Petitioner's Motion for Summary Judgment

    f)

IN

FOR

TTIE

THE

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA

MONTGOMERY DIVISION

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JULIA P. WILDER,

Petitioner,

against

EALON M. LAMBERT' JACK C. LUFKIN AND

JOHN T. PORTER IN THEIR OFFICAL
CAPACITIES AS MEMBERS OF TIIE ALABAMA
BOARD OE PARDONS AND PAROLES, AND

TED BUTLER, A PROBATION AND PAROLE
OFFICER, EMPLOYED BY THE ALABAIT{A
BOARD OF PARDONS AND PAROtES,

Civil Action No. 83-H-580-N

Respondents.

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PETITIONER'S UOTION FOR SUMMARY JUDGMENT

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 matter of Iaw.



I.
This motion is based exclusively uPon the claims raised in

paragraphs 17-21, 24 and 25 of petitionerrs habeas corPus peti-

tion. For the courtts convenienC€r 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.
ig-21 , @, insuff icient to inform petitioner of the
nature aftlTause of the accusation against her, as required
by the Sixth and Fourteenth Amendments'

18. The indictment against petitioner charges that
petit ioner:

.ICOUNT ONE

"did vote more than once, or did deposit
more than one ballot for the same office
as her vote, or did vote illegalIy or fraud-
u1ently, in the Democratic Primary Run-
off Election of SePtember 25, 1978 |

"COUNT TWO

"did vote more than once as an absentee
voterr oE did deposit more than one absen-
tee ballot for the sane office or offices as
her vote, or did cast illegal or fraudulent
absentee ballots, in the Democratic Pri-
mary Run-off Election of September 26,
1978,

"COUNT THREE

udid cast i11egal or fraudulent absentee
ballots in the Democratic Primary Run-
off Election of September 26, 1978, in
that she did deposit with the Pickens
County Circuit C1erk, absentee ballots
which-were fraudulent and which she
knew to be fraudulentr against the peace
and dignity of the State of Alabama. "

19. The indictment $ras constitutionally insufficient
because it, failed to provide notice of the charges submitted
to petitionerts jury Ls the basis for her conviction under
S ii-23-1. The inaiEtment accused petitioner of violating
S IZ-Z:-1 by "vottingl i11egalIy" or "castIing] i11egal '''

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absentee ballotsr" but it failed to identify either the
acts constituting the alleged illegalities or the elements
of the statutes which purportedly caused those acts to be
i1lega1. That failure deprived petitioner of constitution-
aIly required notice.

(a) The trial judge instructed the jury on
four statutes, AIa. Code S 17-10-3 (1975) [miscited by the
judge as S 17-23-31, Tr. 308-309; AIa. Code S 17-10-6
itgls) [miscited by the judge as S 17-10-71t Tr. 309-310;
AIa. Code S 17-10-7 (1975), Tr. 310-311; and Ala. Code S

13-5-115 (19751 | 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 onot authorized by ... or
:.. contrary totr any law would constitute an oi]1ega1" act
warranting petitionerts conviction under S 17-23-1. fr.
308. The eifect of that instruction and of the subsequent
instructions on each of the statutes listed in para. 19(a),
supra, vras to make each of those statutes a separate ground
ffiiability under S 17-23-1. lhe 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
Ju.y as required by the Constitutionr drd petitiongr'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 indictrnent alleged in Count I, in the
alternative with other allegations, that petitioner voted
fraudulently in the run-off. It alleged, in the alternative
with other lllegations in Count ff, 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 C1erk, and that she knew the ballots
r,rere f raudulent.

(b) In order to provide constitutionally reguisite
notice, the inoictmetlt was required to identify the particu-
lars of the allegeo fraud with sufficient specificity 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 tailure 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 allege accurately each
of the elements of S 17-23-1, and therefore failed to
provide the minimum notice required by the Constitution.

(a) In this case, fraud is a necessary element
of S 17-23-'t under the rules of Alabana ]aw set forth in
para. 16( a) , -ggpra,.

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

. (c) Since the verdict against petitioner was a
general verdict finding her "guilty as charged in the
indictmeDtr" Tr. 316, and since she was thereupon adjudged
guilty of one undifferentiated violation of s 17-23-1, the
iefic-ient 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. 16(aJ and 23(d), supra, were valid and operative
at tfre time of petitioner's-TEfa1, the instructions to the
jury impermissibly broadened the statute so as to create
ex post facto liability in violation of the Due Process
dG[lse;E-EEE Fourteenth Amendment as construed in Eouiq
v. Citv of Columbia, 378 U.S. 347 (1963). The instructions
toffipermissib1ybroadeneds13-5-115causing,
under the same principles, a separate violation 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
"itlegET-ioting 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 was subject to limiting constructions at the time
of petitionerts trialr these jury instructions abrogated
the constructions retroactively in violation of Bouie.

(b) section 13-5-'l 15 penalizes the making of a sstorn
statement required under the election laws "false1y and
corruptly', -- i.e., with criminal intent. The t,rial court
instructed the-jury that petitioner could be liable under S

13-5-115 for "fa}sely and incorrectly" making a required
statement. By substituting "incorrectly" for "corruptlYt'l
the instructions removed the intent element from S 13-5-1 15

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. Tr. 308, 311.
Therefore, as applied to petitioner, those statutes denieo
her due processl- especially inasmuch as they touched on
rights piotected by the Constitution. Petitionerrs convic-
ti6n stinds in violation of the Fourteenth Amendment."

II.

The only facts material to this motion are contained in the

certified transcript of the trial proceedings, submitted on

September 21 , 1983 by respondents as Exhibit, rtJ.tr Accordingly,

there can be no dispute as to any of the facts relevant to this

motion.

WHEREFORE, PREMISES CONSIDERED, petitioner Prays that this

Court grant Summary judgnent 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
Irlontgomery, Alabama 35108
262-7 337

JACK GREENBERG
LANI GUINIER

99 lludson Street, 16th Floor
New York, New York 10013
(212) 219- 1 900

Attorneys for Petitioner

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Of Counsel:

Anthony G. AmEterdam
N.Y.U. School of Law
40 Washington Square South
Room 327
New Yorkr New York 10012
(212) s98-2638

Siegfried Knopf
Suite 5060
555 California Street
San Franciscor CaLlfornia 94104

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