20(a), §1392(b) is necessarily 

inapplicable. See, e.g., Cheeseman v. Carey, 485 F.Supp. 203, 
  

208-10 (S.D.N.Y. 1980). 

Rule 20(a) provides, in pertinent part, as follows: 

Permissive Joinder. All persons may 
join in one action as plaintiffs if they 
assert any right to relief jointly, 

severally, or in the alternative in respect 
of or arising out of the same transaction, 
occurrence, or series of transactions or 
occurrences and if any question of law or 
fact common to all these persons will arise 
in the action. All persons (and any 
vessel, cargo or other property subject to 
admiralty process in rem) may be joined in 
one action as defendants if there is 
asserted against them jointly, severally, 
or in the alternative, any right to relief 
in respect of or arising out of the same 
transaction, occurrence, or series of 
transactions or occurrences and 1f any 

    

    

  

    

  

    

question of law or fact common to all 
defendants will arise in the action. 
« « « « (emphasis added) 

 



  

in the present case, the requirements of Rule 20(a) are 

not met because, as explained in more detail in the following 

section, the claims made by the various county groups of 

plaintiffs against the various county groups of defendants do 

not arise out of the same transaction, occurrence, or series of 

transactions or occurrences. The claims relating to Lawrence 

County, for example, must necessarily be considered and decided 

separately from the claims relating to Crenshaw County, because 

the Court is required to make its decision on the vote dilution 

question on the basis of a number of well-established factors 

on which the evidence will necessarily differ from county to 

county. See, United States v. Marengo County Cn., 731 F.2d 
  

  

1546, 1566 (llth Cir. 1984), cert. denied, U.S. +103 
  

S.Ct. 375, 83 L.EA.24 311 (1984). 

Since the multiple parties are improperly joined in the 

action, the very foundation for application of the §1392(b) 

venue exception is completely eroded. If the exception is 

designed to accommodate lawsuits which properly involve 

multiple parties from more than one district, it follows that 

there is no place for its application in a lawsuit where the 

multiple parties are improperly joined in violation of Rule 

20(a). 

Under Rule 21 of the Federal Rules of Civil Procedure, 

misjoinder of parties is not ground for dismissal of the 

action. The Rule provides as follows: 

Misjoinder of parties is not ground for 

dismissal of an action. Parties may be 

-—d- 

 



  

dropped or added by order of the court on 
motion of any party or of its own 
initiative at any stage of the action and 
on such terms as are just. Any claim 
against a party may be severed and 

proceeded with separately. 

Similarly, 28 U.S.C. §1406(a) authorizes the dismissal or 

transfer of cases from the district of improper venue to a 

district where the claim could have been brought. 

In the instant action, there is clearly a misjoinder of 

the Lawrence County parties. Because of the misjoinder, the 

venue exception of 28 U.S.C. §1392(b) does not apply to these 

parties, and thus venue, as to them, is not good in the Middle 

District. For all these reasons, and in accordance with the 

provisions of Rule 21 and Section 1406(a), the Lawrence County 

claims should be severed, transferred to the Northern District, 

and proceeded with separately. 

1} 

Severance and Transfer 
  

Even if the joinder of parties were appropriate, and even 

if venue were technically proper in the Middle District, the 

claims relating to Lawrence County should be severed from the 

claims relating to the other counties, and then transferred to 

the Northern District of Alabama for further proceedings. 

Rule 20(b) of the Federal Rules of Civil Procedure 

authorizes the Court, in cases where there are multiple 

 



  

parties, but where some of the parties have no claims against 

each other, to order that separate trials be held, in order to 

avoid embarrassment, delay or expense. Similarly, Rule 42(b) 

authorizes the Court -- in furtherance of convenience, to avoid 

prejudice, or when conducive to expedition and economy -- to 

order a separate trial of any claim or issue which might be 

included in a lawsuit with other claims and issues. 

Section 1404(a) of Title 28 of the United States Code, 

commonly referred to as the forum non conveniens statute, 
  

authorizes the Court to transfer an action to any district 

where it could originally have been brought, if such a transfer 

would be "for the convenience of parties and witnesses" and "in 

the interest of justice.” 

As explained below, this Court should use Rules 20(b) and 

42(b), and Section §1404(a), to sever the Lawrence County 

claims from the claims against the other counties and then to 

transfer the Lawrence County claims to the Northern District, 

where they could have been brought originally. 

