Motion for Leave to Intervene or for Leave to File Amicus Brief; Brief in Support of Motion; Tanner v. Mobile Complaint; Affidavits

    IN THE SUPREME COURT 

OF THE UNITED STATES 

  

CITY OF MOBILE, ALABAMA, et al., 

Appellants, 

vs, NO. 77-1844 

WILEY L. BOLDEN, et al., 

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Appellees,   

On Appeal From The United States Court 
Of Appeals For The Fifth Circuit 

  

MOTION FOR LEAVE TO INTERVENE 
OR IN THE ALTERNATIVE 

FOR LEAVE TO FILE AMICUS CURIE BRIEF 

  

Cones the Petitioners, Melba H. Tanner, George R. Irvine, 

Wallace Vickrey Harris, Larry A. Giardina, and Robert A. Beckerle, 

and move the Court for leave to intervene in this Appeal or, in 

the alternative, for leave to file an Amicus Curie Brief pursuant 

to Rule 24 of the Federal Rules of Civil Procedure and/or Rule 

42 of the Supreme Court Rules. The Petitioners further request 

permission to present oral argument, if the Court allows oral 

argument of the Appellees' Motion to vacate the District Court 

Order staying the election. 

In support of this Motion, Petitioners would show unto the 

Court: 

l. That your Petitioners, and those they represent, have 

a2 ‘substantial interest in continuing in force the District 

Court Order staying the election scheduled for November 21, 

1978, and supported by your Petitioners' Complaint, attached 

 



  

® * : 
2. z 

as Exhibit YAY filed on October 10, 1978, in the United States 

District Court for the Southern District of Alabama styled 

Melba H. Tanner, et al., Plaintiffs, vs. City of. Mobile, et al., 

Defendants, Civil Action No. 78-555-P. This Complaint contests the 

constitutionality of the disericring plan decreed by the Court in 

the proceedings of Wiley L. Bolden, et al., vs. City of Mobile, 

et al., in which the Appellees in such action have filed this 

Motion. This issue involves an important consideration of the i 

paramount concern of Aritcle IV, Section IV of the Constitution 

of the United States and the Fifth and Fourteenth Amendments 

of the Constitution of the United States for the deprivation of 

your Petitioners constitutional right to an equally effective vote, 

gs set out in your Petitioners Exhibit "A". i 

2... That the issue of the constitutionality of the district 

plan ordered by the Court in Bolden as to your Petitioners rights 

to an equally effective vote was not challenged nor considered 

by the Court in the Bolden case. That yous Petitioners were not 

parties in the Bolden proceeding and that a Brief on the Appellees’ 

Motion to Vacate the District Court Order 1s the only means your 

petitioners have to protect their constitutional rights to 

equal representation in the disposition of this Motion. That 

the granting of the Appellees' Motion to hold elections scheduled 

for November 21, 1978, will, as a practical matter, prevent the 

District Court from exercising jurisdiction of your Petitioners’ 

Complaint and will result in the holding of an election in 

derogation of the constitutional rights of your Petitioners, and 

all others similarly situated. ' Your Petitioners have a vital 

interest in protecting the rights of all citizens of the City 

of Mobile, Alabama, to have constitutional rights to an equally 

effective vote and because of this interest, your Petitioners can 

effectively address the difficult question posed by this Motion 

 



  

to vacate the District Court Order from the perspective of 

Article 1V, Section 1V of the Constitution of the United 

States, and of the Fifth and Fourteenth Amendments. Any 

Appellate ruling on this issue would either directly or 

indirectly affect your Petitioners. 

3. Your Petitioners respectfully request this Honorable 

Court to allow them leave to present their Brief and, if allowed, 

oral argument, in support of the District Court's Order staying 

the mayor-council election scheduled for November 21, 1978, 

to allow your Petitioners to present. their redistricting plan 

in the District Court, which said plan will neither discriminate 

on the basis of race nor deprive any citizen of his right to an. 

equally effective vote. | | 

4. Your Petitioners respectfully pray this Honorable Court 

will accept your Petitioners' Motion in its typewritten form 

rather than require a printed petition on the grounds that the 

Appellees, Wiley L. Bolden, et al., have ‘requested the Court 

take emergency action and rule on its Motion on Friday, October 

13, 1978; that your Petitioners have insufficient time to obtain 

printing of its Motion for filing with the Court by that date. 

- WHEREFORE, Your Petitioners respectfully request this 

Court to grant it leave to intervene or in the alternative to 

file an Amicus Curie Brief and, if allowed, to orally argue this 

case before the Honorable Court. 

Respectfully submitted this [| 4] day of Octo be i 1978. 
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  ph RICHARD W. VOLLMER, JR. 
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W. DEWITT REAMS oy hea       

  

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. ot ni 1 ['¢ ext v/ 77, 
Member of Court on which 7! AA AS Ne A 
service can be had. FRED WW. FILLIOR, JR. 

   Diy Ime 
  

     

  

STEPE FLYNX o yA i a 
TS OF COUNSEL: Attorneds for tition 

PILLANS, REAMS,  TAPPAN, WOOD, 
ROBERTS &§ VOLLMER, P.C. 

P.: 0. Box 8158 

Mobile, Alabama 36608 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that a copy of the foregoing Motion has 

been delivered to J. U. Blacksher, attorney for Appellees, 1407 

Davis Avenue, Mobile, Alabama, 36603, and Fred Collins, attorney 

for the Appellant, P. O. Box 16629, Mobile, Alabama, 36616, by 
}:} ~ £ 

  

  

First Class Mail on this Il 4). day of [/Ctolor 5 1978. 

¢ i Fl j Vd 4 Vd. // 

Lf FA EL AL folio vl 

RICHARD W. VOLLMER, JR. 

 



  

IN THE SUPREME COURT 

OF THE UNITED STATES 

  

CITY OF MOBILE, AIABAMA, et al., 

Appellants, 

Vv. NO. 77-1844 

WILEY L. BOLDEN, et anl., 

Appellees. 

