Escambia County, FL v. McMillan Joint Appendix Vol. I
Public Court Documents
January 1, 1982
Cite this item
-
Brief Collection, LDF Court Filings. Escambia County, FL v. McMillan Joint Appendix Vol. I, 1982. e4ac5ff9-b09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6d7c37ea-c0ac-497c-8194-e13e462e8466/escambia-county-fl-v-mcmillan-joint-appendix-vol-i. Accessed May 21, 2025.
Copied!
No. 82-1295
IN THE
Supreme Court of the United States
OCTO BER TERM, 1982
ESCAMBIA COUNTY, FLORIDA, et a l,
Appellants,
v.
HENRY T. McMILLAN, et al.,
Appellees.
ON APPEAL FROM THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
JOINT APPENDIX
VOL. I - Pages 1-324
CHARLES S. RHYNE
Counsel o f Record
J. LEE RANKIN
THOMAS D. SILVERSTEIN
Rhyne & Rankin
1000 Connecticut Ave., N.W.
Suite 800
Washington, D.C. 20036
(202) 466-5420
THOMAS R. SANTURRI
Escambia County Attorney
28 West Government Street
Pensacola, Florida 32501
(904) 436-5450
Attorneys for Appellants
EDWARD STILL
Counsel o f Record
Reeves and Still
Suite 400
Commerce Center
2027 1st Avenue North
Birmingham , Alabama 35203
JAMES U. BLACKSHER
LARRY T. MENEFEE
Blacksher, Menefee & Stein,
P.A.
4051 Van Antwerp Bldg.
P. O. Box 1051
Mobile, Alabama
JACK GREENBERG
NAPOLEON B. WILLIAMS
Legal Defense Fund
10 Columbus Circle
New York, New York 10019
KENT SPRIGGS
Spriggs & Henderson
117 South Martin Luther
King, Jr. Bldg.
Tallahassee, Florida 32301
Attorneys for Appellees
Appeal Docketed February 2, 1983
Probable Jurisdiction Noted April 18, 1983
TABLE OF CONTENTS
VOLUME I
Page
Docket E ntries........................................................ ................ .................. 1
District C ourt................................................................................... 1
Court of Appeals ....................................................................................30
Complaint ........................................................................... 45
Answer and Affirmative Defenses — Escambia County ................... 52
Consolidation O rder......................................... 59
Arnow, C. J. Letter to Counsel of Record ..................... .................. .61
Pretrial Stipulation ......................................... 64
Pretrial Order.................... 77
Notice of Proposed County Charter ..................................................... 82
Excerpts of Trial Transcript................... .............. ............................... 146
Testimony of Dr. Jerrell H. Shofner ........................................ .. 146
Testimony of Dr. Glenn David C urry........................................ 229
Testimony of Charlie L. Taite ....................................................255
Testimony of Otha Leverette ............................................ 271
Testimony of Dr. Donald Spence .......... ................................... 280
Testimony of Billy Tennant ............................. .................. .. 310
VOLUME II
Testimony of Julian B anfell......................................... 325
Testimony of Orellia Benjamin Marshall ....................................334
Testimony of F. L. Henderson ..................... ...............................338
Testimony of Elmer Jenkins..................... ............................... 341
Testimony of Nathaniel Dedmond..................... ...................... .. 348
Testimony of James L. Brewer ........................... ...................... 357
Testimony of Cleveland McWilliams ....................................... .361
Testimony of Earl J. Crosswright ...... ..................................... .363
(0
Testimony of William H. Marshall ............................................ 374
Testimony of Dr. Charles L. Cottrell ........................................398
Testimony of James J. Reeves .................................................... 436
Testimony of Hollice T. W illiam s......................... .................... 438
Testimony of Governor Reubin A skew ............................... .. 452
Testimony of Marvin G. Beck .....................................................470
Testimony of Kenneth J. Kelson ................................................ 495
Testimony of Charles Deese, Jr.................................................... 507
Testimony of Jack Keeney ............................................ .............. 532
Testimony of A. J. B oland ............................. .............................549
Testimony of Laurence Green ......................... .......................... 560
Testimony of Dr. Manning J. D auer..........................................578
Colloquy Between the Court and Counsel ................................598
VOLUME III
Plaintiffs’ Exhibits......................................................................... .. 603
Exhibit 6 Demographic Tables — Pensacola Florida........... -603
Exhibit 8 Voter Registration, City of Pensacola....................731
Exhibit 14 Excerpts — Computer Printouts Analyzing
Voting Patterns for Selected Elections................... 733
Exhibit 16 Statistical Analysis of Racial Element in
Escambia County, Pensacola City Elections . . . . 771
Exhibit 17 Neighborhood Analysis, Pensacola SMSA ...........799
VOLUME IV
Exhibit 21 United Way of Escambia County, Inc. —
Community Planning Division Composite
Socio-Economic Index for the 40 Census
Tracts .............................................................................919
Exhibit 23 Excerpt — Statistical Profile of Pensacola
and the SMSA........................................................... 1006
Exhibit 25 Escambia County and Pensacola SMSA —
Population Trends; Racial Composition;
Population by Tract; Age Distribution.................. 1016
(ii)
(iii)
Exhibit 32 Selected Deeds Conveying Property Located
in Escambia County ........... ..................... • • ■ 1^36
Exhibit 33 Votes Cast for all Candidates in Selected
Precincts - September 1976 Primary ................1047
Exhibit 55 Materials Relating to the City of Pensacola:
Adoption of At-large Election System in 1959 .. 1052
Exhibit 66 County Boards and Committees . . . . . . . . . . . . 1106
Exhibit 70 Excerpt - 1976-77 Annual Budget of
Escambia .......................................1108
Exhibit 71 Summary Analysis (County Recreation) ......... 1111
Exhibit 73 Transcript of Proceedings of Escambia Coun
ty Board of County Commission at August
31, 1977 Public Hearing . . . . . . . . . . . . . . . . . . . . H31
Exhibit 80 1973-77 Escambia County, City of Pensacola
EEO-4 Summary Job Classification and
Salary Analysis ............. . 1142
Exhibit 92 Letter Appearing in the Pensacola News Jour
nal, August 23, 1959 ......... ............................... 1152
Exhibit 95 Editorial Appearing in the Pensacola Journal,
August 13, 1959 .............................. 11^3
VOLUME V
Exhibit 98 Proposal of Charter Commission Appointed
in 1975 ........... 1155
Exhibit 99 Recommendations by Minority of Charter
Commission Appointed in 1975 . . . . . . . . . . . . . 1225
Exhibit 100 Proposal of Charter Commission Appointed
in 1977 ............................................................ 1228
(iv)
District Court Order Denying Stay of December 3, 1979
Remedial O rd er...................................... 1261
Excerpts o f Trial o f Testimony o f Dr. Glenn David
Curry......................................................................................................... 1267
Excerpts o f Trial Testimony of Dr. Manning F.
Dauer ............................................ 1284
NOTE
The following opinions, decisions, judgments, and orders have been
omitted in printing the Joint Appendix because they appear in the
Appendices to the Jurisdictional Statement as follows:
Page
Decision on Rehearing of the Fifth Circuit in
McMillan v. Escambia County, Florida, 688
F.2d 960 (5th Cir. 1982) ...................................... ........................... A -la
Decision o f the Fifth Circuit in McMillan v.
Escambia County, Florida, 638 F.2d 1239
(5th Cir. 1981) ........................................................................ ........ B-30a
Decision o f the Fifth Circuit in McMillan v.
Escambia County, Florida, 638 F.2d 1249
(5th Cir. 1981) ............................................................................ .... B-52a
Memorandum Decision and Order of the United
States District Court for the Northern District
of Florida in McMillan v. Escambia County,
Florida, PCA No. 77-0432 (N.D. Fla. Dec. 3, 1979) ............... B-54a
Memorandum Decision o f the United States District
Court o f the Northern District of Florida in
McMillan v. Escambia County, Florida
PCA No. 77-0432 (N.D. Fla., Sept. 24, 1979) . . . . . . . . . . . . . B-66a
Memorandum Decision and Judgment o f the United
States District Court of the Northern District
of Florida in McMillan v. Escambia County,
Florida, PCA No. 77-0432 (N.D. Fla. July 10, 1978) .............B-71a
(V)
Judgment in McMillan v. Escambia County,
Florida, 688 F.2d 960 (5th Cir. 1982)........... C-116a
DOCKET SHEETS
District Court
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
HENRY T. McMILLAN, ROBERT CRANE,
CHARLES L. SCOTT, WILLIAM F.
MAXWELL and CLIFFORD STOKES,
Plaintiffs,
vs.
ESCAMBIA COUNTY, FLORIDA; GERALD
WOOLARD, KENNETH KELSON, ZEARL
LANCASTER, JOHN E. FRENKEL, JR.,
MARVIN BECK, individually and in their
official capacities as members of the BOARD
OF COUNTY COMMISSIONERS OF
ESCAMBIA COUNTY; SCHOOL DISTRICT OF
ESCAMBIA COUNTY: THE SCHOOL
BOARD OF ESCAMBIA COUNTY: PETER
R. GIND, CAROL MARSHALL, RICHARD
LEEPER, LOIS SUAREZ, A.P. BELL, FRANK
BIASCO and JAMES BAILEY, individually
and in their capacities as members of the
ESCAMBIA COUNTY SCHOOL BOARD:
JOE OLDMIXON, individually and in his
official capacity as SUPERVISOR OF
ELECTIONS OF ESCAMBIA COUNTY
Defendants
Civil Action
No. 77-0432
FILED
Mar 18
OFFICE OF CLERK
U.S. DISTRICT CT.
NORTH DIST. FLA.
PENSACOLA,FLA.
CAUSE Suit in equity arising out of Constitution &
action for declaratory judgment under 28 USC
2201 & 2202
2
UNITED STATES DISTRICT COURT DOCKET
DC-III (REV. 1/75)
DATE NR PROCEEDINGS
3/18/77 1 Filed: 0 + 30 complaints (civil rights)
alleging violation of election laws of
Escambia County, Florida & seeking
declaratory judgment of enjoinment
from holding, supervising or certifying
results of elections for School Board &
County Commissioners & award of attys
fees and costs
3/18/77 Issued: 0 + 31 summons and del. same to
US Marshal w/30 copies of complaint &
USM/285 service forms on 3/21/77
3/18/77 Filed: Cert, of Good Standing from S/D
ALA for James U. Blacksher
3/18/77 Cert, of Good Standing from S/D ALA
for Larry T. Menefee
3/21/77 Mailed Rule 6 letter to all counsel for
Plfs./Rule 3 letter to NY attys JS-5
prepared
3/28/77 2 Filed: Summons & USM/285 showing
service on Escambia County, Florida by
serving Cindy Majewski, authorized
agent for Kenneth Kelson, Chairman of
Board of County Commissioners on
3/25/77
3/28/77 3 Filed: USM/285 showing service on
Board of County Commissioners of
Escambia County by serving Cindy Ma
jewski, authorized agent for Kenneth
Kelson, Chairman of Board on 3/25/77
3
3/28/77
3/28/77
3/28/77
3/28/77
3/28/77
4/11/77
4/11/77
4/11/77
3/ 28/77 4 Filed: USM/285 showing service on Ken
neth Kelson, individually, by serving
Cindy Majewski, authorized agent 'for
service on Kenneth Kelson, on 3/25/77
5 Filed: USM/285 showing service on Ken
neth Kelson, Board of County Commis
sioners of Escambia County, by serving
Cindy Majewski, authorized agent for
Kenneth Kelson, on 3/25/77
6 Filed: USM/285 showing service on
Marvin Beck, individually, by serving
Cindy Majewski authorized agent for
service on Marvin Beck, on 3/25/77
7 Filed: USM/285 showing service on
Marvin Beck, Board of County Commis
sioners of Escambia County, by serving
Cindy Majewski, authorized agent for
service on Marvin Beck, on 3/25/77
8 Filed: USM/285 showing personal serv
ice on Joe Oldmixon, individually, on
3/25/77
9 Filed: USM/285 showing personal serv
ice on Joe Oldmixon, Supervisor of Elec
tions for Escambia County, on 3/25/77
10 Filed: Motion & Stipulation for Exten
sion of Time for defts to file responsive
pleadings
11 Filed: Order of Judge Arnow giving
defts to 4/27/77 to file responsive
pleadings-copies to all counsel
12 Filed: 285 service form w/summons at
tached showing service on Charles
Dease, Bd. of Co. Comm, by serving
sec. Linda Scheuerman on 4/4/77
4
4/11/77 13 Filed: 285 service form w/summons at
tached showing service executed on
Charles Dease individually by his
secretary Linda Scheuermann on 4/4/77
4/11/77 14 Filed: 285 service form showing service
on Zearl Lancaster, Bd. of Co. Comm,
by executing on his secretary Carol Starr
on 4/4/77
4/11/77 15 Filed: 285 service form showing service
on Zearl Lancaster, individually by serv
ing his secretary Carol Starr on 4/4/77
4/11/77 16 Filed: 285 service form showing service
on Jack Kenney personally on 4/1/77 in
capacity as Co. Comm.
4/11/77 17 Filed: 285 service form showing personal
service on Jack Kenney, individually on
4/1
4/11/77 18 Filed: 285 service form showing personal
service on Lois Suarez as member of
School board on 3/31/77
4/11/77 19 Filed: 285 service form showing personal
service on Lois Suarez, individually on
3/31/77
4/11/77 20 Filed: 285 service form showing personal
service on Peter Gindl, individually on
3/3
4/11/77 21 Filed: 285 service form showing personal
service on Peter Gindl, member of
school board on 3/31/77
4/11/77 22 Filed: 285 service form showing personal
service on Carol Marshall on 3/31/77
4/11/77 23 Filed: 285 service form showing personal
service on Carol Marshall, member of
school board on 3/31/77
5
4/11/77 24 Filed: 285 service form showing personal
service on Charles Stokes, Supt. of
Schools for School Board of Escambia
County on 3/31/77
4/11/77 25 Filed: 285 service form showing service
on Dr. Floyd Dumas, Asst. Chairman of
Board, for School District of Escambia
County on 3/31/77
4/11/77 26 285 service form showing personal serv
ice on A.P. Bell, member of School Bd.
on 3/31/77
4/11/77 27 Filed: 285 service form showing personal
service on A.P. Bell, individually on
3/31/77
4/11/77 28 Filed: 285 service form showing personal
service on James Bailey, member of
School Board on 3/31/77
4/11/77 29 Filed: 285 service form showing personal
service on James Bailey, individually on
3/31/77
4/11/77 30 Filed: 285 service form showing service
on Richard Leeper, member of School
Bd. on 3/31/77
4/11/77 31 Filed: 285 service form showing service
on Richard Leeper individually on
3/31/77
4/11/77 32 Filed: 285 service form showing service
on Frank Biasco individually on 3/31/77
4/11/77 33 Filed: 285 service form showing service
on Frank Biasco, member of School
Board on 3/31/77
4/27/77 34 Filed: Answer & Affirmative Defenses of
Defendant School Board, et a! — Refer
red to Judge Arnow
6
4/28/77
5/18/77
5/18/77
5/18/77
5/18/77
5/18/77
5/18/77
4/ 27/77
5/18/77
35 Filed Answer & Affirmative Defenses of
Escambia County, et al — Referred to
Judge Arnow — PPT Requested
36 Filed: Notice of PPT set for 5/18/77 at
10:30 AM-copies to all counsel
37 Filed: Plaintiffs’ 1st interrogs. to deft
School Bd. chk
38 Filed Plaintiffs’ 1st request for prod, of
documents by deft Oldmixon. chk
39 Filed: Plaintiffs’ 1st interrogs. to deft
Oldmixon. chk
L.C. Notes of Hearings held from 10/30
- 11/30 — Order to be entered —
Discovery set for 8/18/77. Cases 77-0432
and 77-0433 are consolidated for
discovery purposes. Conditionally cer
tified as class action. Briefs due in 10
days on disputed areas.
40 Filed First Interrogatories propounded
by Deft School Board, et al
41 Filed: Order that cases consolidated for
disc, only w/disc to end 8/18/77; that
original of all depos filed on this case
w/copy filed in 77-0433; conditionally
certified class action w/members of class
being all black citizens of Escambia
County & City of Pensacola; memos due
5/30 on issue if State, Governor & Dept,
of State are indispensable parties;
whether case should proceed against
members of County Comm. School
Board & City Council in individual
capacities — copies to all counsel of
record
Supplemental class action allegation
prepared
7
5/20/77 42 Filed: Defts’ Escambia Co., County
Comm. & individual members of same.
Elect, supervisor & as individuals 1st in-
terrogs to plfs.
5/20/77 43 Filed: Plfs’ 1st request for production of
documents by School Bd. & individual
members thereof
5/27/77 44 Filed: Plfs’ memo brief concerning ques
tions raised at 1st pt conference —
REFERRED
5/27/77 45 Filed: Defts’ Memo of law in support of
county commissioners & supervisor of
election affirmative defenses — REFER
RED
5/31/77 46 Filed: Deft. School Board’s memo in
support of affirmative defenses —
REFERRED
6/3/77 47 Filed: Plfs’ 1st request for production by
County Commissioners
6/3/77 48 Filed: Plfs’ 1st interrogs to County Com
missioners
6/17/77 49 Filed Deft Oldmixon’s reply to Plfs’ 1st
request for Production of Docs.
6/20/77 50 Filed: Deft. School Board’s ans & obj. to
plfs’ 1st interrogs & memo in support of
same
6/21/77 51 Filed: Deft Oldmixon’s Answers, Ob
jections & Memo to Plfs’ 1st Interrogs to
Deft.
6/21/77 52 Filed: Response of Deft School Board, et
al to Plfs’ 1st Request for Production &
Brief in support of objections to produc
tion
8
6/24/77
6/28/77
7/1/77
7/8/77
7/15/77
7/20/77
7/22/77
7/26/77
7/28/77
6/ 24/77 53 Filed: Plfs’ 1st Interrogs to Deft City of
Pensacola
54 Filed: Plfs’ 1st Request for Production
of Documents by Deft. City of Pen
sacola
Received: Proposed Consent Discovery
Order - REFERRED TO JUDGE AR-
NOW
55 Filed: Answers & Objections of Plfs to
Defts’ first interrogatories
56 Filed: Defendant County Commis
sioners’ response to plfs’ 1st request for
prod.
57 Filed: Deft’s notice of taking depositions
of Henry McMillan, Robert Crane,
Charles Scott, Wm. Maxwell, Charles
Stokes, Elmer Jenkins, Woodrow
Cushon, Samuel Horton, Henry Burrell
& Bradley Seabrook on 7/20/77 &
7/21/77
58 Filed: Consent Discovery Order (Arnow,
CDJ) that deft Oldmixon may answer
plfs’ 1st Interogs. to deft. Oldmixon
when necessary by referring to
documents & said documents need not
be filed in Clerk’s office-copies to all
counsel
59 Filed: Second interrogatories propound
ed by Deft School Board, et al
60 Filed: Plfs; notice of taking Joseph
Mooney’s depo on 8/3/77 @ 9/30 AM
61 Filed: 2nd Interrogatories propounded
by Defts County & Supvsr of Elections
9
8/4/77 63
8/4/77 64
8/5/77 65
8/9/77 66
8/ 2/77 62
8/24/77 67
8/24/77 68
8/29/77 69
8/29/77 70
8/27/77 71
9/7/77 72
Filed: Joint motion to extend discovery
w/proposed order — REFERRED to
Judge Arnow
Filed: Copy of letter from Atty.
Blacksher to John Fleming that depo of
Mr. Moone has been re-set for 8/10/77
@ 9:30 AM
Filed: Order granting motion for exten.
of disc. — time extended to 11/19/77 &
same not to be further extended unless
motion file suff. in advance of 11/19/77
Filed: Copy of letter to all counsel from
judge re: adding add. parties
Filed: ORDER (ARNOW, CJ) The new
local rule 17, entitled Class Actions,
adopted by this court, is now adopted as
a rule applying to this case during the
period from the date of this order until
11/1/77 when such local rule becomes
effective & thereafter covers the conduct
of this & all other class action suits —
Copies to all counsel
Filed: Deposition of Woodrow Cushon
taken on 7/21/77
Filed: Deposition of Hollice T. Williams
taken on 8/2/77
Filed: Deposition of Samuel A. Horton
taken on 7/27/77
Filed: Deposition of Henry N. Burrell
taken on 7/27/77
Filed Deposition of Charles L. Scott
taken on 7/27/77
Filed: Depo of Robert P. Crane taken
7/25/77
10
9/9/77 73 Filed: Deft County Commissioners’
Answers, objections & memo to plfs’
first interrogatories to deft county com
missioners
9/9/77 74 Filed: Depo of William F. Maxwell
taken 7/25/77
9/12/77 75 Filed: Deft County Commissioners’
Answers, objections & memo to plfs’
first interrogatories w/Commissioner
Lancaster’s signature
9/19/77 76 Filed: Depo of Henry McMillan
9/19/77 77 Filed: Depo of Bradley M. Seabrook
9/22/77 78 Filed: Deposition of Clifford Stokes
9/29/77 79 Filed: Deposition of Joseph K. Mooney
10/5/77 81 Filed: Deposition of Frank A. Faison
10/5/77 81 Filed: Notice of Deposition of Peter R.
Gindl on 10/25/77
10/5/77 82 Filed: Notice of Deposition of Kenneth
Kelson on 10/24/77
10/12/77 83 Filed: Plfs’ answer and obj. to deft.