It is well-settled law that Plaintiffs' claims under 

Section 2 of the Voting Rights Act must be considered and 

decided by the Court before the Plaintiffs' claims based upon 

the Constitution. Lee County Branch of NAACP v. City of 
  

Opelika, 748 F.2d 1473, 1475 (llth Cir. 1984); Escambia County 
  

V. McMillan, U.S. sy 104 8,Ct. 1577, 80 L.EA.24 36 
  

(1984). For this reason, it is appropriate to consider the 

 



  

present issue of severance and transfer principally in light of 

Plaintiffs' statutory claims. 

Brought under Section 2, the present claims against the 

various counties are in reality eight separate "dilution" 

cases, in which the Plaintiffs claim that their voting power 

has been minimized by the existing election scheme in the 

respective county of their residence. Of necessity, the merits 

of these claims must be dealt with on a county-by-county basis, 

because the evidence relating to the factors the Court is 

required to consider obviously will be different from county to 

county. See United States v. Marengo County Cn., supra, 731 
  

  

F.2d at 1566; McMillan v. Escambia Cty., Fla., 748 F.2d 1037 
    

(11th Cir. 1984); and Lee County Branch of NAACP v. City of 
  

Opelika, supra. That is, the factors -- such as existence of 
  

racially polarized voting, extent of participation by blacks in 

the electoral process, election practices, and extent of 

success of black candidates -- are geared to a particular 

election system for a particular office or offices in a 

particular locale, with a given electorate and a unique 

election history. 

The Court will readily see that, because of the lack of 

typicality and commonality among the several counties, any 

attempt at class action treatment will result in an 

unmanageable conglomerate of factually-independent 

mini-proceedings, with the absolute certainty that each such 

 



  

proceeding will be decided in an independent evidentiary 

hearing. At-large election systems for county commissions are 

not inherently violative of either the Constitution or the 

Voting Rights Act (United States v. Marengo County Cn., supra, 
  

  

731 F.2d at 1564), and the existing at-large systems could, 

theoretically, be adjudged lawful for elections in some 

counties, while unlawful for elections in others, depending 

entirely upon their differing circumstances -- circumstances 

which can only be distinguished through full evidentiary 

hearings. Obviously a finding in favor of the Plaintiffs with 

respect to one county would not mean that persons in some 

other, unique county have necessarily had their rights 

violated. 

Further, if liability were established, the remedy phase 

for each county would necessarily have to be handled 

separately. No particular remedy is required to redress a vote 

dilution situation. United States v. Marengo County Cn., 
  

  

supra, 731 F.2d at 1566, note 24. If the Court allows this 

action to proceed in its present form, at the remedy stage it 

will simply be handling several independent cases under the 

cumbersome and inefficient umbrella of one civil action. 

Reluctant to belabor the point, we must emphasize that 

joint consideration of the allegations made in the 

multi-faceted, eight county complaint is impractical because 

the validity of the allegations will depend upon which 

particular county is being examined. The wide diversity of 

factual circumstances which exists within the boundaries of the 

-8w 

 



State of Alabama is dramatically illustrated by two recent 

decisions of the Eleventh Circuit Court, United States Vv. 
  

Marengo County Cn., supra, and Lee County Branch of NAACP v. 
  

  

Opelika, supra, both decided in 1984 under the amended version 
  

of Section 2 of the Voting Rights Act. 

In Marengo County, the Court was considering whether the 
  

at-large method of electing county commissioners resulted in 

unlawful dilution of black voting strength under the "results" 

test of the amended Section 2. The Eleventh Circuit set forth 

the following list of factors to be considered in answering 

this question (some factors having greater importance than 

others): 

Racially polarized voting; 

Past discrimination and its lingering effect; 

Access to the slating process; 

Election practices (race of poll officials, etc.); 

Enhancing factors; 

Racial appeals in elections; 

State policy; 

Success of minority candidates; 

Unresponsiveness of elected officials. 

Applying these factors to the evidence relating to Marengo 

County, the Eleventh Circuit concluded (at page 1574) that "the 

record compels a finding that, as of the time of trial, Marengo  



County's at-large system resulted in abridgement of black 

citizens' opportunity to participate in the political process 

and to elect representatives of their choice". 