  

On Appeal From The United States Court 
Of Appeals For The Fifth Circuit 

  

BRIEF IN SUPPORT OF PETITIONER'S MOTION 

TO INTERVENE OR IN THE ALTERNATIVE FOR LEAVE TO 

FILE AMICUS CURIAE BRIEF 
  

  

PETITIONER SHOULD BE ALLOWED TO INTERVENE 

Petitioners meet all of the requirements for inter- 

vention of right set out in Rule 24, Federal Rules of 

Civil Procedure. Petitioners respectfully refer the 

Court to the attached copy of their Complaint for the 

factual basis of this statement. In an unusual case 

Appellate Courts may allow intervention. Hurd v. Illinois 
  

Bell Tel. Co., 234 F.2d 942 (7th Cir. 1956); Moore's 

Pederal Practice, Vol. 3B, page 24-528 (1978). 

  

  

 



  

Petitioners submit that this is such an unusual 

case that their rights are in serious danger unless 

their unique position is represented before the Court 

in this case. 

1X. 

PETITIONERS SHOULD BE ALLOWED TO FILE AMICUS 
_CURIAE BRIEF 
  

The above statement is true for the following 

reasons. 

The intervention of an amicus curiae has been 

allowed for the purpose of a full and complete pre- 

sentation of questions of general or public interests 

involved in proceedings before the Court. Robinson v. 
  

Les, 122 7. 1010, affirmed 25 S.Ct. 180, 195 U.S. 64, 

49 L.Ed. 388. 

Intervention by a person as an amicus curiae is 

justified only om he can show the Court that to pro- 

tect it in the consideration of the case, such aid 

Seems necessary or advisable...where matters of public 

concern.are involved, he Courts exercise great liberality 

in granting leave to appear....3A CJS, page 424. 

Respectfully submitted, 

PILLANS, REAMS, TAPPAN, WOOD, 
ROBERTS & _VOI.IMER, P.C. 

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By ™ AL Nr LL al 
/Richard W. Vollmer, Jr. 

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Stephen J. Flynn a AP Sa 
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CERTIFICATE OF SERVICE 
  

I do hereby certify that on this lh aay of 

October, 1978, I served a copy of the foregoing Brief 

in Support of Petitioner's Motion to Intervene or in 

the Alternative for Leave to File Amicus Curiae Brief 

upon counsel of record, by depositing same in the 

United States Mail, postage is 

  

 



  

MELBA H. TANNER, GEORGE 

in any State." (emphasis added). 

== mn, a ro- aries An pr 

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION   

  

  

  

| ) R. IRVINE, WALLACE ) 
VICKREY HARRIS, LARRY ) 
A. GIARDINA, and ROBERT ) 
A. BECKERLE, ) 

: . ) 
Plaintiffs, ) 

Ci | : i ) ET 
VS. | 3 CIVIL ACTION NO. 

CITY OF MOBILE, ALABAMA; ) 
ROBERT B. DOYLE, JR., ) 
GARY A. GREENOUGH, and ) 
LAMBERT .C. MIMS, indi- ) 
vidually and in their ) 
official capacities as ) 
Mobile City Commissioners, ) 

| i ) 
Defendants. ) 

COMPLAINT 

xX. 

Jurisdiction 
  

This Court has original jurisdiction of this action pursuant 

to 28 U.S. Code, Sec. 1343 (3),(4), and 1357. 

"Section 1343. The district courts shall have original jurisdiction of any civil action authorized by law 
to be commenced by any person: | 

"(3) To redress the deprivation, under color of any 
State law, statute, ordinance, regulation, custom, 
or usage of any right, privilege or immunity secured 
by the Constitution of the United States, or by any 
Act of Congress providing for equal rights of 
citizens or of all persons within the jurisdiction 
of the United States: : 

"(4) To recover damages or to secure equitable or 
other relief under any act of Congress providing 
for the protection of civil rights, including the 
right to vote. % 

"Section 1357. The district courts shall have 
original jurisdiction of any civil action commenced 
by any person to recover damages for any injury 
to his person or property on account of any act 
done by him under act of Congress for the protect ivn 
or collection of any of the revenues, or to enforce 
the right of citizens of the United States To vote 
  

  

  

 



  

The Plaintiffs have a right to bring this suit pursuant 

20 the Civil Rights Act of the United States, 42 United States 

Code, Sections 1983, 1988, and The Federal Declaratory Judgment 

Act, 28 United States Code 2201, 2202. 

42 U.S. Code, Sec. 1983: "Every person who, 
under color of any statute, ordinance, regula- 
tion, custom, Or usage, of’ any State or Terri- 
tory, subjects, or causes to be subjected, any 
citizen of the United States or other person 
within the jurisdiction thereof, to the depriva- 
tion of any rights, privileges, or immunities 
secured by the Constitution and laws, shall be 
liable to the party injured. in any action at law, 
sult in equity, or other proper proceeding for 
redress. 

nsec. 1988, The sartsdiction of civil and 
criminal matters conferred on the district courts 
by the provisions of this chapter and Title 18 
for the protection of all persons in the United 
States in their civil rights and for their 
vindication, shall be exercised and enforced in 
conformity with the laws of the United States, so 
far as the same are suitable to carry the same 
into effect; but in all cases where they are not 

. adapted to the object, or are deficient in the. 
provisions necessary to furnish suitable remedies 
and. punish offenses against law, the common law, 
as modified and changed by the Constitution and 
Statutes of the State wherein the Court having 
jurisdiction of such civil or criminal cause is 
held, so far as the same is not inconsistent with 
the Constitution and Laws of the United States, 
shall be extended to and govern the said court 
in the trial and disposition of the cause, and, 
if it is of criminal nature, in the infliction 
of punishment on the party found guilty.. 