School Board’s 2nd interrogs
10/12/77 84 Filed: Plfs’ ans. & obj. to deft. County
Commissioner’s and Super, of Elections’
2nd interrogs
10/12/77 85 Filed: Depo of Elmer Jenkins taken
7/21/77
10/19/77 86 Filed: Notice of filing verbatim
transcript of statements made by & to
Deft Board of County Commissioners &
atty during public hearing held 8/31/77
11/10/77 87 Filed: Deposition of Henry T. McMillan
& Robert Paul Crane taken on 7/20/77
11
11/18/77 88 Filed: Deft, Escambia County — Motion
to extend time for discovery — REFER
RED as EMERGENCY
12/1/77 89 Filed: Notice of Continuation of taking
of deposition of Henry T. McMillan.
12/2/77 90 Filed: Clerk’s Notice — Deft Escambia
County Motion to extend discovery —
GRANTED copies to all counsel —
Discovery ext. to 1/6/78
12/12/77 91 Filed: Continuation of deposition of
Henry McMillan on 12/6/77
12/15/77 92 Filed: Transcript of a portion of meeting
of Bd of Co. Commissioners held
12/8/77.
12/19/77 93 Filed: Transcript of School Board
meeting of 10/13/77
1/10/78 94 Filed: Plfs’ Motion & brief for order
authorizing certain communications
with class members — & Hearing set,
handed to L.C.
1/10/78 95 Filed: ORDER extending discovery to
3/10/78 — Copies to all counsel
1/16/78 96 Filed: Ltr from Atty Charles S. Rhyne
re: change of address
1/20/78 97 Filed: Deft. County Comm, response to
motion for order authorizing com
munications w/class members
1/23/78 98 Filed: Defts; School District, School
Board, Gindl, Marshall, Leeper, Suarez,
Bell, Biasco & Bailey’s reply memo in op-
po to motion for order authorizing com
munications with class
12
1/30/78
2/1/78
2/8/78
2/14/78
2/14/78
2/23/78
2/23/78
1/ 25/78 99 Filed: Defts County Commissioners’
supplemental answer to plfs interrogs
100 Filed: Ltr from Louis F. Ray, Jr. to
Judge Arnow re: School Board
Transcript
101 Filed: Deft. County’s notice of taking
depos of Drs. C ottrell, Curry,
McGovern and Shofner on 2/27 & 28
w/copy of letter to Atty Blacksher at
tached
102 Filed: Notice of hearing on motion &
other matters pertaining to communica
tions of class members set 2/22/78 at
3:00 PM — copies to all counsel
103 Filed: Plfs’ motion and memo for order
authorizing Dr. Chas Cotrell to inter
view members of class
104 Filed: County’s respns to plfs’ informal
disc, request for 1977 EEO-4 reports
105 Filed: ORDER (ARNOW, CJ) Deft, Dr.
Frank Biasco w/i 15 days (3/10/78) will
serve memo of law respecting motion &
plfs have 15 days after service to serve
response — copies to all counsel
106 Filed: ORDER (ARNOW, CJ) re com
munications w/class members; counsel
shall maintain a list of all class members
they communicate with & shall
periodically file in this court such lists,
under seal, to be held in camera, w/such
lists to be filed at the end of each month,
commencing w/3/78. Names on such list
will not be divulged except pursuant to
order of competent court — copies to all
counsel
13
2/23/78 107 Filed: Clerk’s Notice — Pits’ Motion for
order authorizing Dr. Cotrell to conduct
interviews w/members of class —
DENIED as moot, in view of order
entered this date — copies to all counsel
2/23/78 108 Filed: Deft County Commissioners’ sup
plemental answers to plfs’ interrogs
2/23/78 109 Filed: Ltr from Atty Ray to Judge Ar-
now dtd 1/31/78 re: Dr. Biasco
3/1/78 110 Filed: Plfs’ Motion for extension of time
for conducting discovery — REFER
RED
3/6/78 111 Filed: Letter to Judge from Atty.
Blacksher w/proposed form letter seek
ing funds from class members attached
for approval by court — REFERRED
3/7/78 112 Filed: Memo of law in support of pet. of
deft Dr. Biaso for approval of proposed
public statement
3/10/78 113 Filed: Clerk’s Notice — Proposed form
letter from plfs approved w/correction
— copies to all counsel w/copy of ap
proved letter attached
3/13/78 114 Filed: Clerk”s Notice — Motion to ext.
disc. GRANTED - Disc, ends 3/20/78
— copies to all counsel
3/13/78 Rule 3C letter to all counsel
3/21/78 115 Filed: Order setting PT Conf — set
4/21/78 @ 9 AM w/papers due 4/14 —
copies to all counsel of record
3/24/78 116 Filed: Order modifying paragraph (B) of
order setting PT Conf so that parties
meet by 4/10 rather than by 4/3 —
copies to counsel of record
14
3/30/78 117 Filed: ORDER approving Dr. Biasco
statement permissable under Local Rule
17(B) copies to all counsel
4/3/78 118 Filed: List of class members contacted
by plfs’ counsel - FILED SEALED AS
PER ORDER OF COURT
4/1/78 119 Filed: Defts’ MSJ & memo in support of
same
4/12/78 120 Filed: Amended PT Order — PT set
5/31/78; PT Papers due 5/15/78; trial
tent, set 7/5-7/78 & 7/17-21/78 -
copies to all counsel
4/13/78 121 Filed: 2nd amend, order for PT — set
5/4/78 @ 10 AM w/papers due 4/26 &
trial set 5/15/78 — copies all counsel
4/25/77 122 Filed: Notice of appearance of add.
counsel for plfs — Rule 5 letter written
4/25/77 123 Filed: County’s motion for ext. to file
PT papers from 4/26 to 5/1 — REFER
RED
4/25/77 124 Filed: County’s memo in support of mo
tion to extend time to file PT papers
4/25/77 125 Filed: Deposition of Kenneth Shofner
taken on 3/2/78
4/25/77 126 Filed: Deposition of James McGovern
taken on 3/2/78
4/26/78 127 Filed: PT Stipulation
4/27/78 128 Filed: Cy ltr from Judge Arnow to
Counsel re: compliance W /PT Order
5/1/78 129 Filed: Plfs motion to allow deposing of
defts’ expert witnesses — REFERRED
15
5/1/78 130 Filed: Plfs’ notice of taking depos of Dr.
Dauer, Dr. Morris, Dr. Horton 5/8/78
5/1/78 131 Filed Plfs’ PT proposed findings of fact
& conclusion of law — REFERRED
5/1/78 132 Filed: Plfs’ PT brief & oppo to defts’
MSJs - REFERRED
5/1/78 133 Filed: Deft’ Trial Brief — REFERRED
5/1/78 134 Filed: Deft School Board 2nd amend
ment to deft’s potential witness list
5/1/78 135 Filed: Deft School Board 1st amendment
to potential witness list
5/1/78 136 Filed: Deft County Commissioners &
Supervisor of Elections exhibit list
5/1/78 137 Filed: Defts’ Proposed findings of facts
& conclusions of law — REFERRED
5/4/78 138 Filed: Cert, of Good Standing from
ND/Ala for W.E. Still, Jr.
5/8/78 139 Filed: Notes of PT Conf; plfs prior to
trial to file stip re: para. F5 of the PT
stip; memo re: obj. to exhibits due by
5/12 & PT order due 5/12
5/8/78 140 Filed: Copy of letter from Judge to all
counsel re: conduct of trial.
5/8/78 141 Filed: Third Amendment to Deft School
Bd’s potentional witness list.
5/11/78 142 Filed: First Amendment to Deft County
Commissioners and Supervisor of Elec
tions’ potential witness list.
5/12/78 143 Filed: Deft memo in oppo to admissibili
ty of newspaper articles — REFERRED
5/12/78 144 Filed: Amendment to Plfs’ Witness List
- REFERRED by handing to L.C.
5/12/78 145 Filed: File Memo of authorities concern
ing admission of newspaper articles —
REFERRED by handing to L.C.
5/12/78 146 Filed: PRE-TRIAL ORDER — copies to
all counsel
5/12/78 147 Filed: Deft Cty Cmms & Svsr Elect.
Memo in opp. to admissibility of ex
hibits of Plfs - REFERRED to handing
to L.C.
5/12/78 148 Filed: Stipulation pursuant to PT Order
filed 5/12/78 - REFERRED by hand
ing to L.C
5/15/78 149 Filed: Deposition of Doctor Manning
Dauer taken 5/8/78
5/15/78 150 Filed: Deposition of Doctor Michael
Horton taken 5/8/78
5/15/78 151 Filed: Deposition of Honorable M.C.
Blanchard taken 5/8/78
5/17/78 152 Filed: Deposition of Peter R. Gindl, Sr.
taken 8/2/77
5/18/78 153 Filed: Deposition of Dr. Charles Cottrell
5/23/78 154 Filed: Memo of law of deft. School
Board
5/15/78 Proceeding before Judge Arnow for
non-jury trial — to continue 5/16
5/16/78 Cont. of N-J trial - to cont.
5/17/78 Cont. of N-J trial — to cont.
5/18/78 Cont. of N-J trial — to cont.
5/21/78 Cont. of N-J trial - to cont.
5/22/78 Cont. of N-J trial — to cont.
5/23/78 Cont. of N-J trial — to cont.
5/24/78 Cont. of N-J trial — to cont.
5/25/78 Cont. of N-J trial - to cont - both
sides rest @ 11:40 AM - parties to file
briefs in 10 days — 5/5/78
5/30/78 155 Filed: Transcript of trial testimony of
Dr. Charles L. Cotrell
6/1/78 156 Filed: Transcript of trial testimony of
Dr. Manning J. Dauer
6/5/78 157 Filed: Trial Testimony of William H.
Marshall
6/5/78 158 Filed: Defts County & School Board’s
post trial memo w/copy of same —
REFERRED
6/6/78 159 Filed: Plfs’ post-trial proposed findings
of fact & conclusions of law — REFER
RED
6/6/78 160 Filed: Copy ltr from Atty Blacksher to
defts counsel re: Plfs’ Post trial brief
6/12/78 161 Filed: Defts’ motion to file post-trial
memo response to plfs’ post-trial brief
w/memo in support attached —
REFERRED
7/3/78 162 Filed: Sealed envelope containing those
class members with whom attorneys for
the plaintiffs in this cause and in 77-0433
discussed these cases during the period
through 6/30/78.
18
7/7/78
7/7/78
7/10/78
7/10/78
7/10/78
7/ 7/78
7/10/78
7/11/78
7/11/78
163 Filed: Plfs’ sealed list of class members
as per order
164 Filed: Defts’ application for stay and in
junction pending appeal
165 Filed: Defts’ memo in support of ap
plication for stay & injunction & propos
ed order — REFERRED
166 Filed: School Board’s consent to entry of
order granting application for stay and
injunction pend, appeal
167 Filed: Memorandum decision — copies
del. & mailed to all counsel of record
168 Filed: Judgment in favor of plfs and
against defts & taxing costs against defts;
that parties to submit proposals for dilu
tion remedy in 45 days; that remedial
systems approved and adopted not to be
effective for primary & general elections
in 1978 but will be effective in 1980; re
taining jurisdiction of matter & that an
immediate appeal may materially ad
vance ultimate decision of litigation —
copies either del. or mailed to all
counsel; recorded in COB #21, Pgs 14
& 15
JS-6 prepared
169 Filed: Order that defts’ application for
stay of elections pend, final determina
tion DENIED — copies to all counsel &
recorded in COB #21, Pgs. 17-19
170 Filed: Order that County Commissioners
motion to substitute #34 exhibit with
copy of same — GRANTED — copies to
all counsel
19
7/14/78 171 Filed: Cy ltr to John Suda re: transcript
of case
7/18/78 172 Filed: Plfs’ motion to alter or amend
judgment
7/18/78 173 Filed: Brief in support of plfs’ motion to
alter or amend judgment
7/31/78 174 Filed: Opposition to plaintiffs motion to
alter or amend judgment. Referred.
8/8/78 175 Filed: ORDER — Plfs motion to amend
or alter judgment is denied w/o pre
judice — copies to all counsel
8/9/78 176 Filed: Notice of Appeal by Deft Carol
Ann Marshall
8/9/78 177 Filed: Notice of Appeal by Defts Escam
bia County, et al.
8/24/78 178 Filed: County’s proposed election plan
8/24/78 178 Filed: School Board’s proposed election
plan
8/24/78 179 Filed: County’s amendment to election
plan
8/24/78 180 Filed: School Board’s proposed election
plan
8/25/78 181 Filed: Plaintiffs’ submission of distric
ting plan for the County Commission
and School Board. Referred.
8/28/78 182 Filed: Cy ltr from Atty Fleming to
Counsel re: transcript
8/29/78 183 Filed: Cy ltr from Judge Arnow to All
Counsel re: Hearing (status) 9/25/78 at
9:00 AM w /ltr from Grady H. Albritton
dtd 8/29/78
20
9/13/78
9/14/78
9/15/78
9/19/78
9/22/78
10/5/78
9/ 7/78
10/10/78
10/17/78
10/18/78
10/18/78
10/19/78
184 Filed: Plfs’ amendment of districting
plan for the county commission & school
board - REFERRED
185 Filed: Request for extension of time for
transmission of record on appeal —
REFERRED
Request for ext. of time for trans. of
record-on-appeal stamped GRANTED
— copies to all counsel, court reporter
& cert copy to USCA-5th Cir.
186 Filed: Defts’ memo in support of submit
ted electoral plans — REFERRED
187 Filed: Plfs’ memo concerning proposed
remedies — REFERRED
188 Filed: Notice of adoption of ordinance
amending election plan. Referred.
189 Filed: Memorandum (WEA) w/trans.
ltr to all counsel — memos due re:
charter commission & School Board
Governing Authority w/plfs responding
w/i one wk after (10/10/78) - hearing
set 11/21/78 at 2:00 PM (evidentiary)
190 Filed: Deft School Board’s Amendment
to deft’s memo in support of submitted
electoral plans — REFERRED
191 Filed: Plfs’ reply to deft School Board’s
Amended memorandum — REFERRED
192 Filed: Cy ltr from Atty Blacksher to
Judge Arnow re: Charter Commission
process
193 Filed: Cy ltr from Atty Fleming to
Judge Arnow re: Charter Commission
Filed: Transcript of Non-Jury Trial (9
volumes)
21
11/7/78 Record-on-Appeal mailed to USCA-5th
Circuit — copies of dockets w/trans. Itr
to all counsel — cc: Judge Arnow &
John Suda — Exhibits to be mailed by
Appellants
11/7/78 194 Filed: Cy Itr from Atty Lott to Clerk,
USCA-5th Circ. re: motion to expedite
appeal
11/7/78 195 Filed: Cy Itr from Atty Fleming re:
docketing fee
11/29/78 196 Filed: Copy Itr from Judge Arnow to
Mr. Oldmixon
12/5/78 197 Filed: Notice of substitution of parties
— substituting John E. Frankel, Jr. for
Jack Kenney as County Commissioner
2/5/79 Judge’s Memo to refer back in ten days
(2/15/79)
2/13/79 198 Filed: Deft County’s Offer of Judgment
for legal services
2/15/79 199 Filed: Defts’ memorandum regarding
preclearance remedy
2/20/79 200 Filed: CONSENT ORDER w/respect of
plfs’ attys’ fees to be paid by deft School
Bd Judgment entered in favor of plfs &
against deft School Board in the amount
of $48,000.00 in full satis, of plfs’ claims
for attys’ fees to 12/31/78 — Pending
resolution of appeal the above amount
shall be placed in a certificate of deposit
or some other interest-bearing account
w/periodic int. realized to be made
payable to plfs’ attys’, etc. — This judg
ment shall have no effect upon & shall be
entered w/o prejudice to plfs’ claims for
22
2/20/79
2/27/79
2/27/79
2/27/79
3/5/79
3/12/79
attys’ fees against Deft School Board &
members w/respect to work performed
after 12/31/78 & against all other defts
in this & the companion 77-0433 —
copies to all counsel
201 Filed: Memorandum decision concern-
regarding preclearance remedy
202 Filed: School Board’s suggestion of par
ties - REFERRED
203 Filed: Memorandum decision concern
ing remedial plan — copies to counsel
204 Filed: Order in accordance w/memo
decision — re-apportioned to 5 single
member districts as prescribed in plan
filed 8/24/78 as attached w/map; at next
primary & general election in 1980,
board to be reduced from 7 to 5
members; those members elected in 1980
from districts 1, 2 & 3 to serve 2 year
terms and those elected from 4 & 5 shall
serve 4 years and thereafter, all members
to be elected for 4 year terms; after each
federal decennial census, districts to be
re-apportioned; enjoining County
School district, school board, individual
members, supervisor of elections, from
failing to redistrict as set out, holding
elections as redistricted; retaining
jurisdiction for 5 years — copies to
counsel of record — recorded in COB
#21, Pg 16-19
205 Filed: Consent ORDER W/respect to
plfs’ attys’ fees to be paid by Deft Escam
bia County — copies to all counsel
206 Filed: AMENDED CONSENT ORDER
23
3/29/79
4/20/79
4/27/79
5/15/79
7/5/79
3/17/79
w/respect of Plfs’ attys’ fees to be paid
by Deft Escambia County — Judgment
entered for Plfs & against Deft Escambia
County in amount of $49,729.00 in full
satisfaction of attys fees & costs up to &
including 12/31/78, plus simple int. at
8% per annum beginning 4/1/79,
entered on consent of parties & entered
w/o prejudice to plfs’ claims for fees
after 12/31/78 in this & 77-0433, provid
ed no claim for attys fees or costs shall
be allowed against Deft Joe Oldmixon —
copies to all counsel
207 Filed: Deft School Board Member Sam
Forester’s Notice of Appeal — cert, copy
to USCA 5th Circuit w/cert. copy
docket sheets cc: all counsel & Deft SB
Member
208 Filed: Cy ltr from Court Reporter to
Mr. Forester re: Transcript
209 Filed: Motion to withdraw appeal —
REFERRED
Court Reporter Notes: Box 43 Col. 2, 3,
4, 5, 6
Deft Sam Forester’s Motion to withdraw
appeal stamped “GRANTED - The
court being advised this appeal has not
yet been docketed.” — copies of motion
w/endorsement to all counsel & School
Board Member Sam Forester & USCA-5
Cir.
210 Filed: Notice of proposed county charter
211 Filed: Plfs motion and memo for ten
tative approval of proposed charter
reapportion plan
24
9/21/79
9/24/79
3/ 17/79
11/9/79
11/29/79
1/29/79
11/29/79
12/ 3/79
212 Filed: Clerk’s notice of hearing on mo
tion for tentative approval of proposed
charter reapportionment plan — set
9/8/79 @ 9 AM — copies to counsel of
record
Hearing held from 2 — 3:15 PM order to
be entered on county plan and charter
plan
213 Filed: Memo decision — giving tentative
approval as suggested by the parties, to
the reapportionment plan contained in
the proposed County Charter to be sub
mitted to the referendum election
11/6/79; such approval is subject to the
condition that the single member district
boundaries subsequently drawn by reap
portionment commission, if charter is
approved, to be submitted to the court
for review and approval as adequate
remedy for the present racially
discriminatory election system — copies
to counsel of record
Letter from Judge to all counsel setting
hearing on 11/26/79 re: voting plan
214 Filed: Escambia County’s memo in sup
port of preserving incumbency pending
remedial redistricting — handed to L.C.
215 Filed: Notice of substitution of parties
— Woolard for Deese-County Commis
sion
216 Filed: Plfs’ memo re: preserving in
cumbency — handed to L.C.
217 Filed: Memo decision on County Com
missioners reapportionment — copies to
counsel
25
12/ 3/79
1/3/80
1/3/80
1/ 18/80
218 Filed: Order (WEA) on memo decision
that County Commissioners to be reap
portioned to 5 single-member districts
w/boundaries to conform to those
adopted in 2/27/79 order w/description
appended to order; at next primary &
general elections in 1980 single-member
districts will be elected but jurisdiction is
retained to alter date of elections on mo
tion; to preserve staggered terms, com
missioners from Dist. 1, 2 & 3 shall serve
4-year terms & those elected from Dist. 4
& 5 to serve 2 yrs initially, but 4 yrs
thereafter; after publication of decennial
census, districts shall be reapportioned
to comply w/one-person, one-vote re
quirements; that County Commis
sioners, individually & in official
capacities & Supervisor of Elections,
their successors, agents, etc. are enjoined
from failing to redistrict & reapportion
& to hold elections as redistricted; retain
ing jurisdiction for 5 yrs. unless changed
for further orders as necessary copies to
counsel, recorded in COB #21, Pgs 239
to 243
219 Filed: Escambia County’s Notice of Ap
peal (Rec’d w/o filing & docket fees
1/2/80)
Trans 1th to USCA w/cert. copy notice
of appeal & docket sheets — cc: all
counsel of record
Court Reporter Notes: Box 49 Col. V-H.