However, the Eleventh Circuit reached a completely 
  

different answer 150 miles on the other side of the State in 
  

City of Opelika, supra, holding that the plaintiffs had not 
  

established that the at-large method of electing the city 

government of Opelika constituted a violation of Section 2. In 

explaining the different results, the Eleventh Circuit pointed 

out important differences in the factual circumstances 

relating to these two localities in the State of Alabama: The 

court in Marengo had found extremely strong evidence of 

polarized voting in elections in Marengo County, whereas in 

Opelika, "evidence of racially polarized voting is weak". 

There was evidence in Marengo that appointments of poll 

officials were racially motivated, and tended toward tokenism, 

and that the Board of Registrars limited the number of days 

when it was open. In contrast, in Opelika the Registrar's 

office is open every day of the week and the evidence shows the 

use of black officials in voting and registration of voters. 

Overall, the record in Opelika presented a much weaker showing 

on the issues of racially polarized voting and election 

practices than that in Marengo. 

It is unlikely that the Court of Appeals would have 

accepted the suggestion, if it had been offered, that these two 

at-large voting systems should be tried together as a class 

-0~  



  

action because they both involved common questions of law and 

fact under the Voting Rights Act, or that all of the at-large 

forms of county government and city government in the State of 

Alabama should be tried as a class action, simply because they 

all involve questions of alleged voter dilution under the 

Voting Rights Act. At-large voting systems are not inherently 

unconstitutional, and they can be declared illegal only after 

the relevant factors are applied to the particular election 

district as required by the Eleventh Circuit. 

Because the claims relating to Lawrence County must be 

decided on evidence which, at least for most part, will relate 

uniquely to Lawrence County, the Lawrence County claims should 

be severed from the remainder of the action. Only the Lawrence 

County Plaintiffs have standing to raise the claims relating to 

Lawrence County, and only the Lawrence County Defendants have 

the responsibility for defending those claims. The great bulk 

of discovery on the Section 2 factors will necessarily involve 

Lawrence County people and records, and not the people and 

records of any other county. It makes sense to sever the 

Lawrence County claims, and it makes no sense not to do so. 

The severance should be accompanied by a transfer of the 

Lawrence County claims to the Northern District pursuant to 28 

U.S.C. §1404(a). Certainly the action could have been brought 

in the Northern District, so it is a proper district to which 

to transfer the case. It is also the best district for 

resolution of the case, because it is unquestionably the most 

We ©. YO 

 



  

convenient and efficient forum for deciding this controversy. 

All the interested parties reside in Lawrence County; most, if 

not all, the witnesses who would be involved in the trial of 

the Lawrence County aspect of this case reside in Lawrence 

County; compulsory process for attendance of North Alabama 

witnesses would be available in the Northern District, but is 

questionable in the Middle District; and, generally, the 

fact-intensive inquiry mandated by Marengo County and other 
  

applicable Eleventh Circuit cases can more economically and 

fairly be conducted in the Northern District, where Lawrence 

County is located. Moreover, there is absolutely no nexus 

between the Middle District of Alabama and the Lawrence County 

aspect of this case. 

The Plaintiffs may argue that each separate county claim 

will involve evidence of the State of Alabama's race-related 

history, and that this common feature of the claims warrants 

their being litigated in one case. However, Marengo County 
  

tells us that history -- that is, a history of racial 

discrimination -- is only one of the several factors to be 

considered in a dilution case, and that there is no prescribed 

formula for aggregating the factors. 731 F.2d at 1574. The 

ultimate conclusion, in each case, must be "based on the 

totality of circumstances." 1d. Accordingly, it makes little 

sense to decline an otherwise-appropriate severance and 

transfer based on the possibility that the evidence on one 

factor may be common to the various counties, when the evidence 

WE § 

 



  

on all the other factors will be different from county to 

county. We would also note that, while evidence of past 

discrimination was found to be "important" in Marengo County, 
  

731 F.2d at 1567, the evidence discussed there principally 

related not to state history, but rather to the history of 

Marengo County: Hence, even the history factor of the 

dilution equation has an important local component. 

The wisdom of a Section 1404(a) transfer of the Lawrence 

County aspect of this case to the Northern District is 

illustrated by a famous decision from this very Court, issued 

by a three-judge Court consisting of Judges Rives, Grooms, and 

Johnson. In Lee v. Macon County Board of Education, et al., 
  

  

Civil Action No. 604-E, the suit brought by parents and school 

children of Macon County to end racial segregation of the 

County's public schools, the Court concluded that, because of a 

wide range of activities carried out by the Governor and other 

state officials designed to frustrate desegregation of the 

State's public schools generally, only a statewide order 

applicable to every school system in the State could 

effectively achieve meaningful desegregation. The statewide 

order was made applicable to every school system in the State 

not then under court order, and was to be implemented through 

the State Superintendent of Education. The individual school 

boards were not made defendants. 