28 U.8. Code, Sec, 2201. "In a case of actual 
controversy within its jurisdiction, except with 
respect to federal taxes .other than actions 
brought under Section 7428 of the Internal Revenue 
Code of 1958, any court of the United States, : 
upon the filing of an appropriate pleading, may 
declare the rights and other legal relations 
of any interested party seeking such declaration, 
whether or not further relief is, or could be, 
sought. Any such declaration shall have the 
force and effect of a final judgment or decree, 

and shall be reviewable as such. 

28 U.S. Coda, Sec. 2202. "Further necessary or 
proper relief based on a declaratory judgment or 

decree may be granted after reasonable notic 
and hearing against any adverse party whose rights 
have becn determined by such judgment." 

 



rel oe -3- p 

  

This case arises under the Constitution of the United States, 

particularly Article IV, Sec. 4, and the Fifth and Fourteenth 

Anendments.. 

.Constitution of the United States, Article 1V, 

Sec. 4. "The United States shall guarantee to 
every ‘State within this Union, a Republican Form 
of COVERRNORnt sets » | 

  

Constitution of the United States, Amendment Five: 
"No person shall...pe deprived of life, 1iberiy or 
property, without due process of law... 

  

Constitution of the United States, Amendment 
Fourteen: "No State shall make or enforce any law 
which shall abridge the privileges or immunities 
of citizens of the United States; nor shall any 
State deprive any person of life, liberty or 
property, without due process of law; nor deny 
to any person within its jurisdiceion the equal 
protection of the laws. 

  

  

Il. 

Parties. 

Plaintiffs, Melba H. Tanner, George R. Irvine, Wallace Vickrey 

Harris, Larry A. Giardina, and Robert A. Beckerle, are Sach 

citizens of the United States and of the State of Alabama, and 

of the City of Mobile, and are registered and Qualified voters 

in said City and ave entitled to vote in municipal elections. 

Each of the Plaintiffs are residents of City Council District 

7. District 7 is one of the nine districts for the election of 

members of the City Council of Mobile decreed by the Honoratite 

Virgil Pittman on the 9th day of March, 1977. Plaintiffs are each 

over the age of Tyontys one (21) years. | = 

Defendants, Robert: B. Doyle, Jr., Gary A. Greenbugh, and 

Lambert C. Mims, are each citizens of the Untied States, and of 

the State of Alabama, and of the City of Mobile. Each is over 

the age of twenty-one (21) years. The Defendants sre *he duly 

elected City Commissioners of the City of Mobils, and as such, 

are charged with initiating, supervising, and coordinating nunicipal 

elections ordered by the Honorable Virgil Pittman on the 9th day 

of March, 1977 

 



  

  

   
111. 

Class Action. 
  

Plaintiffs bring this action on their own behalf and 

on behalf of all other persons, similarly situated pursuant 

to Rule 23 (a) and 23 (b) (1) or (2), ‘Federal Rules of Civil 

procedure. The Class which Plaintiffs represent is composed 

of all voters residing in under-represented City Councilmen 

Distyicts of the City of Mobile, Alabama. All such persons 

have been, are being, and will be adversely affected by ihe 

Defendants’ conduct of elections complained of herein.’ There 

are common questions of law and fact affecting the rights 

of the members of this class who are, and continue to be, 

deprived of equal protection of the law because of the Defendants’ 

failure to provide the court with the most accurate, recent 

population data available for the different districts in Mobile, 

which would have assured the Plaintiffs and the class they represent 

an equally effective vote in City council elections. As a direct 

result of the Defendants’ failure to provide the Court with the 

most recent, accurate data on population within the districts, the 

Plaintiffs and the class they represent have been deprived of their 

constitutional right to an equally effective vote. ‘The persons 

are so numerous that joinder of all henbers 1s impractical. There 

are questions of law and face common to Plaintiffs and the class 

they represent. The claims of the Plaintiffs ‘are typical of the 

claims of the class. The interests of said class are. fairly 

and adequately represented by the named Plaintiffs. Prosecution 

of separate actions by individual members of the class would 

contain a risk of inconsistent Ox varying adjudications with 

respect to individual members of the class which would ensabi inh 

incompatible standards of conduct for the hat enTinne. The 

prosecution of separate members of the class would create a risk 

of adjudications with welpoct to individual vebiers of the class 

vhich, as a matter of fact, would be dispositive of the other 

. members not parties to the adjudication or substantially impair 

 



. » - iv i 

. . 

polit. . " 

» . * . 
. - : : 

. . ; 

. 

  

or smpeds their ability to protect their interests. The 

Defendants have acted, or refused to act, on grounds generally 

applicable to the class, thereby making appropriate injunctive 

relief and corresponding declaratory relief with respect to the 

class as a whole. | 

iv, 

  

Nature of Claim 

A. The Mobile City Comptes lon is the governing body of the. 

City of Mobile, holding the legislative power granted to cities. 

In addition, its members Sevforn certain administrative and | 

executive functions, including the atninistrasion of municipal 

elections. Alabama Code Sections 11-46-90 = 11-46-144 (1975), 

formerly abana Code Title 37, Section 3420) ~ (72) (1973 

. Cumulative Supplement) 

B. The Plaintiffs make no. attack on the present City 

Commission form of government, in which the three commissioners 

who form the boveraing body of Mobile are elected at large. 

This form of goverment does not violate the Plaintiffs' rights 

to an equally effective vote. 

C.. On Juns 9, 1975, a group of pack Mobile citizens 

filed Bolden vs. City of Mobile, Civil Action No. 75-297-P, 
  

in the United States District Court for the Southern District 

of Alabama, Southern Division. The Plaintiffs in folden 

sued the City of Mobile and the Defendants in this case, the 

City Commissioners, seeking to have the formiof sovernment in 

Mobile declared unconstitutional. 