1-26-79, 9-25-78
Record-on-appeal mailed to USCA cc:
all counsel of record
26
1/23/80 220 Filed: Motion of Deft Escambia County
for stay of 12/3/79 Order of Elections
w/memo
2/6/80 221 Filed: Notice of hearing on motion for
stay set 2/15/80 at 10: AM — copies to
all counsel
2/7/80 222 Filed: Plfs’ memo opposing defts’ ap
plication for stay of elections
2/15/80 223 Filed: ORDER (WEA) denying deft
County’s Motion for stay of elections —
copies to all counsel
2/26/80 224 Filed: Notice of Appeal by Deft County
2/26/80 Record on appeal consisting of Docu
ments #220 - 224 mailed to USCA — cc:
all counsel of record
3/23/81 225 County’s stip. that Patricia D. Wheeler
be substituted as counsel for the county
in place of Richard I. Lott
3/23/81 226 County’s entry of appearance of Patricia
D. Wheeler as counsel for Escambia
County
4/13/81 227 ORDER (USCA) Denying plfs’ motion
for restoration of USDC injunctions
8/17/81 228 MOTION for the payment of attorney’s
fees and costs with respect to issues con
cerning school board
8/31/81 229 Consent Order (WEA) re: plfs’ attys’ fees
to be paid by shool board — copies to
counsel of record
11/16/81 230 JUDGMENT issued as a mandate
affirming District Court Judgment —
REFERRED
27
12/22/81 231 Plfs’ motion and brief for award of attys’
fees and costs w/affidavits
12/28/81 232 Amended motion for award of attys’ fees
and costs w/exhibit attached
1/5/82 233 Deft Marshall’s response to plfs’ motion
and brief for award of attys’ fees and
costs
2/5/82 234 Notice of hearing set for 2/25/82 at
11:00 am-copy to all counsel
2/25/82 235 ORDER (WEA) Setting case for eviden
tiary hearing 3/29/82 at 9: AM — 1 day
— copies to all counsel
3/3/82 236 STIPULATION of w/drawal of counsel
3/3/82 237 APPEARANCE of Paula G. Drum
mond as atty for Escambia County
3/8/82 238 MOTION for production of documents
under Rule 34 by Marshall
3/8/82 239 MOTION to shorten time to respond to
motion for production of documents —
REFERRED
3/9/82 240 AMENDMENT to Deft Marshall’s
response to plfs’ motion & brief for
award of attys’ fees & costs & MOTION
to deny same & hearing thereon
3/9/82 241 NOTICE of deposition of Carol Ann
Marshall on 3/19/82
3/10/81 242 ORDER (WEA) GRANTING deft Carol
Ann Marshall’s motion to shorten time
from 30 to 14 days for plfs to respond to
deft’s motion for production of docu
ments. — copy to all counsel
28
3/23/82
3/25/82
3/25/82
3/25/82
3/26/82
5/14/82
5/24/82
3/22/82
6/ 7/82
243 PLFS’ RESPONSE to deft Marshall’s
motion for production of documents —
REFERRED
244 Deft. Marshall’s motion for hearing &
decisions prior to evid. hearing set
3/29/82 & for reasonable delay of evid.
hearing on attys’ work & expense —
REFERRED
245 Plfs’ letter-memo In support of motion
for atty’s fees & costs awarded jointly &
severally - REFERRED
246 Plfs’ letter-memo in oppo to deft. Mar
shall’s motion of 3/23/82 — REFER
RED
247 Plfs’ motion to have County held jointly
& severally liable for attys fees & cost
248 DEPOSITION of Carol Ann Marshall
taken 3/19/82
249 JOINT MOTION to approve consent
judgment w/proposed judgment —
REFERRED
250 Consent Judgment — plfs motion for at
tys fees & costs against Carol Ann Mar
shall is settled & dismissed; plfs claim for
attys fees & costs against Escambia
County dismissed w/out prejudice;
Carol Ann Marshall to pay plf $8,000
for a claims for fees & costs; all other
motions pend, with regard to fees &
costs withdrawn — copies to counsel of
record
251 D eft. School Bd’s m otion for
preclearance of school board member
residence areas & memo in support
29
6/17/82 252 Plfs obj. to preclearance — REFERRED
6/17/82 253 Plfs letter-memo in support of objec
tions to preclearance
7/1/82 254 ORDER (WEA) conditionally approving
pre-clearance of School Board Election
District copies to counsel
7/6/82 255 Deft. School Bd’s cert copy of RESOLU
TION revising districts - REFERRED
Wea
7/6/82 256 Civil subpoenas showing svc on Jim C.
Bailey on 7/1/82
30
Court of Appeals
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 78-3507
HENRY T. McMILLAN, e t a l .,
Plain tiffs-Appellees,
versus
ESCAMBIA COUNTY, FLORIDA, ET AL.,
Defendants-Appellants.
* * * * *
ELMER JENKINS, ET AL.,
versus
CITY OF PENSACOLA, ET AL.,
(Consolidated with 79-1633 & 80-5011. Defendants-
Appellants.
FILED 8/9/78
Judge Winston E. Arnow
Docket Number CA 77-0432 & CA 77-0433
(Consolidated in D.C.)
APPEARANCE
DATE NR ATTORNEYS FOR APPELLANT
FOR ESCAMBIA COUNTY:
12/6/78 Richard Y. Lott, County Att., 23 West
Government Street, Pensacola, Florida
32501
12/6/78 John W. Flemming -do- (904) 432-8374
4/10/81 Patricia D. Wheeler -do- (904) 436-5450
(out of case)
31
12/6/78
12/6/78
12/6/78
12/6/78
3/26/79
3/26/79
12/7/78
1-10-29
12-7-78
12/8/28
3/1/82 Paula G. Drummond -do-
FOR SCHOOL BOARD
RAY, PATTERSON & K1EVIT, 226
Palafox Street, Pensacola, Florida 32501
FOR ALL DEFENDANTS:
Charles S. Rhyne, 1000 Connecticut
Ave., N.W., Suite 800, Washington,
D.C. 20036.
William S. Rhyne -do-
Donald A. Carr (out of the case)
For CITY OF PENSACOLA:
Don J. Canton, City Att., Pensacola, FL
(904) 436-4320
ATTORNEYS FOR APPELLEES
J. U. Blacksher, Mobile, AL 36601 (205)
433-2000
Larry Menefee -do-
CRAWFORD, BLACKSHER, FIG
URES & BROWN, 1407 Davis Ave.,
Mobile, Al. 36603
J. U. Blacksher -do- (205) 432-1681
Kent Springs, 324 West College Ave.,
T allahasee, F lorida 32301 (904)
224-87-01
Jack Greenberg, 10 Columbus Circle,
Suite 2030, New York, New York 10010
(212-586-8397)
Eric Schnapper, -do-
Edward Still, Suite 400, Commerce
Center, 2027 1st Ave., N., B’hm, AL
35203 (205-322-6631)
Refer Panel to City of Mobile v. Bolden
in U.S. Supreme Court #77-1844 - 5th
Circuit #12
32
7/31/79 Cons, w/79-1633 after this was screened
xxxxxxxxxxx 79-1633 was classed IV
automatically, xxxx
7/6/83 Call Betty Killan xxxxxxxxxxxxxxxxxxx
rehearing ruled (904) 433-0004.
8/23/82 Craig Pittman — 800-342-2263 Pen
sacola Journal, also call Pittman when
rehearing is ruled on.
1. Record, Exhibits and Brief Information
11/14/78 Record on Appeal
11/14/78 Exhibits
12/26/78 Brief for Appellants (City of Pensacola, et al.)
12/26/78 Brief for Appellants (County of Escambia, et
al.)
3/2/79 Brief for Appellees
3/19/79 Reply Brief for Appellants (City of Pensacola,
et al.)
6/16/80 Supp. Brief for Appellants (J)
5/12/80 Supp. Brief for Appellees (J)
7/23/82 Supp. Brief for Appellees (Ed to Pit. former
5th Cir. Judges
7/23/82 Supp. Brief for Appellees (E’d to Pit. former
5th Cir. Judges
12/26/78 Record Excerpts
3-19-79 Reply Br. for Appellants (County of Escam
bia, et al) 5-9
4. Extension Fig. Motion for:
1-26-79 Appelle’s Brief Ext. to 2-25-79
33
5. Calendar Information
2-14-80 Case assigned for 3-26-80 in EB
Hearing Panel: JPC-Peck-PAK
3-26-80 Case Argued □ by Appellant □ by Appellee
6. Opinioni Information
2-19-81 *Opinion Rendered
PAK Aff. in Pt. Rev. in Pt.
*Issd in xxxxx signed
Printed opinion distributed 3-9-81 p. 4317
7. Rehearing Information
3-2-81 Sub. 3/8/81 PAK
4-3-81 Petition for Rehearing (P) (J) □ Appellee □
Reg. □ Suggestion En Banc
10-8-82 xxxxxx for Rehearing (P) on the Rehearing
Opinion □ Appellant □ En Banc
11-04-82 Order Denying Rehearing of 10-08-82
9-24-82 □ Opinion also filed in 80-5011
8. Motions
4-9-79 Consolidate Appeals W/79-1633, clerk BNS
dated 4-17-79.
2-21-79 Leave to File Brief in Excess Pgs. 70 pages
Court GBT filed 2-2-79
5-12-80 Leave to File Supp. Brief RCV 5-12-80
3-2-81 Stay of Mandate (CofP). Response filed by
3-10-81 sub 3/10/81, Granted. Court Clerk,
PAK. Dated 3-12-81.
11-16-82 Stayg Mot. (Appellant) Response filed by Ap
pellee’s. Dated 11-18-82. Court Clerk, PAK.
Dated 11-23-82.
34
9. Other Docket Entries
12/6/78 Fig. Notice of appellants, Escambia County
11/30/79
and members of its Board of County Commis
sioners for substitution of parties. (SEND TO
SCREENING JUDGE).
Fig. Appellants Notice of substitution of par
ties. (SEND TO PANEL)
12/7/79 Fig. Appellant’s Application for Expedited
consideration of Merits appeal.
12/10/79 Fig. Appellee’s response in support of motion
to expedite appeal.
12/18/79 Fig. Appellee’s Supp. Authority. (Send to
Panel)
12/26/79 Fig. Order GRANTING appellants’ motion to
expedite the appeal.
2-13-80 Fig. Appellees’ supp. authority. (SEND TO
PANEL) (also fid. 79-1633)
3-10-80 Fig. Order granting motion for stay of
remedial election pendente lite and further
ordering that this appeal be consolidated for
argument and disposition with Nos. 79-1633
and 80-5011 (JPC, JWP & PAK) (also filed in
Nos. 79-1633 and 80-5011)
(Cont.’d)
10. Judgment or Mandate Information
10-23-81 Jdgt. as Mdt. Issd. to Clerk (as to Jenkins)
11-12-81 Jdg. as Mdt. to Clerk (as to McMillan &
Escambia, School Board
12-10-82 Record on Appeal Retd, to Clerk (29 volume)
12-10-82 Exhibits Retd, to Clerk 4 boxes
11-23-82 Mandate Isd. to Clerk
Mandate Stayed to Order (3-12-81)
35
11. Supreme Court Information No. 80-1946
5-28-81 Notice of Fig. of Cert. Pet. on 5-19-81
9-17-81 Notice of dismissal of petition f/certiorari in
SC 9/11/81.
12-6-82 Notice of Mot. for Stay - Denied 12/2/82
2-15-83 Notice of fid. An Appeal on 2/2/83
9. Other Docket Entries (Con’t)
4-29-80 Fig. Appellants, City of Pensacola & Escam-
5/21/80
bia, et al., supp. authority, (CE) (Also filed
Nos. 79-1633 and 80-5011).
Fig. Appellees’ letter dt. 5/20/80 replying to
ct.’s letter of 5/16/80 regarding fig. of an addi
tional brief, (also fid. in Nos. 78-3507 &
79-1633) (C.E.).
10/28/80 Fig. Appellees’ letter dt. 10/21/80 calling Ct.’s
attn. to attached brief filed by U.S. in case No.
78-3241. (CE)
11-12-80 Fig. appellants’ letter of 11-5-80 as supp.
authority. (CE)
11-24-80 Fig. appellants’ Supp. Authority. (C.E.) regard
ing each local government sub. 3/10/81
PAK). Petition for rehearing and en banc,
(sub 3/11/81 PAK)
3-12-81 Fig. Order GRANTING issuance of separate
mandates for each of the governmental defend
ants in 78-3507. (SEE ORDER IN FILE) Fur
ther ORDERING Stay of mandate pending the
filing and disposition of a jurisdictional stmt
on appeal to the S.C. (PAL)
4-2-81 Fig. Appellees’ motion for restoration of in
junctions.
36
4-7-81 Fig. City of Pensacola opposition to Plaintiffs’
motion for restoration of injunction, (sub
4/7/81 PAK)
4-10-81 Fig. motion of Appellees’ for issuance of
mandate in 78-3507 to the school board. Sub
PAK 4/27/81
4- 27-81 Fig. motion of Appellees’ for issuance of
mandate in 78-3507 as to the school board.
Sub PAK 4/27/81
4/28/81 Fig. Order DENYING appellees’ motion for
issuance of the mandate as to the school
board. (PAK)
5- 11-81 Fig. Appellee, City of Pensacola Notice of Ap
peal to the U.S. Supreme Court. LTR xxxxx
9- 10-81 Fig. Joint motion for issuance of the mandate
in 78-3507 Sub PAK
9/29/81 Fig. order DENYING Joint Motion for is
suance of the mandate in 78-5307.
10/1/81 Fig. motion of Phillip M. Waltrip to In
tervene. (Sub. PAK 10/6/81)
10- 5-81 Fig. joint motion for issuance of mandate in
78-3507 and 79-1633
10- 9-81 Fig. Appellees MEMORANDUM In Support
of Motion f/issuance of the mandate & Sup
porting Motion f/Immediate Remand.
11- 3-81 Fig. JOINT MOTION F/Issuance of Mandate
as to the School Board w/MEMORANDUM.
Sub. PAK 11/8/81.
11-12-81 Fig. Order GRANTING joint motion for is
suance of the mandate as to the Escambia
County School Board. (PAK)
37
11-12-81
12-14-81
3-1-82
3-1-82
3/8/82
7/27/82
10- 29-82
11- 8-82
11-04-82
11/12/82
11/12/82
11/12/82
11/16/82
Fig. Order DENYING motion of Phillip M.
Waltrip to intervene (COLEMAN, PAK,
PECK)
Fig. Phillip M. W altrip’s REQUEST
f/Clarification. Sub xxxx 12/18/81
Fig. appellant’s STIPULATION ^Substitu
tion of Counsel.
Fig. appellant’s LETTER re Elections-CE.
Fig. order DENYING Waltrip’s request for
clarification of the Court’s order of 12/14/81.
(PAK)
Fig. appellee’s MOTION To Dissolve Stay of
Elections. Sub JCG
Fig. appellees MOTION To Dissolve Stay Of
Elections.
Fig. appellants’ OPPOSITION To The Ap
pellees’ Motion To Dissolve Stay of Elections.
Fig. order denying motion of State Associa
tion of County Commissioners for leave to file
amicus curiae brief in support for rehearing en
banc. (PAK).
Fig. appellee’s letter in response to appellant’s
opposition to appellees’ motion to dissolve
stay of elections. (Sub. supp. 11/15 Unit A&B)
Fig. motion of Sumter County for leave to
file amicus curiae brief in support for rehear
ing en banc.
Fig. motion of Hendry County Board of Com
missioners for leave to file brief as amicus
curiae in support of for rehearing en banc.
Fig. motion of Seminole County, FI for leave
to file amicus curiae brief in support of for
rehearing en banc of appellants.
38
11/16/82
11/16/82
11/18/82
11/23/82
11/23/82
11/23/82
11/23/82
11/23/82
11/24/82
4/20/83
Fig. motion of appellants for stay of mandate
pending to Supreme Court. (Sec. 3. 8) Sub.
PAK
Fig. motion of Citrus County for leave to file
amicus curiae brief in support of petition for
rehearing en banc of appellants.
Fig. response of appellees to appellants motion
for stay of mandate. (Sub. PAK 11/18/82)
Fig. order DENYING motion of Sumter
County for leave to file amicus curiae in sup
port of the suggestion of en banc. (PAK) (bh)
Fig. order DENYING motion of Hendry
County, Fla., for leave to file amicus curiae in
support of the suggestion en banc. (PAK) (bh)
Fig. order DENYING motion of Seminole
County, FLA for leave to filed amicus curiae
in support of the suggestion en banc. (PAK)
(bh)
Fig. order DENYING of Citrus County for
leave to file amicus curiae in support of sug
gestion en banc. (PAK) (bh)
Fig. order DENYING motion of Escambia
County, et al. for a stay of the mandate pend
ing application for review to the United
States Supreme Court. (COLEMAN, PECK,
PAK)
Fig. order DENIED AS MOOT the appellees’
motion to dissolve stay elections (PAK)
Fig. order of the Supreme Court noting prob
able jurisdiction.
39
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 80-5011
HENRY T. McMILLAN, e t a l .,
Plain tiffs-Appellees,
versus
ESCAMBIA COUNTY, FLORIDA, ET AL.,
Defen dan ts-Appel lants.
(Consolidated with 79-1633 & 78-3507)
Cross Appeal No. 80-51 SOX
FILED 1/3/80 (Escambia, et al.) 2-26-80 (Escambia, et al.)
Judge Winston E. Arnow
Docket Number PCA 77-0432
Location of Hearing EB
Date of Hearing 3-26-80
Hearing Panel JPC-Peck-PAK
Hon. John W. Peck
Senior Circuit Judge
613 U.S. Courthouse
APPEARANCE
DATE C-
O -
DE ATTORNEYS FOR APPELLANT
FOR ESCAMBIA COUNTY:
1/11/80 Richard Y. Lott, County Att., 23 West
Government Street, Pensacola, Florida
32501
40
4/10/80 Patricia D. Wheeler, County Atty
-do-(904) 436-5450
3/4/82 Paula G. Drummond -do-
3/26/80 RHYNE & RHYNE, William S. Rhyne,
1000 Connecticut Ave., N.W., Suite 800,
1/14/80 Washington, D.C. 20036 202/466-5420
Charles S. Rhyne -do-
1/14/80
ATTORNEYS FOR APPELLEE
BLACKSHER, MENEFEE & STEIN,
P.A., P. O. Box 1051, Mobile, Alabama
35601 (205) 433-2000
1/14/80 KENT SPRIGGS, 324 W. College Ave.,
Tallahassee, FL 32301 (904) 224-8701
JACK GREENBERG, Suite 2030, 10
Columbus Cir., N.Y., N.Y. 10019
1-16-80 EDWARD STILL, Suite 400, Com
merce Center, 2027 First Ave., North,
B irm in g h am , A lab am a 35203
205/322-6631-7479
xxxxxx See 78-3507, 79-163
1. Record, Exhibits and Brief Information
1-21-80 Record on Appeal
3-4-80 Supp. Record
2-15-80 Brief for Appellants
3-18-80 Brief for Appellees
7-23-82 Supp. Brief for Appellants CE’d to All Former
Fifth Judges
7-23-82 Supp. Brief for Appellee CE’d to All Former
Fifth Judges
2-15-80 Record Excerpts
41
2. Miscellaneous Filings
1/7/80 (E) Dup. Notice of Appeal and Clerk’s State
ment of Docket Entries
* * *
5. Calendar Information
3-10-80 Case Assigned for 3-26-80 in EB
Hearing Panel: JPC-Peck-PAKZ
3-26-80 Case Argued □ by Appellant □ by Appellee
6. Opinion Information
2-19-81 *Opinion Rendered, PAK
*issd. in typewritten form
Printed opinion distributed 3-19-81 p. 4329
7. Rehearing Information
3-3-81 Mot. for Ext. - Ext. to 4-4-81 PAK
4-3-81 Petition for Rehearing (P) (CJ) □ Ap
pellee □ Reg. □ Suggestion En Banc
10-8-82 Suggestion for Rehearing (P) On the Rehear
ing Opinion also fed. 78-3507.
10-22-82 Order denying Reh. of 04/03/81
11-04-82 Order Denying Rehearing of 10-08-82
9-24-82 Opinion S9. Also filed in 78-3507 issued in
typewritten form pp 15704
8. Motions
2-15-80 Consolidate Appeals 78-3507 & 79-1633 Ap
pellees. Dated 2-25-80, 3-10-80
11-16-82 Stay of Mandate (Appellants) Appellees
11-18-82 PAK Court Clerk. Dated 11-23-82
42
9. Other Docket Entries
1- 14-80 Fig. Appellant’s Notice of Issues on Appeal.
(Send to Screening Judge)
2- 26-80 Fig. Appellants’ Application for Stay of
Remedial election order pendente lite, etc. (sub
2-26-80 JRC)
2/29/80 Fig. Appellees’ opposition to appellants’ ap
plication for stay of elections.
3- 10-80 Fig. Order granting Appellant’s Motion for
Stay of Remedial Election Pendente Lite, and
further ordering that this appeal be con
solidated with Nos. 79-3507 and 79-1633 (JPC,
JWP & PAK) (also filed in Nos. 78-3507 and
80-5011)
4- 29-80 Fig. Appellants, City of Pensacola & Escam
bia, et al., supp.authority. (CE) (Also filed
5/21/80 78-3507, 80-5011).
5/21/80 Fig. Appellees’ letter dtd. 5/20/80 replying to
court’s letter of 5/16/80 regarding the filing of
an additional brief, (also filed in #68-3507 &
79-1633) (C.E.).
(Continued)
10. Judgment or Mandate Information
3-2-81 Bill of Costs
10- 23-81 Jdgt. as Mdt. Issd. to Clerk S9 (3-5-81) (as to
Jenkins)
11- 23-82 Jdgt. as Mdt. to Clerk
12- 10-82 Record on Appeal Retd, to Clerk (2 vols)
43
11. Supreme Court Information No. 82-1295
12-6-82 Not. of Mot. for Stay “Denied” 12-2-82
2- 15-83 Not of fig. an appeal on 2-2-83
9. Other Docket Entries (Con’t)
9-12-80 Fig. appellee’s supplemental authority (Also
filed in 79-1633)
11-12-80 Fig. A ppellant’s letter of 11-5-80 as
supp.authority. (CE)
3- 11-81 Fig. Appellees’ amended motion to extend
time for filing petition for rehearing and en
banc. (Sub 3/11/82 FAK)
3-12-81 Fig. O rder G R A N TIN G ap p ellees ,
McMILLAN, et al. ext. time to April 4, 1981
in which to file pet. for rehearing & suggestion
en banc. (See Order in File). (PAK)
3-1-82 Fig. appellant’s LETTER re Election-CE.