  

2/ £/ +The Court did refer to "cases of statewide applica- 

tion" as also being important in the Court's consideration of 

the "history" factor. 731 F.2d at 1568. 

-13- 

 



  

In a series of later orders, the three-judge Court made 

the State's individual school boards formal parties defendant 

in Lee v. Macon, and maintained jurisdiction over the State's 
  

school systems for some time. 

when the individual school boards became parties, and as 

it became clear that local issues, relating to particular 

school systems, had begun to predominate over the statewide 

issues, the Court, under the authority of 28 U.S.C. §1404(a), 

severed the Lee v. Macon case, by school system, and 

transferred it to the District Courts for the Northern, Middle 

and Southern Districts of Alabama as it related to the county 

and city school systems in those districts. A copy of the 

Court's order is attached as an Appendix. It is particularly 

important to note that, at page 5, the Court concluded that the 

Lee v. Macon case had "evolved into many separate school 

desegregation cases," and thus needed to be fragmented. The 

Court also said: 

It is quite evident that the convenience of 
the parties and witnesses and the interest 
of justice would be better served by the 
decentralization of this case and the 
transfer of the separate school 

desegregation cases to the district courts 
having regular jurisdiction over the areas 
in which the school districts are 
situated. 

In the present case, as discussed above, the various local 

issues (such as the existence of racially-polarized voting) 

clearly predominate over the statewide issue (the State's 

history of race discrimination). And it is absolutely clear 

-l4- 

 



that the considerations of convenience and economy weigh 

heavily in favor of a §1404(a) transfer. Accordingly, this 

Court should now transfer this part of the case to the Northern 

District, just as the Lee v. Macon Court transferred the school 

cases when they became, in effect, separate cases and local 

issues came to predominate. 

111 

Class Action 
  

The class certification question is not directly before 

the Court, but it is probably inseparable from the issues 

addressed above. For the same reason that joinder of the 

Lawrence County parties and claims in this lawsuit is improper, 

and for the same reasons that severance and transfer is 

appropriate, this case is ill-suited for class action 

treatment. If the Lawrence County claims were severed and 

transferred, a plaintiff class of black citizens of Lawrence 

County would arguably be appropriate. But a class of 

plaintiffs from eight separate and distinct counties is not 

appropriate. These Defendants respectfully reserve the right 

to revisit this issue when it is formally before the Court. 

Respectfully submitted, 

D. L. Martin 77548 
  

215 South Main Street 
Moulton, AL 35650 
(205) 974-9200  



  

  

David R. tnd 7. 2.22 

Attorney for Defendants 

Lawrence County, Alabama, 

Larry Smith and Dan Ligon 

BALCH & BINGHAM 

P. O. Box 78 

Montgomery, Alabama 36101 

(205) 834-6500 

CERTIFICATE OF SERVICE 
  

I hereby certify that I have served the foregoing 

Memorandum of Defendants Lawrence County, Larry Smith and Dan 

Ligon in Support of Motion to Dismiss or Transfer, upon all 

counsel of record listed below by placing copies of same in the 

United States Mail, properly addressed and postage paid this 

24 aay of January, 1986. 

Aon HBr 
V 
  

OF COUNSEL 

-16- 

 



  

Larry T. Menefee, Esq. 

James U. Blacksher, Esq. 

wanda J. Cochran, Esq. 

Blacksher, Menefee & Stein 

405 Van Antwerp Building 

P. O. Box 1051 

Mobile, Alabama 36633 

Terry G. Davis, Esq. 
Seay & Davis 

732 Carter Hill Road 

P. O. Box 6125 

Montgomery, Alabama 36106 

Deborah Fins, Esq. 

Julius L. Chambers, Esq. 

NAACP Legal Defense Fund 

1900 Hudson Street 
l6th Floor 
New York, New York 10013 

Jack Floyd, Esq. 
Floyd, Kenner & Cusimano 
816 Chestnut Street 
Gadsden, Alabama 35999 

H. R. Burnham, Esq. 

Burnham, Klinefelter, Halsey, 

Jones & Cater 

401 SouthTrust Bank Building 

P. O. Box 1618 
Anniston, Alabama 36202 

Warren Rowe, Esq. 