D. On October 21, 1976, the Honorable Virgil Pittman 

entered a dec iston in the case, finding that the system of 

electing City Commissioners in Mobile discriminated against 

black citizens of Mobile and decreed that a Mayor-Council plan 

of sovernment be adopted by the City with nine single member 

 



2 e owes » 

  

Council Districts. Bolden vs. City of Mobile, 423 F. Supp 384 
    

(October 21, 1976.) Judge Pittman's decision was affirmed by the 

United States Court of Appeals for the Fifth Circuit. - Bolden vs. 
  

  

City of Mobile, 571 F.2d 238, (March 2, 1978.) Judge Pittman 

requested tht “ehd Plaintiffs and Defendants in the Bolden case, 

supra, submit proposals for the nine councilmen districts. 

Eo The pefendants "in this action declined to submit a 

plan for nine councilmen districts. The Defendants failed to 

provide the Court with the most accurate, recent population ate 

available for the different districts in Mobile. As a direct 

result of such failure, the nine councilmen districts decreed 

by the Coset on March 9, 1977, are based on population figures 

provided by the 1970 Federal Decennial Census. This was not the 

‘most recent and accurate available data for population within the 

dis tricts. | 

In 1975, the Mobile Planning Commission conducted a house 

count of every dwelling unit in thie City of Mobile. This house 

count reflected rapid residential development since 1970 in 

District 7. Because the 1975 Mobile Planning Commission house 

count did not ascertain the number of persons occupying each Zueliing 

unit in the City of Mobile, “this panitiation statistic was acquired. 

from another source. op 1975, the City of Mobile obtained a survey 

from the R. i; Polk Company, known as Profiles of Change. This 
  

study is = by-product of R. L. Polk's City Directory conpliation, 

which is based on interviews with residents of over 80% of Mobile's 

households. The Profiles of Change report indicates average 
  

household size for each census tract in the City of Mobile. 

‘Using the R. L. Polk Company average household size data and the 

1975 City Planning Commission house count, the Mobile City Pianning 

Commission has estimated population as of 1975 for - 
- =

 each of Mobile's 

current voting wards. When aggregated into council districts, 

the City Planning Commission data indicates the following 1975 

population figures for each district as compared to the 1970 Federal 

DeCennial Census: 

 



  

  

  

  

  

=7- 

DISTRICT POPULATION % OF CHANGE 1975 DEVIATION 
11970 1975 oe | FROM AVERAGE 

v 21,279 Fis, nes 2 7.7 =. 11.2 
2 Wr 20,786 2. 19,650 He 5.5 - 11.6 

OE 21,124 18,987 -10.1 Tl tae 
4 i 21 38% 13.643 00 12.0 16.3 
5 20.836 15.187. wigs Pree Oi TT 
6 21,203 22,202 + 4.5 - 00.1 
7 20,958 32.550 +5%.3 + 46.5 
8 21,423 25,715 +20.0 +.15.7 

9 21,305 23,376 + 9.7 eT 

Fr, As of 1975, the most ‘populous district was district 

7, while the least populous disteioe was district. 4. In 

1975, based on the City’ S population of 200 »025, the averane 

district should have contained 22,225 persons. The popula- 

‘tions of the nine council districts vary from a population of 

32,550 in district 7, which is 46.5% above the optimum’ 3 

population of 22,225 per council seat, to a population of 

18,643 in district 4, which is 16.1% below the opLiman, 

The difference in ‘population Detween the largest and smallest 

council district i3 62.6%. The ratio of the largest district 

(7) to the smallest district (4) is 1.75 to 1. Because of the 

disparities, only 48.1% of the population could elect 5 of the 

9 councilmen. If the districts contained equal population, 

nearly 56% of the population would be roquived to elect a. 

council majority. 

G. The nine councilmen districts decreed by the Court 

on March 9, 1977, are based on population figuies provided 

by the 1970 Federal Deconnint Census. In the etuhi years 

that have passed since the 1970 Congus, population shifts in 

the City of Mobile have rendered the 1970 census obsolete, 

“inaccurate, and unconstitutional as a basis for apportionment. 

 



® x 2-0 @ 

  

When the nine council districts are analyzed with 1975 

Mobile City Planning Comnission population data, it becomes 

clear that the City Conniil Districts have substantial and 

constitutionally impermissible variations of population. 

H. Districts 1 through 5 lost population from 1970 to 

1975. These districts encompass the City's waterfront downtown, 

industrial, and older residential areas. In contrast, district 

6:75 2.469 embrace Mobile's western area in which ample land is 

available for residential development. Each of these districts 

gained population from 1970 to 1975. | 

I. Plaintiffs expect to offer testimony from expert Wiinesses: 

employed by John H. Friend, Inc. John H. Friend, Inc., is an 

economic and. market research firm which has studied population 

trends in the Mobile area since 1962. Experts from John H. Friend, 

the. have reviewed the Mobile City Planning Commission .1975 

population estimates and consider them to be a more accurate 

index of Mobiles current population distribution than the 1970 

Federal Pecetnial Consus’ These experts are of the opinion that 

the growth of district 7 has continued and accellerated since 

1975 at a rate greatly in excess of any other district. in the City. 

J. Plaintiffs expect to provide the Court ‘with expert: 

testimony from Mr. Morton higyer, who retired from his. position as 

Chief of . he Seography.| Division of the United States Bureau of 

the Census to work as an independent’ consultant in statistical 

data processing. Plaintiffs expect to show that Mr. Meyer is 

fully familiar with the census, and for a time served as 

Assistant Chior of the Population Plviston of the United States 

Bureau of the Census. Plaintiffs expect Mr. Meyer to testify 

"that the 1970 census is out of date, being eight years old last 

April: lst, Plaintiffs expect Mr. Meyer to testify that shifts 

and growth in population since 1970 have invalidated the 1970 

census fisures. As proof of the obsolescense of the 1970 Census 

as an index of current population distribution, Plaintiffs expect 

Mr. Meyer to testify that the United States Census Bureau made new 

 



  

® Sai We ® 

" population estimates for all local governments in the United 

States in 1975. Plaintiffs expect Mr. Meyer to testify that 

the United States Government used the most fecont census bureau 

population estimate for federal revenue sharing purposes, and 

did not use the 1970 census figures. Plaintiffs further expect 

Mr. Meyer to testify that the Office of Management and Budget 

decreed that the most recent United States census buses population 

estimate be the official population estimate for all governmental 

purposes whenever a statute leaves choice of population data to the 

discretion of the federal agency involved. Pron this testimony, 

Plaintiffs expect proof that the 1975 population data referred to 

herein is far more accurate than the 1970 census as an index 

oF population, and should have been made. available to the Court 

by the Defendants for. districting purposes. 