9- 24-82 Fig. opinion GRANTING appellees’ petition
for rehearing (regular) and VACATING opi
nion of 2-19-81; AFFIRMED and REMAND
ED (PAK) (SIGNED).
10- 19-82 Fig. State Association of County Commis
sioner’s MOTION F/Leave To File Amicus
Curiae Brief in support of petition f/rehear-
ing.
10- 29-82 Fig. appellees’ MOTION To Dissolve Stay of
Elections. Sub.
11- 8-82 Fig. appellant’s OPPOSITION To The Ap
pellees’ Motion To Dissolve Stay of Elections.
11-04-82 Fig. order denying motion of State Associa
tion of County Commissioners for leave to file
amicus curiae brief in support of suggestion
for rehearing en banc. (PAK).
44
11/12/82
11/12/82
11-12-82
11/16/82
11/16/82
11/16/82
11/18/82
11/23/82
11/23/82
Fig. appellee’s letter in response to appellant’s
opposition to appellees’ motion to dissolve
stay of elections. (Sub. xxxxxxxx)
Fig. motion of Sumter County for leave to file
amicus curiae brief in support of for rehearing
en banc.
Fig. motion of Flendry County Board of Com
missions for leave to file brief in support of for
rehearing en banc.
Fig. motion of Seminole County, Florida, for
leave to file amicus curiae brief in support of
petition for rehearing en banc of appellants.
Fig. motion of appellants for stay of mandate
pending See S. 8 (Sub PAK 11/18/82)
Fig. motion of Citrus County for leave to file
amicus curiae brief in support of for rehearing
en banc of appellants.
Fig. appellees response to appellants motion
for stay of mandate. (SUB. PAK 11/18/82.)
Fig. order DENYING motion of Sumter
County for leave to file amicus curiae in sup
port of the suggestion of en banc. (PAK) (bh)
Fig. order DENYING motion of Hendry
County, FLA, for leave to file amicus curiae in
support of the suggestion en banc. (Pak) (bh)
45
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
HENRY T. McMILLAN, ROBERT CRANE, :
CHARLES L. SCOTT, WILLIAM F. :
MAXWELL and CLIFFORD STOKES, :
Plaintiffs, :
vs. :
ESCAMBIA COUNTY, FLORIDA; GERALD
WOOLARD, KENNETH KELSON, ZEARL
LANCASTER, JACK KENNEY, MARVIN
BECK, individually and in their official
capacities as members of the BOARD OF
COUNTY COMMISSIONERS OF
ESCAMBIA COUNTY; SCHOOL DISTRICT
OF ESCAMBIA COUNTY: THE SCHOOL
BOARD OF ESCAMBIA COUNTY;
PETER R. GINDL, CAROL MARSHALL,
RICHARD LEEPER, LOIS SUAREZ, A.P.
BELL, FRANK BIASCO and JAMES BAILEY,
individually and in their official capacities
as members of the ESCAMBIA COUNTY
SCHOOL BOARD: JOE OLDMIXON
individually and in his official capacity
as SUPERVISOR OF ELECTIONS FOR
ESCAMBIA COUNTY
Defendants.
FILED
MAR 18
3.45 PM 1977
OFFICE OF CLERK
U.S. DISTRICT CT.
NORTH DIST. FLA.
PENSACOLA, FLA.
COMPLAINT
I.
Jurisdiction
Jurisdiction of this Court is invoked pursuant to 28
U.S.C. §§ 1331 and 1343. The amount in controversy ex
ceeds $10,000.00 exclusive of interest and costs. This is a
suit in equity arising out of the Constitution of the United
46
States; the First, Thirteenth, Fourteenth and Fifteenth
Amendments, and 42 U.S.C. §§ 1973 and 1983. This is
also an action for declaratory judgment under the provi
sions of 28 U.S.C. §§ 2201 and 2202.
II.
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)(2), Federal Rules of Civil Procedure.
The class which plaintiffs represent is composed of all
black citizens of Escambia County, Florida. All such per
sons have been, are being, and will adversely be affected by
the defendants’ practices complained of herein. The class
constitutes an identifiable social and political minority in
the community who have suffered and are suffering in
vidious discrimination. 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 the equal pro
tection of the laws because of the election system detailed
below. These persons are so numerous that joinder of all
members is impracticable. There are questions of law and
fact common to plaintiffs and the class they represent. The
interests of said class are fairly and adequately represented
by the named plaintiffs. The defendants have acted or
refused to act on grounds generally applicable to the class,
thereby making appropriate final injunctive relief and cor
responding declaratory relief with respect to the class as a
whole.
47
III.
Plaintiffs
A. Plaintiffs Henry T. McMillan and Robert Crane
are black citizens of Escambia County, over the age of
twenty-one years, who live within the City of Pensacola.
B. Plaintiffs Charles L. Scott, William F. Maxwell and
Clifford Stokes are black citizens of Escambia County,
over the age of twenty-one years, who live in unincor
porated areas of Escambia County, Florida.
IV.
Defendants
A. Escambia County is a political subdivision of the
State of Florida. The Board of County Commissioners ex
ercises general legislative, executive and administrative
powers for Escambia County.
B. Charles Dease, Kenneth Kelson, Zearl Lancaster,
Jack Kenney and Marvin Beck are the duly elected Com
missioners of Escambia County.
C. The School Board of Escambia County is the
supervisory and administrative body charged with
conducting the affairs of the School District of Escambia
County
D. Peter R. Gindl, Carol Marshall, Richard Leeper,
Lois Suarez, A.P. Bell, Frank Biasco and James Bailey are
the duly elected members of the School Board of Escam
bia County.
E. Joe Oldmixon is the Supervisor of Elections for
Escambia County.
48
V.
A. Escambia County is governed by a five-member
County Commission. The Commissioners are elected at-
large by the qualified voters of the County for five residen
cy districts. The partisan election uses numbered places
with a majority vote/run-off requirement. The Commis
sioners serve for four-year staggered term s.
B. The School Board of Escambia County is com
posed of seven members. Five of the members must reside
in one of five residency districts and two may reside
anywhere in the County. The candidates run for numbered
places, non partisan elections which have majority
vote/run-off requirements. The members serve for four-
year staggered terms. The members are elected at large by
the qualified voters of Escambia County.
C. Escambia County has a population of 205,334, ac
cording to the 1970 Census, of which 40,362 or 19.7% are
black. The major urbanized area is in and around the City
of Pensacola, which has 59,509 people within the cor
porate limits. There is a substantial degree of residential
racial segregation. 43% of the black citizens of Escambia
County reside in five census tracts having greater than
80% black population.
D. All of the present officeholders for the School
Board and County Commission are white. There has
never been a black citizen elected to either the School
Board or County Commission. Qualified black citizens
have sought elections to both the School Board and Coun
ty Commission, but all have been defeated in elections
characterized by racially polarized voting. The following
black citizens have unsuccessfully sought election to the
School Board: Mr. Elmer Jenkins in 1976 and Mr. O.
Leverette in 1970. The following black citizens have un
successfully sought election to the County Commission:
49
Mr. John Reed, Jr., in 1966 and 1970 and Mr. Nathaniel
Dedmond in 1970. The following black citizens have un
successfully sought election to the County Commission:
Mr. John Reed, Jr., in 1966 and 1970 and Mr. Nathaniel
Dedmond in 1970. The futility of blacks gaining seats on
the County Commission and School Board is a major bar
rier in recruiting qualified black citizens to run for these
public offices.
E. The present at-large election systems for both the
School Board and County Commission, employing
numbered places and a majority vote/run-off require
ment, operate in Escambia County to discriminate against
black residents of the County in that their voting strength
is diluted or minimized by the white majority.
F. Black citizens in Escambia County have been sub
jected to official discrimination directly in the exercise of
the franchise through devices such as the poll tax and
white primary. Additionally, other forms of official
discrimination, such as denial of equal access to educa
tional opportunities, combine to preclude blacks from ef
fectively participating in the election process.
G. The County Commission has historically been less
responsive to the needs of the black citizens than they are
to the needs of the white citizens. Black neighborhoods
have received a proportionatelly smaller share of county
services. The School Board has also been less responsive to
the needs of the black citizens than to the needs of the
white citizens. A segregated school system was maintained
until the School Board was ordered by the federal court to
desegregate. This continued policy of being less responsive
to the needs and rights of black citizens has forced the
black community repeatedly to return to the federal courts
for protection of their rights.
H. As a direct result of these and other factors, the at-
large systems of electing members of the Board of County
50
Commissioners and School Board of Escambia County, as
designed and/or presently operated, deny plaintiffs and
the class of black citizens they represent equal access to the
political process leading to nomination and election to the
County Commission and School Board and, with respect
to said black citizens, are fundamentally unfair, all in
violation of their rights protected by the First, Thirteenth
and Fifteenth Amendments to the Constitution of the
United States; both the Due Process and Equal Protection
Clauses of the Fourteenth Amendment; the Voting Rights
Act of 1965, 42 U.S.C. § 1973; and the Civil Rights Act of
1871, 42 U.S.C. § 1983.
VI.
Plaintiffs and the class they represent have no plain,
adequate or complete remedy at law to redress the wrongs
alleged herein, and this suit for a permanent injunction is
their only means of securing adequate relief. Plaintiffs and
the class they represent are now suffering and will con
tinue to suffer irreparable injury from the unconstitu
tional election system described herein.
WHEREFORE, plaintiffs respectfully pray this Court
to advance this case on the docket, order a speedy hearing
at the earliest practicable date, cause this action 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 systems complained
of herein violate the First, Thirteenth, Fourteenth and Fif
teenth Amendments to the Constituiton of the United
States and 42 U.S.C. §§ 1973 and 1983.
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, supervising, or certifying the
results of any election for the School Board of Escambia
51
County and the Board of County Commissioners of
Escambia County under the present election systems.
3. Order the apportionment of Escambia County
School Board and the Escambia County Commission so
that all members are elected from single member districts
and the voting strength of black citizens is not debased,
diluted, minimized or canceled out.
4. Award plaintiffs and the class they represent their
costs in this action including an award of reasonable at
torneys’ fees.
5. Grant such other and further equitable relief as the
Court may deem just and proper.
CRAWFORD, BLACKSHER, FIGURES
& BROWN
1407 DAVIS AVENUE
MOBILE, ALABAMA 36603
By:___________________ ____________
J.U. BLACKSHER
LARRY T. MENEFEE
KENT SPRIGGS, ESQUIRE
324 WEST COLLEGE AVENUE
TALLAHASSEE, FLORIDA 32301
JACK GREENBERG, ESQUIRE
ERIC SCHNAPPER, ESQUIRE
SUITE 2030
10 COLUMBUS CIRCLE
NEW YORK, N.Y. 10019
Attorneys for Plaintiffs
52
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
HENRY T. McMILLAN, ET AL., )
Plaintiff )
)
vs. ) CIVIL ACTION
) NO. PCA
ESCAMBIA COUNTY, FLORIDA, ) 77-0432
ETAL., )
Defendant. )
_____________________________________ )
ANSWER AND AFFIRMATIVE DEFENSES
ESCAMBIA COUNTY
Subject to their affirmative defenses contained herein
and to any and all affirmative defenses and motions filed
by the other defendants in this action, the Defendants,
Escambia County, Florida, Charles Deese (erroneously
referred to as Charles Dease in the Complaint), Kenneth
Kelson, Zearl Lancaster, Jack Kenny, Marvin Beck, in
dividually and in their official capacities as members of
the Board of County Commissioners of Escambia County,
and Joe Oldmixon, individually and in his official capacity
as Supervisor of Elections for Escambia County, and for
their answer to the complaint of Plaintiffs say:
I
Jurisdiction
Said Defendants admit the jurisdiction of this Court is
invoked pursuant to 28 U.S.C. § 1343, but deny each and
every other allegation contained in paragraph I of the
Complaint.
II.
Class Action
Said Defendants deny each and every allegation con
tained in paragraph II of the Complaint.
III.
Plaintiffs
Said Defendants allege that they are without knowledge
or information sufficient to form a belief as to the truth of
the allegations contained in paragraph III of the Com
plaint and, therefore, deny same.
IV.
Defendants
Said Defendants allege that they are without knowledge
or information sufficient to form a belief as to the truth of
the allegations contained in paragraph IV, subparagraphs
C and D of the Complaint and, therefore, deny same; ad
mit the allegation of paragraph IV, subparagraph A, ex
cept that defendants deny having any responsibility for the
establishment or continuation of the present electoral
system for County Commissioners; admit the allegations
of subparagraphs B and E of paragraph IV, except that
Charles Deese is erroneously referred to therein as Charles
Dease.
54
V.
Said Defendants admit the allegations of subparagraph
A of paragraph V, except defendants deny there is any run
off requirement for general elections; allege that they are
without knowledge or information sufficient to form a
belief as to the truth of the allegations contained in
paragraph V, subparagraph B of the Complaint and,
therefore, deny same; admit that Escambia County had a
population of 205,334, according to the 1970 Census, of
which 40,362 or 19.7% are black and that the major ur
banized area is in and around the City of Pensacola, which
has 59,507 people within the corporate limits, but deny
each, and every other allegation contained in paragraph V,
subparagraph C, of the Complaint; admit that all of the
present officeholders for the County Commission are
white, but allege that they are without knowledge or in
formation sufficient to form a belief as to the truth of the
allegations contained in the balance of paragraph 5, sub-
paragraph D, of the Complaint and, therefore, deny same;
deny each and every allegation contained in paragraph V,
subparagraphs E, F, G, and H, of the Complaint.
VI.
Said Defendants deny each and every allegation con
tained in paragraph VI of the Complaint.
VII.
Said Defendants are obligated to pay expenses for costs
and attorneys fees for the defense of this action.
55
The Complaint fails to state a claim against said Defend
ants upon which relief can be granted.
SECOND DEFENSE
The Complaint fails to state a cause of action because of
its failure to allege a discriminatory intent on the part of
said Defendants, or any other person, in establishing the
election system complained of.
THIRD DEFENSE
The Complaint fails to state a cause of action against
said Defendants in their respective individual capacities
because of its failure to allege any acts by said Defendants
in their individual capacities and because of its failure to
pray for any relief from said Defendants in their in
dividual capacities as opposed to any relief from said
Defendants in their respective representative capacities. In
the Complaint no acts of commission or omission are at
tributed to any of said Defendants in their individual
capacities. But, both from the caption and text of the
Complaint, it is obvious that the Plaintiffs are attempting
to sue both the Board of County Commissioners of
Escambia County, Florida, a corporate entity which func
tions solely through its members in their representative
capacities and the Supervisor of Elections as the individual
members thereof personally, although the Complaint con
tains no allegations whatsoever of any individual acts done
to, or omitted duties owed to, the Plaintiffs.
FIRST DEFENSE
56
The relief prayed for by the Plaintiffs in their Com
plaint is impossible of performance by said Defendants
since the election systems complained of in the Complaint
and the conduct of the elections sought to be enjoined
therein are not among the constitutional or statutory
powers of said Defendants in their representative
capacities but rather are, according to the Constitution
and laws of the State of Florida, wholly within the powers
and responsibilities of other officials, some of whom are
not made parties to this suit and are not, therefore, within
the jurisdiction of the Court. In doing any of the acts com
plained of in the Complaint, said Defendants were duly
authorized by and acted under the authority of State law.
FIFTH DEFENSE
The State of Florida, the Department of State of the
State of Florida, and Reubin O’D. Askew, Governor of
the State of Florida, need to be joined in this action for a
just adjudication of the issues. They are subject to service
of process and their joinder will not deprive the court of
jurisdiction over the subject matter of this action. In their
absence, complete relief cannot be accorded among those
already parties and they claim an interest relating to the
subject matter of this action and are so situated that the
disposition of the action in their absence may as a practical
matter impair or impede their ability to protect that in
terest and leave Defendants subject to a substantial risk of
incurring double multiple, or otherwise inconsistent
obligations by reason of their claimed interest.
FOURTH DEFENSE
57
The alleged claims asserted against said Defendants do
not arise out of the same transactions, occurences, or
series of transactions or occurences as the claims asserted
against the other Defendants in this action, nor do the
alleged claims involve questions of law or fact common to
all Defendants. Said Defendants will, therefore, be put to
undue expense if they are required to proceed with their
defense without a severance of the issues. The trial of the
action will be confused by a joint trial of the claims
asserted against said Defendants and against the other
Defendants in this action, all to the prejudice of said
Defendants and, therefore, the claims asserted against said
Defendants should be severed from the claims asserted
against the other Defendants in this action and tried
separately.
SIXTH DEFENSE
LAST DEFENSE
Said Defendants hereby adopt all other motions,
memoranda in support thereof, and defenses herein filed
on behalf of the other Defendants in this action as their
own motions, memoranda in support thereof, and
defenses in the same manner and to the same extent as
though each paragraph thereof were herein fully set forth.
WHEREFORE, said Defendants pray that the Com
plaint be dismissed with prejudice and that they be
awarded their attorney’s fees and costs.
RICHARD I. LOTT
COUNTY ATTORNEY
/%/
58
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing
Answer and Affirmative Defenses was furnished by
regular U.S. Mail to James U, Blacksher, Attorney for
Plaintiffs, 1407 David Avenue, Mobile, Alabama 36603;
Larry T. Menefee, Attorney for Plaintiffs, 1407 Davis
Avenue, Mobile, Alabama 136603; Kent Spriggs, Attorney
for Plaintiffs, 324 West College Avenue, Tallahassee,
Florida 32301; Jack Greenberg, Attorney for Plaintiffs,
Suite 2030, 10 Columbus Circle, New York, N.Y. 10019;
Eric Schnapper, Attorney for Plaintiffs, Suite 2030, 10
Columbus Circle, New York, N.Y. 10019; Charles S.
Rhyne, Esquire, 400 Hill Building, Washington, D.C.
20006, Louis F. Ray, Jr., Attorney for the School Board
of Escambia County, Sixth Floor Seville Tower, Pen
sacola, Florida 32501; Don Caton, attorney for the City of
Pensacola, City Hall, Pensacola, Florida 32501, this 27th
day of April, 1977.
/s /
RICHARD I. LOTT
COUNTY ATTORNEY
59
CONSOLIDATION ORDER
[CAPTION OMITTED IN PRINTING]
ORDER
It is ORDERED:
1. These cases are consolidated for the purpose of
discovery only.
2. Originals of all depositions will be filed in 77-0432,
with a copy of each such deposition filed in 77-0433, and
with the parties agreeing, and the court approving, that
the copy of each deposition filed in such suit shall be
utilized as fully and to the same extent as though it were
the original.
3. McMillan, et al. vs. Escambia County, Florida, et
al., No. 77-0432, and Jenkins, et al. vs. City o f Pensacola,
et al., No. 177-0433, are hereby conditionally certified as a
class action under Rule 23(b)(2), Federal Rules of Civil
Procedure, with the class defined as all black citizens in
Escambia County and the City of Pensacola, respectively.
This conditional certification under Rule 23(c), Federal
Rules of Civil Procedure, may be altered or amended
before decision on the merits, if appropriate.
4. Counsel for all parties will submit memoranda of
law by May 30, 1970 on the following issues:
(a) whether the State of Florida, the Governor and
the Department of State are indispensable parties in No.
77-0432 and No. 77-0433; and
(b) whether these actions should proceed against
members of the County Commission, County School
Board and City Council in their individual capacities.
5. Unless time is extended by order of the court for
good cause shown, all discovery proceedings, including
60
depositions of witnesses to be uses for trial purposes, in
these cases must be completed on or before August 18,
1977.
6. No motion seeking extension of time will be granted
unless such motion is served and filed sufficiently in ad
vance of the discovery completion date to allow it to be
heard and disposed of, under the local rules of this court,
on or prior to such discovery completion date.
DONE AND ORDERED this 18th day of May, 1977.
/s /__________
WINSTON E. ARNOW
Chief Judge
61
ARNOW, C. J. LETTER TO COUNSEL OF RECORD
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
West Office Box 12347
Pensacola, Florida 32581
Winston E. Arnow
Chief Judge August 4, 1977
Re: Henry T. McMillan, et al. vs.
Escambia County, Florida, et al.,
PCA 77-0432; Elmer Jenkins, et al.,
vs. City of Pensacola, Florida, et al.,
PCA 77-0433
Gentlemen:
As all of you know, by order of May 18, 1977, I re
quired that the parties submit memoranda on two issues
raised by certain “defenses” included in defendants’
answer — one was the question whether the State, the
Governor and the Department of State are indispensable
parties. The other was the question whether these actions
should proceed against the individual defendants in their
individual capacities.
When there is a lack of necessary or proper parties, it is
my understanding that such matter is properly brought
before me by motion. My understanding of the rule is that
motion is also required to dismiss a party who is not pro
perly a party.
These questions concerned me during initial hearings
because obviously if certain parties need to be joined they
should be brought into the suit at an early stage so that we
are not confronted with going back into discovery or other
proceedings that took place before they were in the suit.
62
Since these issues are raised as defenses, I cannot now
resolve them. I have, however, gone over the memoranda
presented.
Counsel of Record August 4, 1977
PC A 77-0433
I have reached the conclusion neither the State, the
Governor nor the Department of State are indispensable
parties and, for that matter, even proper parties.
Insofar as the action’s proceeding against the individual
defendants in their individual capacities, relief sought, if
granted, must, of course, be given against them in their
representative capacities. Nonetheless, because of possible
problems of enforcement which would run against them
personally if such were to be required, it seems to me it
may be that they should be retained in their individual
capacities.
In any event, I do not see how much harm can be done
by retaining them in their individual capacities, and I have
no motion before me on which I can take action.