Rowe & Sawyer 
P. O. Box 150 
Enterprise, Alabama 36331 

Reo Kirkland, Jr., Esq. 
P. O. Box 646 
Brewton, Alabama 36427 

James W. Webb, Esq. 
Webb, Crumpton, McGregor, 

Schmaeling & Wilson 
166 Commerce Street 

P. O. BOX 238 
Montgomery, Alabama 

Lee Otts, Esq. 

Otts & Moore 

P. O. Box 467 

36101 

Brewton, Alabama 36427 

W. O. Rirk, Jr., Esq. 
Curry & Kirk 

Phoenix Avenue 
Carrollton, Alabama 

Barry D. Vaughn, Esq. 
Proctor & Vaughn 
121 N. Norton Avenue 

35447 

Sylacauga, Alabama 35150 

Alton Turner, Esq. 
Turner & Jones 

P. O Box 207 

Luverne, Alabama 36049 

DP. L. Martin, Esq. 
215 S. Main Street 
Moulton, Alabama 35650 

Edward Still, Esq. 
714 South 29th Street 

Birmingham, Alabama 

oe hy 

35233-2810 

 



    

4 - A PPENDI1LIX = 
    

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE 

DISTRICT OF ALABAMA, EASTERN DIVISION 

FILED 
MAR 3 1 1370 

ANTHONY T. LEE, ET AL., 

Plaintiffs, 

8. CIT ou 
———— maaan 

UNITED STATES OF AMERICA, 
EE rT Pu 

S&uy gine 

Plaintiff-Intervenor 

and Amicus Curiae, 

NATIONAL EDUCATION CIVIL ACTION NO. 604~E 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 
ASSOCIATION, INC., ) 

) 
Plaintiff-Intervenor, ) 

K 

) 

) 

) 

) 

) 

) 

vs. 

MACON COUNTY BOARD OF 

EDUCATION, ET AL., 

Defendants. 

QRDER 

This case was originally filed in January 1963, and 

~ 

Ad 

involved a petition for equitable relief by parents and school 

children of Macon County against the Macon County Board of 

Education, its superintendent and its individual members. 

Jurisdiction was invoked under § 1343(3), Title 28, and § 1983, 

Title 42, United States Code. The plaintiffs sought an injunction 

prohibiting the Board from continuing to maintain its policy, 

Practice and custom of compulsory biracial assignment of students 

to the Macon County public schools. After a hearing, the relief 

sought by the plaintiffs was granted by order entered on August 22, 

1963. Lee v. Macon county Board of Education, 221 F.Supp. 297 

(M.D.Ala. 1963). At this juncture the case represented no more 

than a typical class action against a single school system. In 

compliance with the court order, the Macon County Board of 

  

     



    

> 

  

go 

Education assigned to its previously all-white Tuskegee High 

   
School 1) Negro pupils who had exercised a choice to attend 

that school. 

On Ceptember 2, 1963, acting pursuant to an executive 

order of tha Governor of Alabama, state troopers prevented these 

13 Negro pupils from physically entering the Tuskegee High School. 

The order, which was issued without the knowledge or consent of 

the Macon County Board of Education, declared the school closed. 

On September 9, 1963, state troopers acting on the Governor's 

order again prevented the Negro students from entering the 

school. A temporary restraining order was entered enjoining 

implementation of the executive orders and enjoining any inter- 

ference with compliance with the court orders. United States 

v. Wallace, 222 F.Supp. 485 (M.D.Ala. 1963). 

Subsequently, and in February 1964, the plaintiffs 

filed an amended and supplemental complaint alleging that the 

State Board of Education had asserted general control and super- 

vision over all the public schools in the state in order to 

continue the operation of a racially segregated school system 

throughout the State of Alabama, and particularly in Macon Countv. 

The State Board of Education and its members, the State Super- 

intendent of Education and the Governor, as ex officio President 

of the State Board of Education, wers made defendants. At the 

same time, the plaintiffs sought to enjoin further enforcement 

by defendants of Title 52, § 61 (13-21), Code of Alabama 1940, 

and several other statutes that permitted the use of public 

funds for the maintenance of "private' segregatad schools in 

order to circumvent court orders. As a part of this supplemental 

proceeding, the "tuition grant resolutions” of the State 

Board of Education were challenged. At this point the District 

     



    

T
r
 

p
e
r
 

? ! 

av -. - . 

wlan er : 

> . ? : . . 