K. As of 1975, the difference in population between the 

largest council district (district 7) and the smallest council 

district (district 4) was 62.6%. This disparity is clearly 
unconstitutional. In Chapman vs. Meier, 420 U.S. 1 (1975), 

  

the Supreme Court of the United States held thet a Court ordered 

apportionment plan was unconstitutional when it contained a 

20% population variance between the largest and smallest districts. 

On May 31, 1977, the United States Supreme Court decided that 

a District Court's yespporiionne nt plan: under which there were 

maximum population deviations of 16.5% in the Senste dideetees 

‘and 19.3% in the house districts, failed to meet the requirement 

of the Fourteenth Anendnent Ss Equal Protection Clause that 

legislative districts be as nearly of equal population as is 

practicable. Connor vs. Finch oY. 5; s 52 L. Eq. 
  

2d 465, 05.8 Cp. 1828 (1977). This requirement applies to local 

  

government units. U.G. Abate vs. Mundt, 403 U.S. 182 (1971): 

aslo vs. Junior College District, 387 4.8. 56 (1970) 7 and 
      

  

Avery vs. Midland County, 390 U.S. 474(198). 

L. The initial apportionment of a City into districts should 

be based on the most recent, accurate population data available, 

.and not on an eight year old census. County of Clark vs. City of 
  

  
    

 



  

Las Vegas, 550 P. 2d 778 (1976). 
  

The apportionment plan approved 

by the United States Supreme Court for a County Legislature was 

based on 1969 population figures, rather than the last decennial 

census. Abate vs. Mundt, 403 U.S. 182, at 184. (1971). The United 
  

States Supreme Court affirmed the holding of a Federal District 

Court that if there is clear, cogent and'convincing evidence that 

the 1970 census population figures are no longer valid, then 

apportionment should be based on the nost recent, accurate data. 

  

Dixon vs. Hassler, 412 F. ‘Supp 1036 (W.D. Tenn.) (1976), affirmed 

  

sub. nom. Republican Party of Shelby County vs. Dixon, 429 U.S. 

‘934 (1976). The Honorable Virgil Pittman decreed in Bolden vs. 
  

  

City of Mobile that, "the nine district councilmen shall be elected 

from districts which shall be, as near as practicable, of equal 

population according to the last Federal Decennial Census. - 

  

‘Bolden vs. City of Mobile, Order of October 21, 1976, Appendix, 

Section 9, page 4. 

M. Plaintiffs expect to offer dite evidence clear, cogent, 

and convincing proof that the 1970 census figures are no longe x 

Yoiid to show popalation distribution in Mobile. Plaintiffs further ; 

expect to prove that substantially more recent and accurate 

population data on Mobile is avaliable. 

5, N. Plaintiffs will provide by Amendment addtional substantiating 

population data which 1s: not ‘available at the time of the filing 

of this Complaint. as soon as such data is available. 

O.-' Plaintiffs will submit a plan for nine single member 

districts that will neither discriminate on the basis OT Tace nor 

deprive citizens of their right to an equally effective vote. 

Plaintiffs plan will significantly reduce the present unconstitutional 

population disparities among the districts, while at the sam2 time 

assuring that no citizen will be excluded from participation in’ 

City government on the basis of race or color. Plaiatifrs 1Vy 

present the. Court with this feasible and statistically 

equitable plan within two weeks from the date on which this 

Complaint is filed. 

 



re a ma EE ———. - NE 

-11- 

  

P. «Plointiffs, as Citizens of the United States, and 

as citizens and registered, qualified voters of Mobile City 

Council District 7, have a Tight to cast votes that are 

equally effective with the votes of every other citizen of 

Mobile; but Plaintiffs avers that by virtue of the invidi 

discrmination practiced -by the Defendants' failure to provide the 

Cont with the most recent population Statiseics the votes of 

the Plaintiffs are not as effective as the votes of voters 

residing in other council districts in Mobile. 

Q. Plaintiffs aver that when the ineqiatizties in the 

above mentioned initial apportionment of Mobile into council 

districts are considered, they result in a distortion of the 

constitational requirements as established, defined and guaranteed. 

by the Fifth and Fourteenth Amendments to the Constitution | 

of the United States, and that this distortion denies to 

Plaintiffs the equal protection of the law. 

| R. Plaintiffs further aver that when the inequali- 

ties in the above mentioned initial apportionment of Mobile 

are considered, they result in a distortion of the Consti- 

tastonm requirements as established, defined, and slnrentind 

by Article IV, Section lV, of the United States Constitution, 

and Has RLS distortion denies to Plaintiffs a Republican form 

of government. : 

S. Plaintiffs and all others similarly situnted are. 

suffering $vrépuvalle injury to their aforesaid rights 

by reason of the facts alleged herein. They have no plain, 

adequate or complete remedy to redress these wrongs other than 

by this sult for declaratory judgment and injunctive relief. 

Any other remedy would be attended by such uncertainties and 

delays as to deny substantive relief and would cause further 

irreparable injury, damage and expense to Plaintiffs and all 

others similarly situated. 

 



Wy 

  

T. Unless this Court grants the relief prayed for herein 

the result will be the helding of an election in derogation 

of the constitutional rights of the. Plaintiffs and all others 

similarly situated. Under the present plan, there will be no 

reapportionment of the nine districts until after the publication 

of the 1990 Federal census. Bolden vs. City of Mobile, Order of 
  

October 21, 1976, Appendix A, Section 92(1), page 47. Elections 

scheduled on the basis of reapportioned districts will not take 

place until October, 1995. Bolden vs. City of Mobile, Order of 
  

October 21, 1976, page 2, as modified by Order of May 31. 1978. 

