Motion for Leave to Intervene or for Leave to File Amicus Brief; Brief in Support of Motion; Tanner v. Mobile Complaint; Affidavits
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October 11, 1978

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Case Files, Bolden v. Mobile Hardbacks and Appendices. Motion for Leave to Intervene or for Leave to File Amicus Brief; Brief in Support of Motion; Tanner v. Mobile Complaint; Affidavits, 1978. a409dc73-cdcd-ef11-b8e8-7c1e520b5bae. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/66e3c077-16bd-48d3-bdae-8b3204c08d5a/motion-for-leave-to-intervene-or-for-leave-to-file-amicus-brief-brief-in-support-of-motion-tanner-v-mobile-complaint-affidavits. Accessed May 12, 2025.
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IN THE SUPREME COURT OF THE UNITED STATES CITY OF MOBILE, ALABAMA, et al., Appellants, vs, NO. 77-1844 WILEY L. BOLDEN, et al., , T R J T T 8 WI RE TR J) S J W A T A S E 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. hb \ J S i ? ~, 4 4 rE \ f 4 2 + / g 4 J / EA Fi 4 FJ i f f i oF I 3 ph RICHARD W. VOLLMER, JR. 4 at aly ! 7% / { / { W. DEWITT REAMS oy hea 1 o£ / H) . 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. ™N\ / 4 fj { LA A I i i / / | | ad tr | {/ i / / { Ford if i} . i 4 § { ui £, ff ; is Al A SE Fos SE pe By ™ AL Nr LL al /Richard W. Vollmer, Jr. i po / a / A Se | i Wl WRT RR Sl EE p MT AW La Bh i a / Fail A By , ; LZ ; Stephen J. Flynn a AP Sa A 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 ( ,