  

Judge requested, and the Chief Judga of tha United States Court 

of Appeals constituted, a three-judge court pursuant to §§ 2281 

and 2284, Title 28, United States Code. In July 1964, the 

three-judge court sntered an order which enjoined, inter alia: 

(1) Interference by the Governor, the Stata Board 

or any member thereof with the desegregation of the Macon County 

public schools; and 

(2) The use of tuition grants for students enrolled 

in schools discriminating on the basis of race or color: 

Lee Vv. Macon County Board of Education, 231 F.Supp. 743 (M.D. 

Ala. 1964) (three-judge court). 

The three-judge court was called upon again to 

consider whether the defendant state officials had continued 

to use their authority to perpetuates a dual school systam based 

upon race, and whether another tuition grant law, Title 52, 

§ 61(8), Code of Alabama 1940, was constitutional. At this time 

the plaintiffs sought a statewide desegregation order and an 

injunction against the use of state funds to support a dual school 

system. Thereafter, Governor George Wallace and Superintendent 

Austin Meadows informed the school systems throughout the Stata 

of Alabama that they should “take no action in the administration 

and execution of compliance plans which are not required by law 

or court order. . . ." Through “parables,” press releases to 

local newspapers, and fund-shutoff threats, these state officials 

exacted compliance from the local school boards, who promptly 

discarded their plans to desegregate the public schools in most 

of the counties throughout the State of Alabama. 

Confronted with this situation in 1967, this Court 

found that the state officials had engaged in a wide range of 

activities designed to maintain segregated public cducation 

 



  

  
  

  

throughout the State of Alabama, and that they in the past had 

exercised and at that time continued to exercise the final 

control and authority over all the public school systems in the 

state. This Court concluded that only the imposition of a 

statewide order, which at that time was made applicable to 

every school system in the State of Alabama not then under court 

order, would effectively achieve meaningful school desegregation. 

"Freedom of choice" was adopted as the court-imposed statewide 

plan. The court order was implemented through the State 

Superintsndent of Education, and the individual school boards 

and their members and superintendents were not made formal varties 

defendant at that time. Lee v. g B atc] 

267 F.Supp. 458 (M.D.Ala. 1967) (three-judge court). 

The next episode in this case occurred in August 1968, 

when this Court found it necessary to respond to motions for 

additional relief filed by the United States and the original 

plaintiffs. The motions presented at this juncture generally 

sought a court order abandoning "freedom of choice" on the basis 

of three Supreme Court cases decided May 27, thea Notwith- 

standing the Supreme Court decisions, which this Court found 

distinguishable on their facts, “freedom of choice" was reaffirmed 

as “the most feasible method to pursue” for the several schosl 

systems then involved in this case "at this time." In the 

same order, faculty desegragation and minimum student standards 

were ordered for each system. Lee v. Macon County Board of 

Education, 292 F.Supp. 363 (M.D.Ala. 1968) (three-judge court). 

Through subsequent orders, this three-judge court has amplifiad 

and modified the August 1968 order, and through a series of 

  

Ll/ Gxgen v. Countv School Board of New t County, 391 U.S. 430 
(1968): Rainey v. Board of Education of the Gould School District, 
391 U.S. 443 (1968), and Monroe v. Board of Commissioners of the 
City of Jackson, 391 U.S. 450 (1968). 

  

d=  



. 
uy Me. 
— . - 

-  —  — 

— 
gS | Ta BL     

orders commencing on October 14, 1968, and continuing through 

August 1969, has made the individual school boards, the members 

thereof and the superinta:ndents formal parties defendant in 

this proceeding. The case has, therefore, evolved into many 

separate school desegregation cases concerning school systams 

that are located in the three federal judicial districts of 

Alabama. The school districts located within the geographical 

limits of the Northern District of Alabama are listed, the 

dates these systems and the members of the boards of thesa systems 

were made parties defendant are set forth, and the current status 

with regard to each of these systems is given on Exhibit A 

attached to this order. The same information with regard to the 

school systems located in the Southern District of Alabama is 

given on Exhibit B which is attached to this order. This Court 

has now concluded that after a "terminal-type"” plan for the 

desegregation of a school system has been approved and ordered 

implemented with the commencement of the 1970-71 school year, 

the case, insofar as the school system wherein such plan has 

been approved, should be transferred for supervision and for all 

further proceedings to the United States District Court for the 

geographic area in which the school system is situated. 