Plaintiffs and other similarly situated will be denied fair 

wepreventation in the halls of their city government for a 

period of over sixteen years. During this period, legislative 

“action and inaction will occur which will affect the most 

| fundene ntal interests of the Plaintiffs and others sinila: ly 

situated. The unconstitutionally elected count Liven are 

responsible for essential municipal services directly affecting 

the health and welfare of ‘said Plaintiffs. The Council will be 

responsible for public safety, the administration of tax monies, 

and for the protection of the constitutional liberties of said 

Plaintiffs. Said Council will have responsibilities and. influence 

over Federal programs designed to meet pressing social and 

economic problems of many of Mobile". s citizens. Plaintiffs 

and all others similarly situated have a constitutional right 

to representation, which right will be denied, and the 

restoration of which cannot be permitted to await. action until 

~afrey 1983, | 

U. The Plaintiffs, the class they represent, and every 

U. §. citizen is entitled to. the due process and equal protection 

of tho law which Stemi Leon the "American ideal of fairness in 

the treatment of all. Plaintiffs aver that the United States 

Constitution, and more particularly the Fifth and Fourteenth 

 



  

a : 
. . . 

bd ® 8 -13- 

Amendments are designed to protect the individual fron the 

invasion of his rights, privileges and immunities by the 

Federal and State governments respectively. A human bets has 

an inherent right to equal protection and due process of law. 

The present nine disrict plan 1s violative of the spirit of the 

p
e
 

Constitution. Plaintiffs pray the Court to immediately prevent 

the violation of these basic human rights. 

¥. 

Prayer for Relief 
  

WHEREFORE : Plaintiffs on behalf of themselves and 411 

others similotly sitheted, verpecstully poh this Court to advorce 

this case on the docket, order 2" speedy hearing at the eariiest 

practicable date, cause this case to be in every way expedited, 

and upon such hearing to: | 

1. Grant Plaintiffs and the class they represent a 

declaratory judgment that the election system complained of 

herein violates the Fifth and Fourteenth Amendment to the 

Constitution of the United States, Article iv,’ ection 1V, 

of the Constitution of the United States , and 42 United 

States Code, Sections 1983 and 1988. | 

<2... Grant Plaintiffs and the class they represent an order 

enjoining the" Defendants, their agents, ‘successors, attorneys, 

and those acting in concert with them and at their direction, 

from holding, Stpekvising. or certifying the results of any 

election for the Mobile City Council under the present 9 District 

system, and from falling to adopt a plan of approximately 

equipopulous districts, or some other plan which protects 

Plaintiffs’ rights to one-person-one-vote. : 

3. Award Plaintiffs and the class they represent 

their costs in this action, including an ne! for reasonable 

attornoys? fees, 

 



o a. oo ® 

  

4. Grant such other and further equitable relief as 

the Court may deem just and proper. 

  
  
  

7Y 
- 7 = - 

: : / J ; ’ 2, - 

cla f ih v7, 2 
Tye! ves / AAT 

RICHARD W. VOILIER = JR. Mia 

  FRED W/ KILLION, JR. 

    7 Yor; 
STEPHEN 'NN 7 i 
Ty Sai 7 
P.O. Box'8158 
Mobile, Alabama 36608 

  

OF COUNSEL: 

PILLANS, REAMS, TAPPAN, WOOD, 
ROBERTS § VOLLMER, P.C. 

Defendant may be served by service on Lambert C. Mims, individua ally 
and for the City of Mobile, Robert B. Doyle, Sree and’ Gary A. 
Greenough at Mobile City Hall, Mobile, Alabam 

 



  

AFFIDAVIT 
  

LARRY A. GIARDINA, being duly sworn, deposes and says: 

1. I am one of the plaintiffs herein, and am fully 

familiar with the facts in this matter. 

2. I submit this Affidavit in support of a motion 

For an injunction pursuant. to Rule 65 of the Sedaval Rules of 

Civil Procedure enjoining Golendants from holding, supar— 

vising, or certifying the results of ‘ony election for the 

Mobile City Council under the present 9 district system, and 

from failing to adopt some plan which protects the rights of 

the citizens of vobile to cast votes which are squally 

effective with the votes of every other citizen. 

3. | Xhave resd ithe AEfLdavit of Grady Charles 
Lloyd. | | | 

4. The plaintif fs in his case are registered 

voters - and residents of city council district 7, decreed by 

Judge Pittman on March 9, 1977. 

5. I am personally fapiliax ith the tremendous 

growth that hos taken place in the area of Mobile which is 

now district 7. and I am of the opinion that district 7 contains 

far fore people than any other district, and that, under 

Judge Pittman's present plan, the residents of Misteicn 7 

are severely underrepresented. | | 

6. I qualified to run as a candidate for council 

district 7. I would prefer to see L%e ioteoiions postp ponead, 

because the citizens in my district would only have half ha 

representa ion of citizens elsewhere in *obile. 

7. The population figures upon which my complaint 

is based, and which I have exanined, confirm my knowledge 

from experience that ‘aistrict 7 is fay larger than any of 

 



  

the other districts. I belive this data is Sontite: I 

further believe that the 1970 census is no longer a valid 

means of determining population in Mobile. 

8. Injunction is necessary and proper in the 

circumstances of this Basa. Unless the City Commissioners 

are immediately enjoined from continuing with the municipal 

elections, I and a1 other citizens qualified to vote in 

- istrict 7, will suffer irreparable damage to our pigne 

to 5 Squally effective vote. 

9. No other ‘provisional Kenedy has been: secured 

or sought in this action and no prior applicasion has been 

made for the same or similar relief as is sought herein. 