I assume that these matters can and will come up before
me at some future time on pretrial conference or the like
where they may properly be handled. As stated, I do not
reach the conclusion there is any necessity for adding any
parties at the present time.
Sincerely yours,
/%/_________ ________
WINSTON E. ARNOW
63
Copies to:
James U. Blacksher, Esq.
Larry T. Menefee, Esq.
Kent Spriggs, Esq.
Jack Greenberg, Esq.
Eric Schnapper, Esq.
Don J. Caton , Esq.
Charles S. Rhyne Esq.
William S. Rhyne, Esq.
Donald A. Carr, Esq.
Richard I. Lott, Esq.
Louis F. Ray, Jr., Esq.
Clerk, U.S. District Court, Pensacola, FL
64
[CAPTION OMITTED IN PRINTING]
PRETRIAL STIPULATION
Pursuant to the second amended order for pretrial con
ference entered April 13, 1978, the parties jointly submit
the following pretrial stipulation:
A. Basis of Federal Jurisdiction
This Court has jurisdiction of the subject matter and the
parties to these actions pursuant to 28 U.S.C. § 1343.
Plaintiffs also assert the Court’s jurisdiction pursuant to
28 U.S.C. § 1331.
B. Concise Statement of the Nature of the Action
These actions, conditionally certified as class actions,
concern the constitutionality and lawfulness of the con
tinued use of at-large elections of members of the Board of
County Commissioners of Escambia County, and the
School Board of Escambia County in light of alleged dilu
tion, or minimization of black voting strength.
[32] C. Brief, General Statement
of Each Party’s Case
(1) for plaintiffs
1. Plaintiffs contend that the at-large election of
County Commissioners and School Board members denies
plaintiffs and the class of black citizens they represent
equal access to the political process leading to nomination
and election to said governmental bodies. Plaintiffs con
tend that, accordingly, the at-large election systems are
fundamentally unfair, with respect to black citizens, and
violate their rights protected by the first, thirteenth and
65
fifteenth amendments to the Constitution of the United
States; both the Due Process and Equal Protection
Clauses of the fourteenth amendment; the Civil Rights Act
of 1870, 42 U.S.C. § 1971 (a)(1); the Voting Rights Act of
1965, 42 U.S.C. § 1973; and the Civil Rights Act of 1871,
42 U.S.C. § 1983.
2. Plaintiffs will attempt to prove their constitutional
and statutory causes of action according to the elements of
proof prescribed in the quartet of recent decisions contain
ing the latest word from the Fifth Circuit concerning dilu
tion of minority voting rights by multimember districts.
Nevett v. Sides, _____ F.2d___ __(5th Cir., March 29,
1978); Bolden v. City o f M obile,_____ F.2d_____ (5th
Cir., March 29, 1978); Bull v. City o f Shreveport,
_____ F .2d_____ (5th Cir., March 29, 1978).
3. Accordingly, plaintiffs contend, the evidence will
show intentional, invidious racial discrimination by the
State of Florida, its officers and subdivisions according to
the following alternative standards.
a. The systems of at-large elections in both the primary
and general elections, with respect to the County Commis
sion and the School Board, were each designed and have
been maintained purposefully and invidiously to
discriminate against black voters.
b. Regardless of direct and circumstantial evidence of
their specific racially discriminatory intent, the aforesaid
at-large election systems carry forward and perpetuate the
effects of past intentional devices employed by the State to
discriminate against black voters.
c. Intentional racial discrimination is demonstrated in
the aforesaid at-large election systems by the presence of
an aggregate of the factors set out in Zimmer v.
66
McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), affd
sub nom. East Carroll Parish School Board v. Marshall,
424 U.S. 636 (1976).
4. The majority opinions Nevett, Bolden and Bull, not
withstanding, plaintiffs contend that the evidence will
establish that the aforesaid at-large election systems
[33] have the effect of minimizing or cancelling out the
voting strength of the black minority in Escambia County
and the City of Pensacola, and that, regardless of their in
tent, these election systems violate the fifteenth amend
ment and the Civil Rights Act of 1870 and the Voting
Rights Act of 1965. See Nevett v. Sides, supra, (Judge
Wisdom concurring).
5. Plaintiffs seek the following relief:
a. A declaratory judgement that the election
systems complained of herein violate the constitutional
amendments and statutes set out above;
b. An order enjoining the defendants, and each of
them, their agents, successors, attorneys and those acting
with them and at their direction from holding, supervis
ing, or certifying the results of any election for the Board
of County Commissioners of Escambia County and the
School Board of Escambia County under the present elec
tion systems;
c. An order requiring that the aforesaid local
governmental bodies be apportioned into single-member
districts so that all members of the County Commission
and the School Board will be elected in a manner that
avoids debasing, diluting, minimizing or cancelling out the
voting strength of black citizens;
d. An award of plaintiffs’ attorneys’ fees and costs;
67
e. Such other and further equitable relief as the
Court may deem just and proper.
(2) for defendants
Plaintiffs’ lawsuit rests solely on the unsupportable con
stitutional premise that blacks have a federally guaranteed
right to representation by blacks.
Defendants have a legitimate governmental interest in
an at-large electoral system instituted and maintained for
reasons which are wholly non-discriminatory. At-large
elections insure that a County Commissioner or School
Board member will have a county-wide perspective
thereby alleviating the ward-heeling phenomenon that ac
companies single-member district election systems. At-
large elections afford all voters and interest groups an op
portunity to influence the performance of all Commis
sioners and School Board members. Black citizens of
Escambia County have equal access to all facets of the
local political processes. There are no restrictions, formal
or informal, on black registration, voting, candidacy for
office or any other aspect of electoral participation. The
support of black voters is actively sought by all candidates
for office and is often decisive. There is no evidence of any
correlation whatever between the voters’ race and their
ballot choices in elections that have not involved black
[34] candidates. White Escambia County voters have on
numerous occasions demonstrated they will cast their
ballots for qualified black candidates.
Given these voting patterns, County Commissioners
and School Board members must be equally responsive to
the interests of black citizens. The record of their perform
ance shows that they are. Indeed, the Escambia County
blacks have far more real political power under the pre
68
sent at-large electoral structure than they would under the
single-member system which plaintiffs ask this Court to
establish. Under such a system only one County Commis
sioner and School Board member would have any substan
tial black constituents and the rest would have little or no
reason to consider black political interests. Any polariza
tion that exists would actually increase or be exacerbated
in a predictable four to one vote.
* * * *
F. Concise Statement of Facts Which Are Admitted
and Will Require No Proof at Trial
1. According to the latest complete United States Cen
sus figures (1970), Escambia County has a population of
205,334, of whom 163,014 or 79.4%, were white persons;
40,362 or 19.7%, were black persons. There were then
80,371 registered voters, of whom 67,297 or 83.8% were
white and 13,037 or 16.2% were black. There were then
96,517 white persons of voting age, of whom 69.7% were
registered to vote, and 19,485 black persons of voting age,
of whom 66.9% were registered to vote.
According to the 1960 census, the Black population of
Escambia County twenty-one (21) years of age and older
was 76,688. There were 9,148 blacks (50.7%) and 53,865
whites (70.2%) registered to vote.
2. The Board of County Commissioners serves as the
legislative and governing body of Escambia County, the
Commission appoints a County Administrator who is the
chief administrative head of the County and who carries
out the policies of the Commission and administers all
departments of the County government. Prior to adopting
a County Administrator’s ordinance in 1977, the Commis
sioners had full authority to administer the day-to-day
69
operation of county business. All employees within the
County’s administrative departments are selected and
employed by the County Administrator pursuant to
regulation of the County Civil Service Board, whose
members are appointed by the Governor of Florida. The
employment of County department heads, who are not
within the Civil Service system, is subject to confirmation
by the Commission, however.
3. Since Escambia County has no charter, the Com
missioners have traditionally had to act within the
guidelines provided by the Florida Legislature in general
law and by special or local laws applicable to this County.
However, since the 1968 amendments to the Constitution
of Florida, and subsequent home rule legislation, the
County Commission can now pass ordinances and enter
into agreements with other governmental agencies, as
necessary for the exercise of its powers.
4. The County Commission is authorized to plan for
development, establish zoning and business regulations on
their own volition, set the budget for all County agencies,
set the County millage, issue bonds for lawful purposes,
issue franchises for utilities, and review rates charged for
public services. The Commission also approves financial
obligations of the County, has charge of all County
buildings, appoints various citizen boards, approves plats
for subdivisions, provides legal representation for the
County, alters County Commission district boundaries
upon the recommendation and approval of the Supervisor
of Election and provides for County roadbuilding and
maintenance. Other powers include hospital and am
bulance service, health, fire protection, welfare, recrea
tional and cultural facilities and programs.
5. Members of the Escambia County Commission are
elected at-large by the qualified voters of the entire Coun
70
ty. Each Commissioner must reside in one of five residen
cy districts. The Commissioners serve for four-year stag
gered terms, and receive an annual salary of $20,402.88.
The terms of the Commissioners residing in residency
district 2 (Kelson) and 4 (Kenney) will expire in November
1973. The terms of the other three Commissioners will ex
pire in November 1980. There is a majority vote require
ment in the primary elections. Candidates run for
numbered places.
6. Article VIII, Section 5 of the Constitution of the
State of Florida, (1885) ratified in 1900, provided that
county commissioners shall be elected by the qualified
electors of said county. For some number of years prior to
1954, candidates for County Commission were nominated
only by the voters of their several residency districts. In
1954, the Florida Supreme Court held the single-member
district nomination process to be violative of the Florida
Constitution.
7. Florida law provides for single, County-wide school
districts as a part of the constitutionally-mandated
“uniform [state] system of free public schools”. The school
district o f Escambia County is governed by state laws,
rules and regulations and minimum standards o f the State
Board o f Education, and its administrative and super
visory agency, the State Department o f Education, and
policies adopted by the School Board o f Escambia Coun
ty, which is the local governmental body charged with
organizing and controlling the public schools of the
School District of Escambia County. Responsibility for
the administration of the schools and for the supervision
of instruction in the district is vested in the Superintendant
of Schools, a separate constitutional officer who, in
Escambia County, is elected. The School Board is com
posed of seven members, all elected at-large by the
71
qualified voters of the County. Five of the members must
reside in one of five residency districts, and two may
reside anywhere in the County. School Board members
serve for four year staggered terms. The terms of members
residing in residency districts 1 (Bell), 3 (Leeper), and 5
(Gindl) will expire in November 1978. The terms of
members residing in residency districts 2 (Suarez) and 4
(Mashall) and of at-large members Biasco and Bailey will
expire in November 1980.
8. By law, the School Board has qualified final ap
proval of instructional personnel recommended for
employment by the Superintendent and of non-
instructional personnel recommended for employment by
the Superintendent from the Civil Service Service roster.
The Board also must approve purchases and payments,
adopts the annual budget recommended by the
Superintendent, and decides school location and construc
tion questions.
9. The Escambia County school system includes 168
school centers. The system provides general and special
education for children from kindergarten through grade
12 plus vocational training and community schools for
adults. The 1977-78 enrollment was approximately 47,000
students.
10. Florida law directs that the Board establish a
School Advisory Committee broadly representative of the
community served by the school for each school in the
district and composed of teachers, students, parents, and
other citizens. Each Committee assists the principal in the
preparation of his annual school report on the status of
education. Members of the School Advisory Committees
are appointed by the principals of the various schools pur
suant to law.
72
11. The Supervisor of Elections is a constitutional of
fice, elected for a four-year term. He is in charge of
registration of voters, qualification of candidates for local
offices, appointment of poll workers, supervision of
voting, issuance of absentee ballots, canvassing election
results together with the chairman of the County Commis
sion and with a County judge, and certification of elec
tions.
12. A permanent registration roll is kept current by the
Supervisor of Elections, who mails renewal cards in the
fall preceding general elections to each elector who has not
voted in the past four years. Names of those failing to
return their renewal cards are withdrawn from the
registration records; those having voted within the four
years are carried on the rolls. Names of persons removed
from the registration rolls can be reinstated anytime the
registration books are open. Members of the armed forces
and members of their families, citizens of the United States
who are permanent residents of the State of Florida who
are temporarily residing outside of the County, the
physically disabled, and residents of the State who are
unable to register in person may register by mail when the
books are open by making application for absentee
registration. The law requires that registered voters notify
the Supervisor of changes of address and that they must
re-register if they change their names or wish to change
their party afiliation. The registration books close 30 days
before the first primary election.
13. The racial identification of voters on the registra
tion rolls is set forth on the voters’ registration identifica
tion cards on file in the Supervisor of Election’s office,
pursuant to Section 97,071, Florida Statutes.
14. For election purposes, Escambia County is divided
73
into precincts by the County Commission upon the recom
mendation and approval of the Supervisor of Elections,
There are now 96 precincts in Escambia County. A citizen
votes in the precinct in which he or she resides. The Coun
ty Commission and School Board elections are partisan;
that is, candidates are nominated through primary elec
tions. In order to vote in the primary, a citizen must
register as a Democrat or Republican and must vote his or
her stated party preference. Independents may not vote in
party primaries. Parties having a number of registered
voters equal to at least 5% of the total number of
registered voters in the state on January 1 of a general elec
tion year are given major party status and are required to
utilize the primary election process to nominate their can
didates for the general election. Voters are not required to
follow any party lines in a general election.
15. A qualified candidate may offer himself in a
primary election, provided that he pays the specified fee
and takes an oath of loyalty to the party. The qualification
fee for the primary election is 3% of the annual salary of
the office sought plus another two percent for the party
executive committee. A candidate who canot pay the filing
fee without imposing an undue burden on his or her per
sonal resources or on resources otherwise available to the
candidate, may have his or her name placed on the ballot
by means of a petition signed by 3*7o of the registered elec
tors of the party in the County. A majority of the votes
cast is required for primary nomination. If there is no ma
jority, the two leading candidates run in a second primary,
or runoff, three weeks later.
16. The major parties are governed by the state and
county executive committees, elected by the registered
voters of the respective bodies. As of 1977, there were
84.690 Democrats, 13,948 Republicans, and 3,307 others
74
registered in Escambia County. Each party executive com
mittee is composed of one man and one woman from each
precinct, except in precincts of over 1,000, where two men
and two women serve. The present committees were
elected in 1976 for four-year terms.
17. Since 1945 there have been no racially designated
legal restrictions on the ability of black citizens of Escam
bia County to register, vote or campaign for the County
Commission or School Board.
18. There are no formal candidate “slating” organiza
tions involved in County Commission or School Board
elections. There have been various, less institutionalized,
“endorsing” groups which have sought support for various
candidates for the County Commission and School Board.
These groups have endorsed both black and white can
didates.
19. The filing fee for candidates for primary elections
for the County Commission and the School Board is 5°7o
of the annual salary. The annual salary of County Com
missioners in Escambia County is $20,402.88. For pur
poses of computing the filing fee, the annual salary of
School Board members is $2400. Candidates for whom the
filing fee is an undue financial burden may qualify by ob
taining a petition from 3% of the registered voters of the
party by which the candidate seeks nomination. A 5%
petition requirement existed prior to 1978, Section 99.092
and 99.095, Florida Statutes.
20. On four occassions in history (all in the last ten
years) a black candidate has run for Escambia County
Commission. No black has ever been elected. John Reed,
a black candidate in 1966, received 8,225 votes, compared
with 14,592 for Cobb, 9,017 for Fredrickson, and 4,298
for Ward, the white opponents. Elmer Jenkins, a black
75
candidate in 1968, received 9,704 votes in the first
primary, compared with 19,168 for Armour, 8,159 for
Gindl, and 4,901 for Whatley, the white opponents. In the
primary runoff, Jenkins received 14,636 votes and Ar
mour 25,408. Nathaniel Dedmond, a black candidate in
1970, received 7,373 votes, compared with 19,700 for Ken
ney and 8,658 for Davis, the white opponents in the
democratic primary. John Reed ran again in 1970 and
received 5,240, compared with 11,840 for Barnes, 9,557
for Cobb, and 9,037 for Kelson, the white opponents.
21. On five occasions in history (all in the last seven
years) a black candidate has run for the Escambia County
School Board. No black has ever been elected. Otha
Leverette, a black candidate in 1970, had no opposition in
the Democratic primary. He received 21,065 votes in the
general election, compared with 22,523 for Republican
Richard Leeper, the white opponent. Elmer Jenkins, a
black candidate in 1974, received 12,275 votes, compared
with 10,933 for Sanders, the white opponent, in the only
primary. In the general election, Jenkins received 21,098
votes, compared with 22,547 for incumbent Leeper. Eddie
Stallworth, a black candidate in 1974, ran as a Republican
in the general election. He received 9,673 votes, compared
with 32,612 for Bell, his white opponent. Donald Spence,
a black candidate in 1976, received 15,956 votes in the first
primary, compared with 10,079 for Marshall and 10,717
for Smith, who are both white. He lost to Marshall in the
runoff 29,106 to 19,176. Elmer Jenkins sought election
again in 1976 and received 12,257 votes in the first
primary, compared with 9,765 for Bailey, 5,244 for
Forester, 1,362 for King, 5,606 for Lee, 5,071 for MacGill
and 1,173 for Southard, all white candidates. He lost to
Bailey in the runoff 26,786 to 20,526.
76
22. With respect to the responsiveness of County
government to the needs of black citizens, Plaintiffs do
not plan to contest the delivery of services in the following
areas: water; sewers; traffic control; fire hydrants; mos
quito control; library services; ambulance service; garbage
collection and disposal; drainage planing; housing and
corrections.
23. With respect to School Board responsiveness,
Plaintiffs have no plans to contest the Board’s failure to
comply with the Court’s orders in Augustus v. School
Board o f Escambia County since entry of the terminal
desegregation order in April 1969. However, Plaintiffs
will contend that certain legal positions taken by the Board
in Augustus have failed to reflect the interests of the ma
jority of black citizens. In addition, Plaintiffs will only
challenge the Board’s record of appointments of a non
employment type to advisory boards, committees and
councils and the Board’s alleged racial application of
suspension and expulsion policies.
77
[CAPTION OMITTED IN PRINTING]
PRE-TRIAL ORDER
1. This is the pre-trial order that is entered in both of
these cases. All of the matters included in the pre-trial
stipulations in these two cases are made a part of the order
insofar as it pertains to such case, except to the extent such
may be altered or amended at the pre-trial conference.
2. At pre-trial hearing the court concludes that these
cases will be consolidated for trial with, however, there be
ing reserved the right of any party during the trial, or the
court on its own motion, to sever for trial should it appear
during the course of the trial that severance of the cases
for completion would be advisable.
3. At pre-trial conference there is some question raised
whether the matter contained in the second paragraph
under paragraph F5 of the pre-trial stipulation is correct.
The question presented is what is the exact situation
respecting the majority or plurality vote in runoff elections
insofar as the general election is concerned, and with this
being limited to the School Board and County Commis
sion. Prior to trial the parties will check out the law and by
stipulation to be made a part of the record in this case set
forth with exactness what the situation is respecting such.
4. At pre-trial conference it was agreed that as a mat
ter of law those seeking election to the School Board in
Escambia County, Florida, qualify in and run for election
from a numbered position.
5. At pre-trial conference it is stipulated and agreed be
tween the parties as follows: that in elections in both
citywide and countywide races since 1955, with a few pur
ported exceptions, there has been no racially polarized
voting in elections in which all candidates were white.
78
6. At pre-trial conference it was agreed between all
parties that where they have stipulated there were no for
mal candidate “slating” organizations involved in elections
they mean by that that there has been no regularly con
stituted organization that regularly presented a slate of
candidates in an election such as might be done by a
political party — that neither the Democratic nor the
Republican party in this county in any of these elections
does, either in city council elections or in School Board or
County Commission elections, insofar as primaries are
concerned, come forward with a slate of candidates, and
that in the primary elections the parties do not support or
endorse any candidate, although both parties in the
general election endorse whoever their nominees have been
as a result of the primaries.
7. It is stipulated at the pre-trial conference as follows:
a fairly constructed single-member district system for the
election of Escambia County Commissioners and Escam
bia County School Board members would produce one
black majority County Commission and School Board
district each out of five.
8. At pre-trial conference defendants’ objection to
plaintiffs’ attempt to base a cause of action on the 1870
Civil Rights Act because it was not pleaded in the com
plaint is overruled on the ground. The fact it was not
pleaded will not keep them from pursuing it for whatever
it is worth here.
9. At pre-trial conference the question of dismissal of
the parties defendant in their individual capacities was
presented to the court on motion. It was made clear at the
pre-trial conference that plaintiffs do not seek under the
complaint filed in this case and will not seek any judgment
for attorney’s fees or court costs against these parties in
79
their individual capacities and the court agrees that in the
pleadings presented to the court there would be no basis
for any such relief against them individually.
The court does conclude that they should be left in for
purposes of injunctive relief and for purposes of enforce
ment of any injunctive decree entered, if such is entered.
For that reason such motion is denied.
10. Prior to trial, in the light of possible changes in
defendants before the court in the representative capacities
the parties will jointly agree on what changes have been
made and under the rules come before this court and
substitute those who now should be here in such represen
tative capacities.
Inasmuch as these defendants are left in individually the
substitution will take out of this case both individually and
in their representative capacity those who are no longer in
office and will substitute those now in office in their place
individually and in such representative capacity.
11. Prior to trial the parties will endeavor to agree on
such newspaper clippings or items that plaintiffs wish to
present in evidence, and to the extent they are unable to
agree, will each provide the court with memorandum of
law going into the admissibility at the trial of this case,
such to be done no later than May 12, 1978.
12. Prior to trial the parties will endeavor to stipulate
on the events occurring in the constitutional convention
now convened respecting the question of single districting
and at-large districting and the actions of the commission
in connection therewith, to avoid the necessity of proof
thereof at trial.