Section 1404 (a), Title 28, United States Code, reads 

as follows: 

“For the convenience of the parties and 
witnesses, in the interest of justice, a district 

court may transfer any civil action to any 
other district or division where it might 
have been brought.” 

It is quite evident that the convenience of the parties 

and witnesses and the interest of justice would be better served 

by the decentralization of this case and the transfer of the 

separate school desegregation cases to the district courts having   
 



  

§ % a. : v 

regular jurisdiction over the areas in which the school districts 

are situated. See Norwood Vv. Kirkpatrick, 349 U.S. 29 (1955); 

1 Moore, Federal Practice. 1 0.145(5), p. 1786 (2d ed. 1967). 

The fact that these cases have proceeded to this point prior to 

transfer is immaterial. There is no question but that these 

desegregation cases against the individual school systems could 

have been brought in the United States District Court for the 

geographic area whersin each such school system is located. 

1 Moore, supra, § 0.145([6], pp. 1787-1800; 1 Barron and Holtzoff, 

Federal Practice and Progeduge, § 86.2, pp. 283-287 (Wright ed., 

supplement 1967). See also Wright, Federal Courts, § 44, PP. 

143-144. See also Vap Dusen v. Baryagk, 376 U.S. 612 (1964). 

Thus, the original two-party action, concerning only 

Macon County, that was commenced in this case in January 1963, 

has evolved into an entirely different action, with the United 

States as one of the plaintiffs, and the proceedings are now 

directly against the various school boards located throughout 

the State of Alabama. Therefore, both logically and legally, 

these are individual cases which could have been brought in the 

United States District Courts for the geographic arcas in which 

the school districts are located. This Court will, therefore, 

order transferred to the United States District Court for the 

Northern District of Alabama the cases against the school boards 

and individual members thereof, where terminal plans have been 

approved to be implemented with the commencement of the 1970-71 

school year, that are geographically situated in the Northern 

District of Alabama. The Court will order transferred to the 

United States District Court for the Southern District of Alabama 

the cases involving the school boards and the individual members 

. thereof, where terminal plans have been approved for implementation 

     



      

 _ 

effective with the commencement of the school year 1970-71, 

  

that are geographically situated in the Southern District of 

Alabama. As the other school systems are placed under terminal- 

type orders by this three-judge court, they will also be 

transferred to the district wherein they are situated. 

Accordingly, it is the ORDER, JUDGMENT and DECREE of 

this Court that the cases against the following school boards, 

their superintendents and their individual members be and they 

are hereby transferred pursuant to § 1404(a), Title 28, United 

States Code, to the United States District Court for the 

Northern District of Alabama: 

county systems 

Bibb 

Blount 

Cherokee 

Clay 

Cleburne 

Colbert 

Cullman 

DeKalb 

Etowah 

Fayette 

Franklin 

City systems 

Anniston 

Athens 

Attalla 

Carbon Hill 

Cullman 

Decatur 

Fort Payne 

Guntersville 

Jacksonville 

Jasper 

Mountain Brook 

Greene 

Jackson 

Lamar 

Lauderdale 

Marion 

Marshall 

Morgan 

St. Clair 

Tuscaloosa 

Walker 

Winston 

Muscle Shoals 

Oneonta 

Piedmont 

Russellville 

Scottsboro 

Sheffield 

Sylacauga 

Tarrant City 

Tuscaloosa 

Tuscumbia 

Winfield 

It is further ORDERED that the cases against the 

following school boards, their superintendents and their 

individual members be and they are hereby transferred to the 

United States District Court for the Southern District of 

Alabama: 

 



      

county systems 

Baldwin 

Clarke 

Dallas 

Washington 

it g 

Brewton 

It is further ORDERED that the Clerk of this Court 

forthwith physically transfer the court file of each of these 

cases to the Clerk of the appropriate United States District 

Court. 

37 
Done, this the 3/ "day of Lane 1970. 

ELE Fi A: 
UNITED STATES CIRCUIT JUDGE 

KH Gs peer 
UNITED STATES DISTRICT JUDGE 

UNITED — DISTRICT JUDGE =