  LARRY A. GIARDINA 

STATE OF ALABAMA 

COUNTY OF MOBILE 

| I, the Indersigned Notary Public, in and for said 

State and County, ‘hereby certify that Larry A. Giardina, 

whose name is signed to the foregoing ACEIGRVIE, "ond wie is 

knows to me, acknowledged before me this day that, being 

informed of the contents of. said document, he executed t 

same voluntarily on the i the same bears date. 

hy
 Given vader my hand and seal this the day o 

    

, 1978, 

  

  Notary Public 

 



  

AFFIDAVIT 
  

GRADY CHARLES LLOYD, being duly sworn, deposes 

el, Xam the President of John H. Friend, Inc.. 

John H. Friend, Inc. has been retained as a consultant for 

she plaineilify in this sul for the purpose of developing 

statistical data on population trends as they relate to the 

Mobile City Council Districts decreed by Judge Virgil 

ittman. 

2. John H. Friend, Inc. is an economic and market 

. research firm established in Mobile in 1952, The firm Son 

ducts studies of population and economic trends similar in 

general nature to the task undertaken herein. 

3. +X graduated from £78 Dnivereiiy of Virginia with 

- a’ BJA in Government and Foreign Affairs. My training 

specialized in the quantitative analysis of political data, 

including voting analysis and survey research. I xSSosinbed 

with John H. Friend, Inc. in 1969 and have since participated 

fully in the complete range of studies undertaken by the 

firm. | 

er 45 John HH, Priend, Inc. is considered by public and 

cormeraial clients to be a reliable ‘source of economic data, . 

including population. This oh Atien data is regularly. used 

by private clients as the basis for major investment de- 

cisions, In addition, the South. Alabama Regional old 

ning Commission hired the firm Lo develop populat 

which serve as a basis for numerous governmental planning 

wiplionninng. 

  

ion projections



  

5. John H. Friend, Inc. has previously been in- 

volved in the case of Bolden vs City of Mobile. ‘This in- 
  

» 

volvement took place in the following manner. Judge 

Virgil Pitinon’s order of March 9, 1977, divided the City 

of Mobile into 9 Councilmen Districts. The Council District 

- homdaxies split 5 of Mobile’ s existing voting wards. 

ConSeqIenily, it Pecans necessary to conduc t door to door 

canvasses so that the Board of Registrars could reassign 

voters to the new polling places. John H. Friend,Inc, was 

retained by the City of Mobile and the Board of Registrars 

“and approved by the Court to conduct these eg 

Judge Pittman ageepres the data thus provided hy John H. 

Friend, Inc. and this data was used in the implementation 

of the Judie) Ss order. 

6. As a result of my participation in the firm's 

studies over the past 9 years, I am well familiar with bot 

popilation aids in the City of Mobile, and the techniques 

used in determining and analyzing these trends 

= 7, I am familiar with both the data and Presdaror 

used to estimate population by countil Sisteloes in the 

Grunt hand. . I. am satisfied that grouth trends and shiit- 

ing PRE Cations in the City of Mobile have rendered 

obsolete the original Council District plan decreed by Judge 

Pittman on March 9, 1977. Although the 9 Council Districts 

he 
contained approximately equal population in 1970, analysis 

of data provided by the lobile City Planning Commission re-— 

veals that major disparities in population between the 

 



  

Council Districts had emerged as early as 1975 

can be seen from an examination of Table TI. 

  
  

  

“TABLE I 

DISTRICT POPULATION . % OF CHANGE 
1970 3875. 

1 21,275 19,745 i Re 

2 | 20,788 19,650 - 5.5 

5 Sana ween ga -10.1 

4 21,185 18,643 | | -12.0 

5 20,936 19,157 -° ~: 8.8 

6 123,294 22,202 + 4.3 

7 20,958 32,550 +55.3 

8 $21,423 25,715 | +20.0 

9 21,305 | 23,376 | + 9.7 
  186,756 "TEES 

As shown in Table I, five of the 9 Council Districts ex- 

perienced population losses between 1970-1975, while four 

districts experienced population increases. The rorgest in- 

crease occurred in Council District 7, in which population 

increased by 55% during the five year period.’ 

3 8. In 1975, based on the City's population of 

200,025, the average alseriot SHOUT we contained 22,225 

phrSons: Of the nine districts, however, only phe was within 

5% of hie ideal 22,225. On an average, the districts avia- 

ted by 15% from the optimum 22,235. The deviations ranged 

from 46.5% over the average, as, for example, in district 

7, to 16.1% below the average in district 4, indicating a 

total @eviation or range of 62.6%. The findings are set out 

in Table II. 

 



A
a
n
 

AA
 

A 
L
T
 

PH
A 

S
0
3
0
 

W
R
E
A
A
N
A
 : 

   

  

  

* 

Rll IIIS Ee rr Wp Ye Toe oh di i   

    

"TABLE II 
  

  

  

  

  

DISTRICT TOTAL POPULATION DEVIATION FROM | an AVERAGE 
1 | Wad wit 
3 19,680 ~ 3118 

A. : 18,987 | 32.5 
i 15,8430 v . aay 
nee 39,007 - 13.8 
6 be 22,202 - 00.1 

4 vy whi apiane Ga . + 46.5 
gna Sead TI a 
9 RR an age EL py 

The ratio of the largest district (District 7) tc the 

smallest district (District 4), is 1.75 to 1. Because of 

the disparities, only 48.1% of the population could elect 

5 of the 9 Councilmen. If the districts containsagd equal 

population, nearly 56 ow
 of the population would be reguired 

to elect a council majority. 

9. Thus, it is my opinion that the currently de- 

fined Council Districts contain grossly unequal copulations 

-a8.0f 1975. he trends evident from 197C - 1975 have con- 

tinued since 1975 up to the present time. It is my opinion 

that if City-wide data were availahle for 1978, it would 

reveal even greater disparities in the districts than 

existed in 1975. 