13. At the trial of this case qualification of experts will
be done by the parties in this way: each counsel present
80
ing an expert will have a list of that witness’s qualifications
as an expert and will read them to the expert and will ask
the expert to state whether or not as read they are correct
in order to save time in qualifying him as an expert.
14. The parties at the pre-trial conference have agreed
with each other and before the court that respecting the ex
hibits of the respective parties no objection on authenticity
or foundation proof requirements will be made to any ex
hibit but the parties have reserved the right to object to
such exhibits on other grounds. Prior to trial each party
will go over the exhibits of the other parties and in con
sultation, if necessary, will endeavor to agree to the full
extent possible on such exhibits that will be coming into
evidence without objection of any kind. The foregoing rul
ing does not mean that regression analyses will be placed
in evidence without being established for such purpose by
testimony of the expert who is presenting them.
15. Respecting the regression analyses, the defendants
prior to trial will go over them to see whether or not they
have objections based on the record showing that they are
not valid statistical analyses of whatever is involved in
them, with the viewpoint of trying to save time at trial, if
possible.
16. Plaintiffs are granted leave to take the deposi
tions of defendants’ three experts whom they have recently
announced they propose to call at trial, in advance of trial.
17. There is added to the list of witnesses for the city
the name of Steve Garman, Westminister, Colorado.
18. Exhibits 26, 27 and 32, at the request of counsel
for the defendant city, are stricken from the pre-trial
stipulation.
81
19. Respecting all exhibits, the parties will endeavor to
agree before trial which ones are coming in without objec
tion and, to the extent that they are unable to agree and
there is an evidentiary problem involved, will advise the
court and each other with memorandum concerning such
no later than May 12, 1978.
20. There is added to defendant County Commission’s
proposed list of exhibits a copy of the Escambia County
Civil Service Board Rules and Regulations.
21. This case is set for trial commencing at 9:00
o’clock A.M. On Monday, May 15, 1978.
DONE AND ORDERED this 12 day of May, 1978.
WINSTON E. ARNOW
Chief Judge
United States District Court
82
[CAPTION OMITTED IN PRINTING!
NOTICE OF PROPOSED COUNTY CHARTER
NOTICE IS HEREBY GIVEN of a proposal by the
Escambia County Charter Commission, created pursuant
to Chapter 78-505, Laws of Florida, for a charter form of
government for Escambia County. A certified copy of the
proposed charter, as filed in the office of the Comptroller
of Escambia County, is attached as an appendix hereto. In
accordance with the authority granted to it by the
aforesaid law, the Escambia County Charter Commission
has scheduled for November 6, 1979, a referendum elec
tion at which time the electors of Escambia County would
approve or disapprove the proposed charter.
All conditions precedent to the Court’s decision to ap
prove or disapprove Defendant Escambia County’s
remedial plan for electing county commissioners have now
been met. This Court’s judgment and memorandum deci
sion entered on July 10, 1978, directed Defendant Escam
bia County to submit within forty-five (45) days a
remedial plan for electing county commissioners. Defend
ant Escambia County submitted a plan to the Court on
August 24, 1978. However, on September 21, 1978,
Defendant Escambia County adopted an ordinance
substantially revising the plan theretofore submitted to the
Court. After considering the memorandum of counsel and
discussing the matter of the remedial plan at a hearing on
September 25, 1978, the Court entered a memorandum on
October 4, 1978, directing counsel for the parties to confer
with representatives of the Escambia County Charter Com
mission (which was created and authorized to draft a pro
posed charter for the government of Escambia County
which charter might provide for an alternative means of
electing county commissioners) to ascertain whether or not
83
the Charter Commission would be willing to submit its
plan for electing county commissioners for the Court’s
review. By letter dated October 10, 1978, counsel for
Defendant Escambia County advised the Court that the
Charter Commission had declined the Court’s invitation
and further advised the Court that at that time February
1979 was the best available estimate for the time for com
pletion of the draft of the proposed County Charter and
that a referendum election on the charter question was ex
pected to be scheduled for May 1979. No further con
sideration of the matter has been given until present. The
final draft of the proposed County Charter was completed
on June 18, 1979, and filed in the Office of the Clerk to
the Board of County Commissioners on June 29, 1979.
The Charter Commission has determined that November
6, 1979, is the date upon which a referendum election
should be held so that the voters may approve or disap
prove of the charter.
The plan for electing county commissioners in the pro
posed charter is substantially similar to the ordinance
adopted on September 21, 1978, by Defendant Escambia
County. Both plans provide for a seven member Board of
County Commissioners with five members to be elected
from single-member districts and two members to be
elected by the voters of the county at-large. However,
while the plan heretofore submitted to the Court by
Defendant Escambia County has fixed the boundaries of
contiguous and compact districts conforming as nearly as
possible with the one man-one vote requirement, such task
under the Charter Government would be undertaken by a
Reapportionment Commission.
However, Defendant Escambia County wishes to em
phasize that neither the proposal of a county charter nor
84
any of its substantive terms has any bearing on the vaiidity
of the legislative remedial plan of Defendant Escambia
County heretofore submitted to the Court. For the reasons
set forth in Defendants’ September 15, 1978, memoran
dum, the Court should approve and accept Defendant
Escambia County’s remedial plan. The proposal of a
county charter, regardless of its form or contents, is mere
ly a means of presenting to the electors of the County the
option of adopting an alternative form of county govern
ment. The charter proposal contains many provisions
which substantively affect and change county government.
Any such charter may or may not propose to revise the
procedure for electing county commissioners provided for
in the general law of Florida. The mere proposal of any
such charter does not limit the legislative authority of the
Board of County Commissioners theretofore exercised
and should not be construed by the Court to have any
force or effect of law whatsoever until the charter pro
posal is approved by vote of the electors of the County.
In any event, because the charter proposal for electing
county commissioners is so similar to the plan heretofore
adopted by Defendant Escambia County and submitted to
the Court, nothing would be gained by delaying considera
tion of Defendant Escambia County’s remedial plan until
after a referendum on the proposed charter.
The time is now ripe for the Court to approve or disap
prove the remedial plan heretofore adopted by ordinance
by Defendant Escambia County and filed with the Court.
Should there be an appeal from the Court’s decision, it
would be in the interest of judicial economy that the mat
ter be decided promptly so that any appeal therefrom
might be consolidated and considered with the pending
appeal on the merits of the Court’s July 10, 1978, decision
on Plaintiffs’ dilution claim. This would be in the best in
85
terests of Plaintiffs, Defendants and the public alike, all of
whom are anxious to determine finally the form of govern
ment for the future of Escambia County.
Respectfully submitted,
/ s / John W. Fleming
Richard I. Lott
John W. Fleming
28 West Government Street
Pensacola, Florida 32501
Telephone (904) 432-8374
Attorneys for Defendant Escambia Countv
Charles S. Rhyne
William S. Rhyne
Donald A. Carr
1000 Connecticut Avenue, N.W.
Suite 800
Washington, D.C. 20036
Attorneys for Defendant Escambia County
86
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has
been delivered by regular U.S. Mail to J.U. Blacksher, Es
quire and Larry T. Menefee, Esquire of Crawford,
Blacksher, Figures & Brown, 1407 Davis Avenue, Mobile,
Alabama 36603, Kent Spriggs, Esquire, 324 West College
Avenue, Tallahassee, Florida 32301, Jack Greenberg, Es
quire and Eric Schnapper, Esquire, Suite 2030, 10 Colum
bia Circle, New York, New York 10019, W. Edward Still,
Esquire, 601 Title Building, Birmingham, Alabama 35203,
Attorneys for Plaintiffs, and Don J. Caton, Esquire Sec-
cond Floor, City Hall, Pensacola, Florida, Attorney for
Defendant City of Pensacola, and Louis F. Ray, Jr., Es
quire, 226 South Palafox Street, Pensacola, Florida
32501, this 5th day of July, 1979.
John W. Fleming /s/John W. Fleming
87
THE PROPOSED CHARTER FOR THE HOME
RULE OF ESCAMBIA COUNTY, FLORIDA Approved
June 18, 1979.
ARTICLE I
CREATION OF THE GOVERNMENT
SEC. 101 PURPOSE
We, the people of Escambia County, in order to create a
more responsible and efficient local government, do or
dain and establish this Charter of Escambia County,
Florida as our Home Rule Charter and form of govern
ment, in accordance with the Constitution and laws of the
State of Florida.
SEC. 102 PROHIBITION OF CONSOLIDATION
Notwithstanding any provision herein, this Charter
shall not be deemed to authorize or permit the consolida
tion of the government of Escambia County and any
municipality therein, and the County shall not consolidate
its government with any muncipality therein, except pur
suant to an election held in accordance with the Constitu
tion of the State of Florida, and under a special law
specifically providing for such an election, which shall
provide that no consolidation shall be effected unless the
qualified County electors residing in areas within and
without any municipality concerned vote in the election
and a majority of such voters in both areas shall vote in
favor of consolidation.
SEC. 103 BODY CORPORATE AND POLITIC
Escambia County shall be a body corporate and politic
and as such shall have all rights and powers of local self-
government which are now, or hereinafter may be, provid-
ed by the Constitution and Laws of Florida and this
Charter.
88
SEC. 104 NAME AND BOUNDARIES
The corporate name of this County government shall be
“Escambia County,” hereinafter referred to as the “Coun
ty,” and shall be so designated in all actions and pro
ceedings concerning its rights, powers, properties, and
duties. The County seat shall be in Pensacola, Florida,
and the boundaries of the County shall be those presently
designated by Law.
ARTICLE II
POWERS AND DUTIES OF THE COUNTY
SEC. 201 GENERAL POWERS OF THE COUNTY
The County shall have all the general powers of local
self-government not inconsistent with general law, the
Constitution of Florida, and this Charter.
SEC. 202 SPECIAL POWERS
The County shall have all authority, powers, and duties
heretofore granted by legislative special acts, general laws
of local application, or ordinances, as may be in force at
the effective date of this Charter and which are not incon
sistent with this Charter.
SEC. 203 SECURITY OF THE CITIZEN’S RIGHTS
In order to secure to the citizens of the County protection
against abuses and encroachments, the County shall use its
powers to provide for all citizens:
(1) Just and Equitable Taxation: The County shall pre
vent the imposition of any tax within the County in excess
of the limitations imposed by the Constitution or Laws of
the State of Florida;
89
(2) Proper Use o f Public Property: The County shall
prevent the use of public property or taxing power for the
benefit of private individuals, partnerships, or corpora
tions in violation of the restrictions imposed by the Con
stitution or the Laws of the State of Florida;
(4) Full D isclosure o f Public Records and
Proceedings: All meetings and procedings established by
the County shall be open to the public as provided by the
Laws of Florida. All official County documents and
reports, except those which have been specifically
prepared for use in court proceedings, criminal law en
forcement, those which would violate a person’s right of
privacy, or which are working papers or otherwise merely
supportive of a final document or report, shall be open for
public inspection, and the agency or official having
custody and control of such public records shall, upon re
quest, supply certified copies of the records requested for
a reasonable fee as established by ordinance;
(a) Protection o f Human Rights; The County shall
establish such provisions, pursuant to state and federal
law, as may be required for protection of citizen rights
from discrimination based upon religion, political affilia
tion, race, color, age, sex, or national origin, and by pro
viding and insuring equal rights and opportunities for all
citizens of Escambia County.
SEC. 204 DIVISION OF POWERS
This Charter hereby established separation between the
legislative and administrative functions of this govern
ment. The establishment and adoption of policy shall be
legislative and the responsibility of the Board of County
Commissioners; the execution of that policy shall be ad
ministrative and the responsibility of the County Ad
ministrator. Elected County Charter Officers shall also
90
have such administrative functions and responsibilities as
may be provided by general law, not inconsistent with this
Charter, Judicial functions shall be as provided by general
law.
SEC. 205 CONSTRUCTION
The specified powers in this Charter shall not be con
strued as limiting, in any way, the general or specific
powers otherwise granted or authorized in this Charter. It
is the intent of this article to grant to the County full
power and authority to exercise all governmental powers
necesary for the effective operation and conduct of the af
fairs of the Charter Government. All descriptive nouns
and pronouns within this Charter shall be construed as
singular or plural, or masculine or feminine, as the context
may require the construction of positions, offices, and
the other provisions herein.
SEC. 206 EXERCISE OF POWERS
All powers of the County shall be exercised and ex
ecuted as provided by this Charter or, if the Charter makes
no provisions, as provided by general law.
SEC. 207 OATH
All elected or appointed officers, board members, or
persons serving in positions specified in this Charter shall,
as a qualifying condition precedent to serving, swear or af
firm the oath of public officers set out in the Constitution
of the State of Florida, said oath to be filed with the Clerk
of the Circuit Court.
91
ARTICLE III
LEGISLATIVE BRANCH - COUNTY COMMISSION
SEC. 301 COMPOSITION - COMMISSION
Except as otherwise provided in this Charter, all powers
of the County shall be vested in a Board of County Com
missioners of seven (7) elected members. The County shall
be divided into five (5) districts. One (1) Commission
member shall be elected from each District by the electors
of that District, and two (2) shall be elected by the electors
of the County at large; one (1) Commissioner-at-large
shall be designated as Commissioner-at-Large I, and the
other Commissioner-at-large shall be designated as
Commissioner-at-Large II.
SEC. 302 TERMS OF OFFICE
All County Commmissioners shall be elected for stag
gered terms of four (4) years, except as provided for in this
section. Upon adoption of this Charter, the five (5) district
seats created by this Charter shall be filled at the next
general election by electing a Commissioner from each of
the even numbered districts for four (4) years, a Commis
sioner from each of the odd numbered districts for two (2)
years, Commissioner-at Large I for a term of (2) years,
and Commissioner-at-Large II for a term of four (4) years.
Commissioners elected under this Charter shall be limited
to two (2) consecutive terms. The district boundaries and
numbers in effect on the date this Charter is adopted shall
be used in the aforementioned election.
SEC. 303 CONTINUANCE OF COMMISSIONERS
Commission members in office on the effective date
°f this Charter shall continue in office as a Commissioner
°f the district from which each qualified until the election
and qualification of their successors.
92
SEC. 304 QUALIFICATIONS
(1) All County Commissioners shall be qualified elec
tors of the County and shall have been a resident of the
County for at least one (1) year immediately preceding the
date on which they qualify to run for office; District Com
missioners shall have been a bona fide qualified voter
within the district from which they qualify to run for of
fice for at least six (6) months prior to the date on which
they qualify to run for office. Any Commissioner who
changes residence from the County, and any Commis
sioner elected with a district who changes residence from
the district from which the Commissioner was elected,
shall be deemed to have vacated his office.
(2) If a Commissioner ceases to be a qualified elector of
the County, or is convicted of a felony or a crime involv
ing misfeasance or malfeasance in office, he shall be
deemed to have vacated his office.
SEC. 305 QUORUM; VOTING
Four (4) Commission members shall constitute a
quorum to do business, but a lesser number may adjourn
from time to time. The affirmative vote of not less than
four (4) Commission members shall be necessary to pass
or adopt all matters under consideration by the Commis
sion, except where a greater number is required under this
Charter. A vote to adjourn may be adopted by a majority
of the members present. No member shall be excused from
voting, except on matters involving a conflict of interest.
Voting shall be by roll call and the “yeas” and “nays” shall
be recorded.
93
SEC. 306 MEETINGS OF COMMISSION
(1) The Commission shall meet regularly at least twice
in every month at such time and place as the Commission
may prescribe by rule, but at least one meeting each month
shall be held in the evening hours.
(2) Special meetings shall be called by the Clerk of the
Commission upon request of the Chairman of the Com
mission or two (2) members of the Commission. Written
notice thereof shall be given and shall state the subject or
subjects to be considered at the special meeting, and no
other subject shall be considered. Special meetings shall
require not less than twenty-four (24) hours actual notice
to each Commissioner, except in an emergency.
(3) Meetings of the Commission and of the committees
thereof shall be open to the public, and the rules of the
Commission shall insure that the citizens of the County
shall have a reasonable opportunity to appear and to be
heard.
(4) An agenda for each meeting shall be prepared and
made available at least twenty-four (24) hours prior to the
meeting, and non-agenda items shall be acted upon only in
an emergency situation which requires action prior to the
next regular meeting.
SEC. 307 POWERS REGARDING ELECTIONS,
MEMBERS, RULES AND BUSINESS
(1) The Commission may determine the election and
qualifications of its members in the event there is uncer
tainty relating thereto and, in such cases, shall have power
to subpoena witnesses and compel the production of all
pertinent books, records, and papers; but the decision of
the Commission in any case shall be subject to judicial
review.
94
(2) The Commission shall determine its own rules and
order of business and shall provide for keeping a written
record of proceedings.
SEC. 308 LEGISLATIVE PROCEDURES - EFFEC
TIVE DATES OF ORDINANCES AND REGULA
TIONS: EMERGENCY MEASURES
All ordinances passed by the Commission, in the man
ner provided by general law and this Charter, shall be filed
with the Department of State within ten (10) days after
enactment and shall take effect upon receipt of official
acknowledgment from that office; provided, however,
that any ordinance may prescribe a later effective date.
Emergency enactments shall follow the procedures as set
forth in general law.
SEC. 309 RIGHTS OF VARIOUS OFFICERS TO PAR
TICIPATE IN COMMISSION DISCUSSIONS
Elected County Charter officers, the County Ad
ministrator, and such other County employees as may be
designated by majority vote of the Commission, shall be
entitled to appear before the Commission in all matters
relating to their respective offices and departments.
SEC. 310 COMPENSATION - COMMISSION
(1) The salary of each member of the Board of County
Commissioners shall be twelve thousand ($12,000) per
year, and said salary shall constitute full compensation for
all services and in-county expenses. Total out-of-county
travel expenses, as provided by law, shall be limited to not
more than fifteen percent (15%) of the total amount
budgeted for Commissioners’ salaries; provided, however,
that all such out-of-county travel shall have been approved
by the Board of County Commissioners prior to incurring
the expense. The compensation of the Commissioners may
95
be changed from time to time by the affirmative vote of
five (5) members of the Board of County Commissioners,
by ordinance, to become effective on the first day of the
first fiscal year following the next general election after the
change in compensation has been adopted by the Commis
sion, provided, however, such change in compensation
must be approved by a majority of the voters at the said
general election. No ordinance changing the compensation
of the Board of County Commissioners shall be enacted
prior to January 1, 1982.
(2) Commission members elected prior to the effective
date of this Charter shall continue to receive the salary
established by general law until November 19, 1980.
SEC. 311 RECORDING, PRINTING, AND
CODIFICATION
The Commission shall provide for the authentication
and recording in full, in properly indexed books kept for
the purpose, of all minutes of Commission meeting, com
mittee meetings, all ordinances, and all resolutions
adopted by the Commission and the same shall, at all
times, be a public record. The Commission shall further
maintain a codification of all ordinances, and such
codification shall be published and made available for
distribution on a continuing basis at prices consistent with
general law.
SEC. 312 POWERS AND DUTIES OF THE COMMIS
SION
To the extent not inconsistent with general law, or this
Charter, the legislative responsibilities and powers of
Escambia County, Florida shall be assigned to, and vested
in, the Board of County Commissioners.
(1) The Board shall have the duty to:
96
(a) Prepare and enforce long-range comprehensive
plans for governance of the County;
(b) Require that the operating budget for the suc
ceeding fiscal year of every Elected County Charter Of
ficer, every Department and every Agency receiving Coun
ty funds be submitted annually or at such times as the
Board may direct.
(c) Insure that all daily operations of the various divi
sions of County government are carried out by the respec
tive departments or divisions on an equitable Countywide
basis, under the general supervision of the County Ad
ministrator and through the proper administrative chain
of command. Any and all requests, demands or com
plaints received by the Commissioners regarding County
services or operations shall be forwarded by the County
Administrator for appropriate action.
(d) Insure that a unified budget is adopted by the
County as provided by general law and insure that no ex
penditures or contracts for expenditures in any fiscal year
in excess of each fund’s budgets are made; those members
of the Board voting for and contracting for such amounts
in excess of the budget, or to pay an illegal charge against
the County, or to pay any claim against the County not
authorized by law or County ordinance shall be liable for
such sums and shall be subject to the sanctions, fines or
criminal penalties as provided by general law.
(e) Act as the “public employer” in connection with
any County employee, other than District School Board
employees, for collective bargaining purposes.
(f) Require that public funds are used only for
public purposes, and if any such funds should be, pur
suant to proper authority, provided to non-profit private
97
entities or organizations, then such entities or organiza
tions must have a clearly defined public purpose; some
measure of control must be granted to and retained by the
County, regular reports and accountings shall be provided
to the County, and the funds so received must be applied
for and inure to the benefit of the citizens of the County.
(g) Adopt, by ordinance, an appropriate non-
discriminatory bidding procedure for all purchases and
leases of goods and services by the County, waivable only
for specified purposes, with reasonable and thorough
guidelines for specifications and other conditions designed
to promote efficient and economical County services and
operations.
(h) Appoint a County Administrator.
(i) Support the Civil Service system as directed in
Article X of this Charter.
(2) The Board of County Commissioners shall have the
power to:
(a) Advise and consent to all appointments made
by the County Administrator for which Board confirma
tion is specified.
(b) Adopt or enact, in accordance with the pro
cedures provided by general law and this Charter, such or
dinances and resolutions as the Board of County Commis
sioners deems necessary or proper for the best interests of
the County and its inhabitants.
(c) Provide for the prosecution and defense of
legal causes in behalf of the County or State and retain
counsel and set their compensation.
(d) Provide and maintain County buildings for
public purposes.
98
(e) Provide for fire and police protection, disaster
preparation and relief, and civil defense.