    

  GRADY CHARLES LLOYD 

4 

 



  

STATE OF ALABAMA 

COUNTY OF MOBILE 

I, the undersigned. Notary Public in and for said 

State and County, hereby certify that GRADY CHARLES LLOYD, 

whose name is signed to the foregoing Affidavit and who is 

known to me, acknowledged before me this day that, being: 

informed of the contents of said aocument, he executed the 

same voluntarily on the day the same bears date. 

Given under my hand and seal this ° day of 

  

+ 1978. 

  

Notary Public, Mobile County ,Alabana 

 



  

: 
Rl 

- 
; 

AFrIDAVIT IN SUPPORT OF INJUNCTION 

STATE OF ALARA ¢ 
- ot 

COUNTY OF MO3IIE & 

I, RO3ZRT A. BECXLRLE, aftar boing duly sworn, leposas and says as 

follows: 

ih
 

is
}!
 

wn
 

I 

1. I 2m ona of th=2 Plainti in the cas2 to be filed naming tha City - - es A 

of Mobile as a Dafendant and challenging the redistricting. of the City of 

¥obile by Hon. Virgil Pittman, presiding Judge of the United States District 

Court on or around March 9, 1977, nd I am fully familiar with the facts 

"in this matter. 

ne 4 Lo 3 sp] o y yoy Se 3 Yue : : = . 3 
2. This affidavit is submitted by me in Support of a civil action 

1. sa2king an injunction pursuant to Rule 65 of the Federal Rules of Civil 

‘Procedure, s2eking to injoin the Pefendan ts from setting and conducting 

sent redistricting plan 

and from failing to adont a plan which mests the requirexents of tha 

cual Protectica Clause of the rcarteanth. Amendment of the U. S. Constitution 

riy Of equal population as is practicible. 

Le Cai 
3. I have read the affidavits of srady Charles. Lloyd and Lar 

. vy 3 SAE or oof 4 3, SO. S . ~~ =o, : - : - } « 4. Tha Plaintiffs in this cass are registered voters and resident 

within the area comprising District 7 of the City of Mohile as decresd by i EN 

Judge Virgil Pittman in his order of arch 9, 1977. 

5. T am personally familiar with the fact that NIER2YCUS new subdivisions 

and additions thereto have been &zvelooad in the area of Mobile designated as 

District 7 and that families are now residing in houses constructed on lots 

in these new subdivisions and as a result trexmendous growth has occurred in 
1 this area. I am of the opinion that District 7 contains approximately 42,000 

=) 

pS wo 

a " a ~~ —~ i ar < “ Sl ! . Si » . F20ple, which is far more people than any orf tne other districts in ¥ohile 

Rh. Rn) ; - vn. parade znd and that the present plan estab 

TH I RE 2 er olvensive on the basis o 

. oy i a 5 5 - 3 Tray . ® i - ] TT _ TO tho 1970 census and basad on 1375 ohile City Planning Ccrmnission populat 
. 

1,3010N 

CL - li ay xnyrtalns ~IMeS that 4 ~~ i. IY robs estirales, I am OF the further 20INICh that tha praesent plan. ImoernLssabdly - 

x 

ht 

vv Tay bien rn 3 : rm ea YY TD EEA vs | / t. 3 ye : C2p2rts Irom the ona parson-o012 Vou requirements, and this deviation from 

 



    

  

  

x ~y Ts be A] - 3 Bn 1 3 ; : - 3 3 —~ - . : . absolute population equality is not justified by any state policy, and under 

th= 
ATL TAC - Ln - 

mm 2 Vm t-te rr : oy . presznt plan the residences of District 7 are versly under-reprasant 

6. XI have qualified to yun as a candidate for District 7 of ths Mchile 

City Council. I remain a candidate for this position, as I have not appliz=d for 

nor received a refind of my $50.00 cualifying fee paid to tha City Of 1obile 

at the tia I officially qualified. As a resident and r registered voter 

within this district, and as a candidate for office from this district I perfer = 
ede arte 

to see the election for city council postponed, because the citizens of 
— 
— 

x2 1 4 io. a= po R= VEAAYTN OY T rd o 3 3 : S istrict 7 only have half of the representation oI citizens in other districts 

in Mobile. 

The +3 ; Ai > oy 7. . The population figure upon wnicn my complaint is basead and which I 

have examinad, confirm Xm Ty knowledge from experience that District 7 is far 

largar in population than any of the other districts. I kelieve that this Nw A 

data is accurate. I further bzlieve that the 1970 Pop pulation census is stale 

no longer a valid means of determ ining  hpatation in Mobile. 

[e] -— - : - 3 B. In my opinion, the injunction as requested in the complaint is naces saxy 

proper unasr tn2 circumstances of this case. Unless the city TAT 

irmediately injoined from continuing with the municipal elections, I and 

Other Citizens qualifi ied to vote in t District 7 will suffer irrevocable 

INJjusy tO our right to have a vote equal to that of other citizens in Mobile — 

uncer the one ran-ons vote require; nent. 

S.. No other provisional rewadies has been secured or sought in this 

action and nO prior application has enim made for ths same or simi 

which is sought harein. 

STA 

Nt Dr Ee 2 2 / : / J J 3. i. ( pl . 

AAS AN (SAY 
‘ROBZRT A. BECKERLE 

  

  

TA 

i Head {] * ALS > Bn ¥ 

CURTY OF IOBIIE % Rr 5 

I, the undersignad Notary abit, in and for said State and County, hereby 
Cortify that ROBIE A. BECRKERLE, whose name is signad to tha f foregoing A, 1) 
and vho is known £0 me, acknowledged bafore me on this A2Y that being ins an 2d 
of tha contents of said document, he exsuctad the sama vol untarily on "we day 
the sama boars data. i 4 

A ~} H *.3 ( EY 

  

EY : Sn — pi 

Given under ry Tand and seal this the JO ~ day of ©
 Wr A ” 

(OG tn, 1978. 

  

Pe, J Ki 

= rr Fy I Sd AN EATS ( ,