(0 Provide for hospitals, nursing homes, am
bulance service, and health and welfare programs.
(g) Provide for parks, preserves, playgrounds,
libraries, museums, historical commissions, and other
recreation and cultural facilities and programs.
(h) Establish, coordinate, and enforce such
business regulations as necessary for the protection of the
public.
(i) Adopt and enforce building, housing, and
related technical codes and regulations.
(j) Establish and administer programs of housing,
slum clearance, community redevelopment, conservation,
flood and beach erosion control, air pollution control,
water pollution control, and navigation and drainage, and
cooperate with governmental agencies and private enter
prises in the development and operation of such programs.
(k) Provide for and regulate waste and sewage col
lection and disposal, water supply, and conservation pro
grams.
(l) Provide for and operate air, water, rail, and bus
terminals, port facilities, and public transportation
systems.
(m) Provide for and regulate arterial, toll, and
other roads, bridges, tunnels, and related facilities;
eliminate grade crossings; provide and regulate parking
facilities; and develop and enforce plans for the control of
traffic and parking.
(n) License and regulate taxis, jitneys, limousines
99
for hire, rental cars, and other passenger vehicles for hire
operating in the unincorporated areas of the County.
(o) Establish and enforce regulations for the sale
of alcoholic beverages in the unincorporated areas of the
County pursuant to general law.
(p) Enter into agreements with other governmental
agencies within or outside the boundaries of the County
for joint performance, or performance by one unit in
behalf of the other, of any of either agency’s authorized
functions.
(q) Levy and collect taxes, to the extent permitted
by general law, both for County purposes and for the pro
viding of municipal services within any municipal service
taxing unit; levy and collect special assessments; borrow
and expend money, but only to the extent authorized
under this Charter; issue bonds, revenue certificates, and
other obligations of indebtedness, which power shall be
exercised in such a manner, and subject to such limita
tions, as may be provided by the Constitution and the
Laws of Florida and this Charter. The County shall not
give, lend, use or apply its credit or taxing power to aid
any person, association, partnership, corporation, or
other private organization except as provided by general
law; nor shall ad valorem tax revenues or the full faith and
credit of the County be pledged or given to secure bonds,
certificates of indebtedness, or other evidences of in
debtedness, that mature more than twelve (12) months
after issuance, without approval by vote of the electors of
the County.
(r) Employ an independent accounting firm to
audit the funds, accounts, and financial records of the
County or any of its departments, agencies, and govern
100
mental subdivisions. Not less that five (5) copies of each
complete audit report, with accompanying documents,
shall be filed with the County Comptroller and maintained
there for public inspection.
(s) Adopt and amend, in accordance with Section
704 of this Charter, from time to time, the County’s Ad
ministrative Code after reasonable public notice and hear
ings.
(t) Appoint a County Attorney, who shall be a
qualified attorney admitted to practice law in Florida, and
such assistants as may be required, and fix the compensa
tion to be paid thereto. This compensation shall be limited
to salary and, in the discretion of the Board, such other
employee benefits as may be received by the other County
employees.
(u) the Board of County Commissioners shall have
the full power to create, alter or abolish Special Districts
and Municipal Service Units to the full extent granted by
the Constitution and the Laws of Florida.
(w) Perform any other acts not inconsistent with
the Constitution and the Laws of Florida or with this
Charter which are in the common interests of the people of
the County, and exercise all powers and privileges not
specifically prohibited by law.
SEC. 313 ELECTION, POWERS AND DUTIES OF
THE CHAIRMAN AND CHAIRMAN PRO-TEM OF
THE BOARD OF COUNTY COMMISSIONERS
(1) The Board of County Commissioners shall elect
from among its members by majority vote a Chairman
and a Chairman Pro-Tern. The Chairman and the Chair
man Pro-Tern shall be elected prior to January 1 of each
101
year and shall take office at the first meeting in January of
each year.
(2) The Chairman, in addition to the powers and duties
provided elsewhere in this Charter, shall have the specific
powers and duties to:
(a) Serve as the legislative leader and presiding of
ficer of the Board of County Commissioners.
(b) Present annually a “State of the County”
message, setting forth programs and recommendations to
the people of Escambia County;
(c) Nominate, subject to confirmation by a majori
ty vote of the Board of County Commissioners, members
of all appointed County boards, commissions, and ad
visory groups;
(d) Call regular and special meetings of the Board
of County Commissioners; and
(e) Serve as the official representative and
ceremonial dignitary for the government of Escambia
County.
(3) In the absence of the Chairman, the Chairman-Pro-
Tem shall perform such duties above as are required.
SEC. 314 APPORTIONMENT AND REAPPORTION
MENT
The County shall be divided into five (5) districts of con
tiguous territory as nearly equal in population as prac
ticable. In the first odd-numbered year after each decen
nial census, and at such other times as reapportionment
may be required, the County’s districts shall be reappor
tioned in accordance with general law in the following
manner:
102
(1) A Reapportionment Commission shall be establish
ed to prepare the reapportionment plan for the County.
The Commission shall consist of seven (7) electors, none
of whom may be elected public or party officers or
employees of the State or County. Prior to December 1 of
each year ending in 0, and at such other times as reappor
tionment may be required, the Chairman of the Board of
County Commissioners, the Chief Judge of the Circuit
Court of the judicial circuit for the County, and the Coun
ty Supervisor of Elections shall each nominate two (2) per
sons on the Commission, and these six (6) persons shall be
confirmed and appointed as members of the Reapportion
ment Commission by the Board of County Commissioners
at the Board’s next regularly scheduled meeting. Within
thirty (30) days after the Board has so acted, the six (6)
Commissioners so appointed shall select by affirmative
vote of at least four (4) Commissioners, a seventh (7th)
Commissioner who shall serve as Chairman of the Com
mission. Failure to select the seventh (7th) Commissioner
within the time prescribed shall constitute an impasse
which shall automatically discharge the Commission, and
a new Commission shall then be appointed in the same
manner as the original Commission. Any subsequent
vacancy on the Commission shall be filled by majority
vote of the remaining members of the Reapportionment
Commission.
(2) The Board of County Commissioners shall ap
propriate funds to enable the Commission to carry out its
duties, and shall provide clerical assistance as needed.
(3) The Reapportionment Commission shall prepare a
reapportionment plan that is equitable to all electors of the
County. In preparing the plan, the Commission shall not
consider the political affiliations of registered voters or
previous election results for the purpose of favoring any
103
political party, incumbent elected official, or any other
person or group, nor shall the Commission establish the
district boundaries for purpose of diluting the voting
strength of any language or racial minority group.
(4) The reapportionment plan as prepared by the Reap
portionment Commission shall be presented to the Board
of County Commissioners by November 1 of the first odd-
numbered year after each decennial census, and at such
other times as reapportionment may be required, and such
plan shall be adopted in the manner prescribed by general
law at least seven (7) months prior to the date of the first
county election scheduled to be held thereunder. The reap
portionment Commission shall act as advisor to the Board
of County Commissioners until such time as the plan has
been adopted at which time it shall be deemed discharged.
(5) If the method of electing County Commissioners set
forth in Section 301 of this Charter should be judicially
declared unlawful, the Board of County Commissioners,
after exhausting all reasonable means of upholding and
defending the Charter, shall adopt, by ordinance, a
remedial plan for electing the County Commissioners,
with the district boundaries to be fixed by the Reappor
tionment Commission in accordance with this section.
ARTICLE IV
ADMINISTRATIVE BRANCH - COUNTY
MANAGEMENT
SEC. 401 COUNTY ADMINISTRATOR
There shall be a County Administrator for Escambia
County.
104
SEC. 401.1 APPOINTM ENT, REMOVAL AND
SALARY
The Board of County Commissioners shall appoint a
County Administrator who shall be the administrative
head of the County government and shall be responsible
for the efficient administration of all County departments.
He may be the head of a department or departments as the
Board of County Commissioners may, by resolution, pro
vide. Appointment to the position of County Ad
ministrator shall be made only after applicants for the
position have been solicited on a national basis with ap
propriate advertising over a reasonable period of time. He
shall be chosen on the basis of his experience, education,
executive ability and administrative qualifications.He may
or may not be a resident of the County or the State of
Florida at the time of his appointment; provided,
however, he shall within sixty (60) days after appointment
establish residence within Escambia County. The County
Administrator shall be appointed by the affirmative vote
of not less than five (5) members of the Board of County
Commissioners. He may be removed upon reasonable
notice and after a hearing, if such is requested, at any time
by an affirmative vote of four (4) or more members of the
Board of County Commissioners. He shall receive such
salary as may be fixed by the Board of County Commis
sioners. His compensation shall be limited to the salary
and, at the discretion of the Board of County Commis
sioners, such other employee benefits as may be received
by other County employees. In the event of his removal
without cause he may be granted not more than three (3)
months’ termination pay.
105
SEC. 401.2 POWERS AND DUTIES OF THE COUNTY
ADMINISTRATOR
(1) The County Administrator shall be the Chief Ad
ministrative Officer of the County, and he shall be respon
sible to the Board of County Commissioners as a whole
for the proper administration of the affairs of the County,
except as otherwise provided by the Constitution and the
Laws of Florida, or by this Charter. He shall also serve as
the County’s budget officer.
(2) It is the intent of this Charter to grant to the County
Administrator only those powers and duties which are ad
ministrative or ministerial in nature, and not to delegate
any governmental power vested in the Board of County
Commissioners as the governing body of Escambia Coun
ty, Florida. To that end, the specifically enumerated
powers below are to be construed as administrative in
nature, and in any exercise of the governmental power, the
Administrator shall only be performing the duty of advis
ing the Board of County Commissioners in its role as the
policy-setting governing body of the County.
(3) The powers and duties of the County Administrator
shall include the following:
(a) Administer and carry out the directives and
policies of the Board of County Commissioners and en
force all orders, resolutions, ordinances, and regulations
of the Board, the County Charter, and all applicable law,
to assure that they are faithfully executed.
(b) Report to the Board of County Commissioners
on action taken pursuant to any directive or policy of the
board.
(c) Provide the Board of County Commissioners,
106
or individual members thereof, upon request, with data or
information concerning County government.
(d) Prepare and submit a tentative budget for the
ensuing fiscal year to the Board of County Commissioners
on or before July 15th of each year.
(e) Establish the schedules and procedures to be
followed by all County departments, offices, and agencies
in connection with the budget, and supervise and ad
minister all phases of the budgetary process except pre
audit and post-audit requirements.
(f) Prepare and submit to the Board of County
Commissioners after the end of each fiscal year a complete
report on the finances and administrative activities of the
County for the proceeding year and submit recommenda
tions in connection therewith.
(g) Coordinate the care and custody of all County
property, institutions, and agencies.
(h) Organize the work of County departments,
subject to the County’s Administrative Code, and review
the departments, administration, and operation of the
County and make recommendations pertaining thereto.
(i) Appoint, subject to the approval of the Board
of County Commissioners, all department heads, who
shall serve at the pleasure of the County Administrator,
and employ, suspend, or discharge such personnel as may
be necessary to administer and perform the County’s func
tions and services, pursuant to appropriation, the Ad
ministrative Code, and any applicable civil service pro
cedures. Except as otherwise provided in this Charter,
department heads shall not be subject to civil service pro
cedures, and may be suspended or discharged without
Commission approval.
107
(j) Develop long-range fiscal plans for the County
in coordination with the Elected County Charter Officers,
and present such plans annually, updated as necessary, to
the Commission for its review and adoption,
(k) Negotiate leases, contracts, and other
agreements, including consultant services, for the County,
subject to approval by the Board, and make recommenda
tions concerning the nature and location of County im
provements.
(l) See that all terms and conditions in all leases,
contracts, and agreements are performed and notify the
Board of any noted violation thereof.
(m) Order any department, division, or agency
under his jurisdiction as specified in the Administrative
Code to undertake any task for any other department,
division or agency on a temporary basis if he deems it
necessary for the proper and efficient administration of
the County government.
(n) Designate a person to act during his absence.
(o) Attend all meetings of the Board with the
authority to participate in the discussion of any matter. In
coordination with the appropriate Elected County Charter
Officers and department heads, review, analyze, and
forecast trends of the County services, finances, and pro
grams, and keep the Board informed of the results
thereof.
(p) Perform such other duties as may be required
of him by the Board of County Commissioners.
SEC. 401.3 VACANCY
The Office of the County Administrator shall be
108
declared vacant in the event of the incumbent’s termina
tion, resignation, death, moving his residence from the
county, or if he is, by unexplained absence, illness or other
disability, unable to continue in office or perform the
duties of his office. A vacancy in the office shall be filled,
within six (6) months from the time the vacancy occurs, in
the same manner as the original appointment. The Board
of County Commissioners may appoint an Acting Ad
ministrator in the case of vacancy until such time as a suc
cessor has been appointed and qualified or the Ad
ministrator returns.
SEC. 402 NONINTERFERENCE BY COUNTY COM
MISSION
The Commission and its members shall deal with that
portion of the County government for which the Ad
ministrator is responsible solely through the Ad
ministrator, and neither the Commission nor any member
thereof shall interfere with the performance of any County
employee under the direct or indirect supervison of the
County Administrator.
ARTICLE V
JUDICIAL SYSTEM
SEC. 501 COURTS
The judicial branch of the Charter Government shall be
provided by the Constitution and Laws of Florida and this
Charter.
109
ARTICLE VI
ELECTED COUNTY CHARTER OFFICERS
SEC. 601 ELECTED COUNTY CHARTER OFFICERS
There shall be six Elected County Charter Officers: the
Clerk of the Circuit Court; the Comptroller; the Property
Appraiser; the Sheriff; the Supervisor of Elections; and
the Tax Collector. Except as provided herein, all County
Constitutional Officers shall become Charter officers as of
the effective date of this Charter, and the previously ex
isting offices of like names shall thereupon be discon
tinued. Each of these officers shall have the powers, duties
and responsibilities as are herinafter specified, and each
shall be a Charter officer and not a Constitutional officer.
The budget and financial funding of each officer shall be
subject to and in accordance with the unified budget as
adopted by the Board of County Commissioners under
this Charter.
SEC. 601.1 CLERK OF THE CIRCUIT COURT
The office of the Clerk of the Circuit Court, as provided
by Chapter 28, Florida Statutes (1977) and general law
shall continue as a County Charter Officer and, to the ex
tent not inconsistent with this Charter, all laws applicable
thereto shall continue in full force and effect. His duties
shall include, without limitation, those specified for the
Clerk of the Circuit and County Courts in Chapter 73-455,
Laws of Florida. The Clerk of the Circuit Court shall
qualify, be nominated, elected, and serve in the manner
provided for the comparable office under the Laws of the
State of Florida.
SEC. 601.2 COMPTROLLER
The office of Comptroller, as provided by Chapter 28,
110
Florida Statutes (1977) and general law for those counties
having a Comptroller, shall continue as a County Charter
Officer and, to the extent not inconsistent with this
Charter, all laws applicable thereto shall continue in full
force and effect. His duties shall include, without limita
tion, those specified for the Comptroller in Chapter
73-455, Laws of Florida. The Comptroller shall qualify,
be nominated, elected, and serve in the manner provided
for the comparable office under the Laws of the State of
Florida.
SEC. 601.3 PROPERTY APPRAISER
The office of Property Appraiser as provided by general
law shall continue as a County Charter Officer and, to the
extent not inconsistent with this Charter, all laws ap
plicable thereto shall continue in full force and effect. The
Property Appraiser shall qualify, be nominated, elected,
and serve in the manner provided for the comparable of
fice under the Laws of the State of Florida.
SEC. 601.4 SHERIFF
The office of Sheriff as provided by Chapter 30, Florida
Statute (1977) and general law, shall continue as a County
Charter Officer and, to the extent not inconsistent with
this Charter, all laws applicable thereto shall continue in
full force and effect. The Sheriff shall qualify, be
nominated, elected, and serve in the manner provided for
the comparable office under the Laws of the State of
Florida.
SEC. 601.5 SUPERVISOR OF ELECTIONS
The office of Supervisor of Elections as provided by
general law shall continue as a County Charter Officer
and, to the extent not inconsistent with this Charter, all
laws applicable thereto shall continue in full force and ef-
I l l
feet. The Supervisor of Elections shall qualify, be
nominated, elected, and serve in the manner provided for
the comparable office under the Laws of the State of
Florida.
SEC. 601.6 TAX COLLECTOR
The office of Tax Collector as provided by general law
shall continue as County Charter Officer, and to the ex
tent not inconsistent with this Charter, all laws applicable
thereto shall continue in full force and effect. The Tax
Collector shall qualify, be nominated, elected, and serve in
the manner provided for the comparable office under the
Laws of the State of Florida.
SEC. 602 SALARIES
Salaries of the six above Elected County Charter Of
ficers shall be as provided by general law for the com
parable office.
ARTICLE VII
ADMINISTRATIVE DEPARTMENTS OF THE
GOVERNMENT
SEC. 701 DEPARTMENTS
There shall be not more than five (5) County depart
ments under the Charter Government.
SEC. 702 DEPARTMENT HEADS
Each department head shall be the principal officer of
the department and responsible for all its operations, and
shall be appointed by the County Administrator subject to
confirmation by the Commission and shall serve at the
pleasure of the County Administrator. The Board of
County Commissioners shall establish a salary range for
112
department heads; the exact salary of any department
head shall be established within that range by the County
Administrator.
SEC. 703 CHANGES IN DEPARTMENTS
Changes in the number of departments established in
this Article shall be made only by amendment to this
Charter. Upon the recommendation of the County Ad
ministrator, the Board of County Commissioners may by
ordinance make changes within departmental organiza
tions including combinations, deletions and transfer of
responsibilities among departments.
SEC. 704 ADMINISTRATIVE CODE
(1) The rules, regulations, and administrative organiza
tion for all departments, divisions, agencies, and offices of
Elected County Charter Officers of the county govern
ment shall be set forth in an Administrative Code. The
said Code shall be published and made available to the
public at cost, and shall be revised as necessary to reflect
changes and remain current. Each department head, agen
cy head, or Elected Charter Officer shall be responsible
for his respective portion of the Administrative Code.
Adoption and incorporation into the Administrative Code
shall be required before rules and regulations shall become
effective.
(2) The County Administrator shall be responsible for
the preparation and submission to the Board of County
Commissioners for adoption of all the Administrative
Code material from all departments, divisions, boards,
and agencies of the county within his jurisdiction. Each
Elected County Charter Officer and each head of a county
agency or board (other than agencies or boards within the
County Administrator’s jurisdiction) shall be responsible
113
for the preparation of his respective Administrative Code
material, and the same shall be submitted to the Board of
County Commissioners for incorporation into the Ad
ministrative Code. Amendments, deletions, or additions
to the said Code may be made from time to time after such
notice and public hearing as may be required under
general law, as follows:
(a) By the Board of County Commissioners as to
material submitted by the County Administrator; and
(b) By the respective Elected County Charter Of
ficers or heads of agencies and boards as to material not
required to be submitted through the County Ad
ministrator.
(3) The Board of County Commissioners, Elected
County Charter Officers, and any applicable agency or
board heads are empowered to, and shall, develop, adopt,
and promulgate the procedures necessary to accomplish
the foregoing in a manner that will afford the public a
reasonable opportunity to advocate or oppose rules,
regulations, or administrative organization.
(4) The initial Administrative Code under this Charter
shall be promulgated within twelve (12) months after the
effective date of the Charter.
(5) It shall be the responsibility of the County Ad
ministrator to insure that the Administrative Code is com
piled, adopted, published, and revised in accordance with
this section.
114
ARTICLE VII
ADMINISTRATIVE, REGULATORY AND AD
VISORY BOARDS
SEC. 801 BOARDS
The Board of County Commissioners may create by or
dinance, specifying the duties and membership thereof,
such administrative, regulatory and advisory boards as it
finds necessary and may also, by ordinance, abolish or
alter such boards so created. Members of these boards
shall serve without compensation, except for expenses as
provided by general law and as approved by the Board of
County Commissioners.
SEC. 802 SANTA ROSA ISLAND AUTHORITY
(1) The Santa Rosa Island Authority and its functions,
responsibilities, duties, and obligations as provided for in
Chapter 24-500, Laws of Florida, (1947) as amended shall
continue to exist, except as provided herein for the ap
pointment of members.
(2) The Santa Rosa Island Authority shall consist of
five (5) members appointed by the County Commission.
All members shall be electors of the County and at least
one (1) member shall be a leaseholder of Santa Rosa Island
property. Members shall be appointed for five (5) year
terms, so staggered as to provide for one term to expire
each year. Terms of initial appointees shall be determined
by lot.
SEC. 803 BOARD OF TRUSTEES OF CENTURY
MEMORIAL HOSPITAL
The Board of Trustees of Century Memorial Hospital
and its functions, responsibilities, duties, and obligations
115
as provided in Chapter 77-553 Laws of Florida shall con
tinue to exist.
ARTICLE IX
ELECTIONS
SEC. 901 ELECTION PROCEDURES
Except as otherwise provided in this Charter, elections
of County Commission members and Elected County
Charter Officers shall be in accordance with general law.
SEC. 902 COMMENCEMENT OF TERMS
All officers elected under this Charter shall begin their
terms of office on the Tuesday two (2) weeks following the
day of the General election.
SEC. 903 NON-PARTISAN ELECTIONS
(This section shall be included only if the voters approve
Non-Partisan elections.)
(1) Elections for all Charter offices shall be on a non
partisan basis. No candidates shall be required to pay any
political party assessment or be required to state the
political party of which they are a member. All candidates’
names shall be placed on the ballot without reference to
political party affiliation.
(2) In the event that more than two (2) candidates have
qualified for any single seat under Charter government, a
primary election shall be held at the time of the first state
primary election prior to the general election and pro
viding that no candidate receives a majority of the votes
cast, the two (2) candidates receiving the highest vote shall
be placed on the ballot for election at the time of the
general election.
116
(3) Each candidate for a Charter office shall be re
quired to pay a filing fee in the amount of three (3) percent
of the annual salary of the office. Such tiling fees shall ac
crue to the County.
(4) Candidates qualifying by petition in accordance
with general law shall be exempt from paragraph (3)
above.
ARTICLE X
PERSONNEL ADMINISTRATION
SEC. 1001 PURPOSE
The purpose of this article is to provide a modern and
comprehensive system of personnel administration based
on merit principles and methods which promote efficiency
and economy in the personnel services rendered, and
fairness and equity to the employees and taxpayers of the
county. The system shall provide means to recruit, select,
develop and maintain an effective and responsive work
force.
SEC. 1002 MERIT SYSTEM
The merit system for the employees of the County and
the District School Board shall be continued.
SEC. 1003 NON DISCRIMINATION POLICY
No career Civil Service employee or applicant for
employment shall be favored or discriminated against in
any aspect of personnel administration because of
religious or political opinions or affiliations, race, na
tional origin, sex, age or physical disability except where
sex, age or physical ability constitute a bona fide occupa
tional qualification. Any applicant or employee who has
reason to believe that he or she has been discriminated
117
against in any personnel action may appeal to the Civil
Service and Personnel Board.
SEC. 1004 UNCLASSIFIED AND CLASSIFIED SER
VICE
The personnel system of the Charter Government shall
provide for the employment of qualified personnel and
shall include all necessary provisions to insure protection
of both employee and employer. This system shall have
two basic divisions, the classified or career service and the
unclassified or exempt service.
SEC. 1004.1 CLASSIFIED OR CAREER SERVICE
The classified or career service shall include all
employees of Escambia County and the District School
Board who are not in exempt positions as provided in this
Charter and who are covered by the merit system.
SEC. 1004.2 UNCLASSIFIED OR EXEMPT POSI
TIONS
The Civil Service and Personnel Board shall maintain a
list of all exempt positions along with the documentation
of the applicable positions for exemption. Exempt positions
shall include:
(1) All elected officials, persons appointed by the
Governor, the County Administrator and department
heads appointed by the County Administrator.
(2) Members of boards, advisory councils and commit
tees that serve without pay.
(3) Instructional and administrative personnel of the
District School Board as defined in Section 228.041 (9)
and Section 228.041 (10), Florida Statutes as they now
read or may be hereafter amended.
118
(4) Other officials and employees of the Board of
County Commissioners and the District School Board
whose positions are exempt at the time of Charter adop
tion may be continued in an exempt status as provided
below.
(a) Two (2) years after Charter adoption and every
two years thereafter, existing exempt positions shall be
reviewed and may be approved by the Civil Service and
Personnel Board. At this time any requests for additional
exempt positions shall also be considered. All requests
shall be supported by adequate documentation describing
the duties, responsibilities and qualifications of the posi
tion and must be in accord with budgetary limitations.
(5) The Civil Service and Personnel Board shall
establish guidelines and criteria for the establishment of
exempt positions, except those named in sections (1), (2),
and (3) above.
(6) Public notice shall be given in a daily newspaper of
general circulation in Escambia County, between seven (7)
and fifteen (15) days prior to any meeting of the Civil Ser
vice and Personnel Board at which additional exempt posi
tions will be considered.
SEC. 1005 STATUS OF EMPLOYEES
(1) Career Service
The status of all classified employees shall be fully
protected upon the adoption of this Charter according to
the provisions of S. 125.88, Florida Statutes. All officers
and employees in the classified service of the County shall
be transferred to the appropriate department, division or
agency under the Charter. Such transfers shall be without
examination or reduction of existing compensation, pen
sion, or retirement rights.
119
(2) Exempt Employees
Employees of the County and District School
Board who are unclassified and hold their positions by ap
pointment shall be continued under Charter if they are ap
pointed under proper authority subject to the provisions
of this Charter. An exempt or unclassified employee shall
not be placed in a classified position until said employee
has made application for, fulfilled the requirements of,
and been examined for the position sought, and has been
placed on the roster by the same procedure followed by
other applicants. The Board shall, by rule, grant point
preference to such former employees as established for
former classified employees.
SEC. 1006 CIVIL SERVICE AND PERSONNEL
BOARD
(1) The Civil Service and Personnel Board shall be com
posed of seven (7) members. One member shall be elected
by each of the following groups prior to February 15th:
February 15th:
(a) Board of County Commissioners
(b) District School Board
(c) Classified employees of the County
(d) Classified employees of the District School
Board
(e) Elected Charter Officers; (The Sheriff, the
Clerk of the Circuit Court, the Comptroller,
the Property Appraiser, the Supervisor of
Elections, and the Tax Collector).
Two (2) members shall be public members elected by the
first five (5) members. The affirmative vote of four (4) of
120
the first five (5) members shall be required to elect the two
(2) public members.
(2) In the event the five (5) members cannot agree upon
the sixth (6th) and seventh (7th) members within thirty (30)
days after taking office, the Chief Judge of the Circuit
Court shall designate such members.
(3) The Civil Service and Personnel Board shall by
February 1st establish appropriate procedures for the
election of Board members by the classified employees of
both the County and the District School Board.
SEC. 1006.1 TRANSITION
The members of the Civil Service and Personnel Board
prior to the effective date of this Charter shall remain in
office until March 1st following the effective date of this
Charter, at which time the Board members elected under
the provisions of this Charter shall take office in the man
ner prescribed as follows. Initially, the Board of County
Commissioners shall elect one (1) member for a two (2)
year term, the District School Board shall elect one (1)
member for a two (2) year term, and the Elected County
Charter Officers, as a group, shall elect one (1) member
for a two (2) year term. The Classified employees of the
County shall elect one (1) member for a two (2) year term,
and the Elected County Charter Officers, as a group shall
elect one (1) member for a four (4) year term and the
classified employees of the District School Board shall
elect one (1) member for a four (4) year term. The sixth
(6th) (public) member and the seventh (7th) (public)
member shall be elected for four (4) year terms. Following
the initial terms, the terms of all members shall be for four
(4) years.
121
SEC. 1006.2 TERMS OF OFFICE
Members of the Civil Service and Personnel Board shall
serve staggered four (4) year terms. A member of the Civil
Service and Personnel Board shall not be removed from
office except by the Governor of the State, as provided for
in the general law and the Constitution of the State of
Florida. Any vacancy on the Board shall be filled within
thirty (30) days in the manner by which the vacated
member was elected.
SEC. 1006.3 QUALIFICATIONS
Members of the Civil Service and Personnel Board shall
be qualified electors of the County and shall be persons in
sympathy with the application of merit principles to public
employment. No member of the Civil Service and Person
nel Board shall be employed in any capacity by any agency
covered by the Escambia County personnel system; nor
shall any member hold or be a candidate for any paid
public office or employment or be a member of any local,
state or national committee of a political party or an of
ficer in any partisan political club or organization. The
Standards established in Section 1202.1 of this Charter
shall apply to members of the Civil Service and Personnel
Board.
SEC. 1006.4 OFFICERS AND MEETINGS
The Civil Service and Personnel Board shall elect one of
its members as a Chairman and another as Vice Chairman;
and shall meet at least once a month at such time and place
as shall be specified by call of the Chairman. Advance
notice of all meetings shall be provided to each member,
and to the news media, either orally or in writing. Except
in unusual circumstances, the regular monthly meetings
shall be at an established time and place. All meetings shall
122
be open to the public. Four (4) members of the Civil Ser
vice and Personnel Board shall constitute a quorum for
the transaction of business unless the action requires the
affirmative vote of five (5) members as provided by this
article.
SEC. 1006.5 REMUNERATION
The members of the Civil Service and Personnel Board
shall not receive salary but shall be reimbursed for ex
penses in a manner to be determined by resolution of the
Board of County Commissioners.
SEC. 1006.6 POWERS AND DUTIES OF THE BOARD
The powers and duties of the Civil Service and Person
nel Board shall be as follows:
(1) To establish Rules and Regulations for the ad
ministration of this article. The Rules and Regulations
shall be published with the Administrative Code.
(2) To make investigations concerning the enforcement
of this Article.
(a) To conduct hearings, administer oaths, take
depositions, issue subpoenas, compel attendance of
witnesses and the production of books, accounts, papers,
records, documents and testimony.
(b) In case of disobedience by any person to comp
ly with an order or subpoena issued by the Board, or the
refusal of a witness to testify in lawful interrogation, the
Board shall make application to a judge of the Circuit
Court of Escambia County, Florida to compel obedience.
(3) To punish by suspension or dismissal any classified
employee found, after due notice and hearing, guilty of
any violation of this Article or the Rules and Regulations
of the Board.
123
(a) Appeals from Board action shall be by cer
tiorari to the Circuit Court of Escambia County, Florida.
(4) To review, at its discretion, any investigation by an
employer concerning misconduct by an employee and to
determine whether or not a violation has occurred. The
Board shall have the power to approve, modify or set aside
any disciplinary action taken or recommended by an
employer against a classified employee.
(5) To hear and determine appeals or complaints
respecting the administration of this Article.
(6) To ascertain, develop and record the qualifications,
duties and responsibilities pertaining to all classified posi
tions of the merit system.
(a) Each appointing authority shall ascertain,
record the qualifications, duties, responsibilities and
salary range of all unclassified positions and shall file
same with the Civil Service and Personnel Board.
(7) To prepare and conduct competitive tests to deter
mine qualifications of persons who seek employment in
any classified position and to establish employment lists
for the various classes of positions.
(8) To establish a system of performance rating to be
used in determining promotions, the order of layoffs and
reemployment, and for other purposes.
(9) To keep necessary records for the proper ad
ministration of the personnel system and make a status
report concerning all employees of the County, both
classified and exempt, to the people and officials of
Escambia County on July 1 of each year.
(10) To employ necessary staff to carry out this Article.
124
(11) to retain legal counsel.
(12) By the affirmative vote of five (5) members of the
Board, to amend, repeal, or add to the provisions of
House Bill 947 as enacted by the 1979 Legislature (which
special act and all amendments thereto are expressly incor
porated herein to the extent not inconsistent with this
Charter), by rule or regulation adopted and promulgated
as a part of the Administrative Code to such extent as may
be consistent with the Article.
(13) In addition to the above, the Civil Service and Per
sonnel Board shall have all powers and duties as provided
in general law and existing local law, except where such
laws are inconsistent with this Charter.
SEC. 1006.7 PAY PLAN FOR CLASSIFIED
EMPLOYEES
(1) The Civil Service and Personnel Board shall com
plete a comprehensive classification and wage survey every
three (3) years and shall make annual studies to determine
the adequacy and fairness of the pay plan.
(2) Prior to June 1st of each year the Civil Service and
Personnel Board shall recommend the pay scales, wages
and salaries, for all classified employees to the Board of
County Commissioners and to the District School Board.
As the appropriating authorities, the Board of County
Commissioners shall make the final determination in ap
proving annual wages for all employees of the County,
and the District School Board shall make the final deter
mination in approving annual wages for classified
employees of the District School Board.
(3) The Civil Service and Personnel Board shall
prescribe in its Rules and Regulations standard policies
125
governing the administration of the pay plan and other
elements of compensation.
(4) All appointing authorities shall furnish a copy of
each payroll, both classified and unclassified, to the Civil
Service and Personnel Board immediately following the
pay period. The Board shall give written notice to the ap
propriate employer of any item which appears to be in
conflict with this Article or the Rules and Regulations of
the Board. Any payment made on any item so noticed
after receipt of said notice shall be considered improper
expenditure of public funds.
(5) The existing pay plan at the time of Charter adop
tion shall remain in effect until amended as herein provid
ed.
SEC. 1007 PERSONNEL DIRECTOR
SEC. 1007.1 QUALIFICATIONS
The personnel director shall be a member of the
classified service chosen by the Civil Service and Personnel
Board on the basis of professional education, training and
experience in personnel administration.
SEC. 1007.2 DUTIES
The personnel director shall direct the staff of the Board
and be responsible to the Board for the administration of
the personnel system in accordance with this Charter and
as provided in the Rules and Regulations of the Board.
SEC. 1008 FINAL AUTHORITY
The determination of the Civil Service and Personnel
Board shall be final as to whether offices and positions are
under classified service, subject only to judicial review.
126
SEC. 1009 PERSONNEL REVIEW
Classified employees covered by the merit system shall
be entitled to request a review by the Board of any action
taken pertaining to his or her employment or employment
rights established under the Rules and Regulations of the
Board. The right of appeal from any disciplinary action,
transfer, demotion or discharge applies exclusively to
members of the classified service.
SEC. 1010 SUPPORT OF THE PERSONNEL SYSTEM
(1) The Board of County Commissioners shall provide
adequate and suitable office space and sufficient funds for
the operation of an efficient civil service and personnel
system.
(2) Each agency, appointing authority of the County
government, and any other appointing authorities receiv
ing services from the County Civil Service and Personnel
System, shall reimburse the County on a pro-rata basis for
the operating costs of the personnel system.
SEC. 1011 UNLAWFUL ACTS PROHIBITED
(1) No persons shall make any false statement, cer
tificate, mark, rating or report with regard to any test, cer
tification, or appointment made under any provision of
this law or in any manner commit or attempt to commit
any fraud preventing the impartial execution of this law
and policies.
(2) No person shall, directly or indirectly, give, render,
pay, offer, solicit, or accept any money, service or other
vaulable consideration for any appointment, proposed ap
pointment, promotion or proposed promotion to, or any
advantage in, a position in the career service.
127
ARTICLE XI
FINANCE
SEC. 1101 FISCAL YEAR
The fiscal year of the County shall begin on October 1
of each year and shall end on September 30 of the follow
ing year.
SEC. 1102 GENERAL
The County and all County offices, departments, and
agencies shall operate under a unified and uniform budget
system. The County’s annual budget and all budgetary
processes shall be in accordance with general law except as
otherwise provided in this Charter. All fees collected by
officers and employees of the County shall be deposited
promptly in the County Treasury. All officers and
employers of the County shall be compensated by salaries,
and no officer or employee of the County shall be com
pensated by fees, directly or indirectly, arising from or oc-
cassioned in any way as a result official duties.
SEC. 1103 BUDGETS
There shall be prepared, approved, adopted and ex
ecuted for each fiscal year and for such additional periods
as the Board of County Commissioners may deem ad
visable, a budget for such funds as may be required by law
or by sound financial practices and generally accepted ac
counting principles. The budget shall be controlling for
purposes of levying taxes and expending funds for all
County purposes.
SEC. 1103.1 PREPARATION OF THE BUDGET
(1) It shall be the responsibility of the County Ad
ministrator to prepare and submit a tentative budget for
128
the ensuing fiscal year to the Board of County Commis
sioners. All information and data necessary for the prepa
ration of the tentative budget shall be provided by the ap
propriate County officers or employees on or before June
1 of each year, including a tentative budget for each of
fice, department, agency, or fund for which the respective
officer or employee is responsible.
(2) The County Comptroller shall have the duty to
study the proposed budget and appear before the Board of
County Commissioners to offer any comments regarding
the financial and/or legal soundness of the document.
SEC. 1103.2 REVIEW AND ADOPTION
(1) The Board of County Commissioners shall receive
and examine the tentative budget submitted to them and
shall examine the tentative budget for each office and each
fund. Revisions in the tentative budget may be made in the
Board’s discretion, but priority shall be given to those
areas of budgeted expenditures necessary for the perfor
mance of governmental duties and obligations imposed by
general law or by this Charter.
(2) Upon the completion of any revisions made by the
Board of County Commissioners, the Board shall prepare
a statement summarizing all of the tentative budgets in the
manner provided by general law. They shall cause this
summary statement to be advertised one time in a
newspaper of general circulation published in the County
on or before September 1 of each year, and the advertise
ment shall state that the Board of County Commissioners
shall meet on a day fixed in the advertisement, not earlier
than one week and not later than two weeks from the date
of the advertising, for the purpose of hearing requests and
complaints from the public and from any affected County
officer regarding the tentative budget of the County.
129
(3) The Board shall meet upon the date fixed in the
advertisement and from day to day thereafter if necessary
for the purpose of holding a public hearing and making
whatever revisions in the budget it may deem necessary,
and shall thereupon adopt the revised budget and file the
same with the County Comptroller as a public record on
or before October 1 of each year.
(4) Each Elected County Charter Officer shall have the
right of budgetary appeal both as described elsewhere in
this Article and by certiorari to the Circuit Court, but no
such officer shall have the right to appeal to the Florida
Department of Administration or to the Florida Depart
ment of Revenue, or any other state department, pursuant
to Sections 30.49 and 195.087, Florida Statutes (1977), or
any other provision of general law applicable to non-
Charter officers. Petitions for certiorari to the Circuit
Court must be filed within ten (10) days from the date of
the final adoption of the budget by the Board of County
Commissioners.
SEC. 1103.3 IMPLEMENTATION AND AMEND
MENT OF THE BUDGET
(1) The budget as finally adopted by the Board of Coun
ty Commissioners shall regulate the expenditures of the
County, and the itemized estimates of expenditures shall
have the effect of fixed appropriations and shall not be
amended or altered or exceeded except as provided by
general law or under this Charter.
(2) Upon written approval of the County Administrator
appropriations for expenditures in any department may be
decreased and other appropriations in the same depart
ment correspondingly increased, provided that the total
appropriation of the department shall not be changed.
130
(3) The Board of County Commissioners may, from
time to time within a fiscal year, amend the budget for that
year as follows:
(a) Appropriations from the reserve for contingen
cies may be made to increase the appropriation for any
particular expense in the same fund or department, or to
create an appropriation in the fund or department, for any
lawful purpose, but no expenditures shall be charged
directly to the reserve for contingencies.
(b) A receipt of a nature from a source not an
ticipated in the budget and received for a particular pur
pose, including but not limited to federal or state grants,
other grants, donations, gifts, or reimbursements for
damages, may by resolution of the Board spread on its
minutes, with at least seven (7) days notice, be ap
propriated and expended for that purpose, in addition to
the appropriations and expenditures provided for in the
budget. Such receipts and appropriations shall be added to
the budget of the proper fund or department.
(c) Increased receipts for enterprise or proprietary
funds received for a particular purpose may, by resolution
of the Board spread on its minutes, be appropriated and
expended for that purpose, in addition to the appropria
tions and expenditures provided for in the budget.
(d) A receipt of a nature from a source not anticipated
in the budget, and not received for a particular purpose,
including but not limited to additional tax revenues,
federal revenue funds, or state revenue sharing funds,
may, by resolution of the Board spread on its minutes,
after not less than seven (7) days notice, and after all
receipts anticipated in the budget have been actually
received, be appropriated and expended for such purposes
and in such manner as may be lawful.
131
(e) In the event that the revenues actually received are
less than anticipated and appropriated in the budget, the
Board of County Commissioners may, upon the recom
mendation of the County Administrator, amend the
budget to provide for appropriate recommendation of the
County Administrator, amend the budget to provide for
appropriate reductions in the general operations budget,
each county Charter Officer’s budget, and the other
budgets incorporated in the County’s unified budget, and
in such event, shall publish a summary statement of the
proposed amendment to the budget necessary to bring the
budget into balance; and shall hold hearings for the pur
pose of such amendments in the manner required for the
original adoption of the budget and to make such changes
thereto as may be warranted.
(f) The seven (7) days notice requirement detailed
in paragraphs (b) and (d) above may be waived by resolu
tion of the Board of County Commissioners, on a case-by
case basis, if the satisfaction of that requirement would
preclude receipt of such funds.
(4) Transfers may be made between funds to correct er
rors in handling receipts and disbursements or for
budgeted transfers. Appropriations for expenditures in
any fund may be decreased and other appropriations in
the same fund correspondingly increased by motion
recorded in the minutes, provided that the total of the ap
propriations of the fund be not changed.
SEC. 1104 BUDGET REVIEW BOARD
There shall be a Budget Review Board for the County,
comprised of citizens of the County, which shall hear and
review budget disputes, and advise the Board of County
Commissioners regarding any budget disputes among the
132
parties described in Section 1104.3 in relation to the ten
tative budgets as promulgated under Section 1103.2 (2) of
this Charter.
SEC. 1104.1 APPOINTMENT OF THE BUDGET
REVIEW BOARD
The Budget Review Board shall consist of five (5)
members appointed as follows:
(1) Prior to June 1 of each year the Board of County
Commissioners shall appoint two (2) members and the
Elected County Charter Officers, acting as a group, shall
appoint two members.
(2) These four (4) members shall select the fifth (5th)
member.
(3) In the event said four (4) members cannot agree
upon the fifth (5th) member within thirty (30) days after
said members take office, the Chief Judge of the Circuit
Court serving Escambia County shall designate the fifth
member.
SEC. 1104.2 QUALIFICATIONS OF MEMBERS
Members of the Budget Review Board shall be qualified
electors of the County. No member of the Budget Review
Board shall be employed in any capacity by any agency
receiving funds from Escambia County; nor shall any
member hold or be a candidate for any paid public office
or employment or be a member of any local, state or na
tional committee of a political party or an officer in any
partisan political club or organization.
SEC. 1104.3 DELIBERATIONS OF THE BUDGET
REVIEW BOARD
The Budget Review Board shall meet as necessary to
consider the budgetary disputes and render its opinion
133
thereon prior to the scheduled public budget hearings.
Each affected Elected County Charter Officer and the
Civil Service and Personnel Board shall have the right to
appeal to the Budget Review Board, and the right to ap
pear before the Board and present relevant evidence. Ap
peals to the Budget Review Board shall be in writing and
shall be filed with the County Administrator not less than
three (3) days prior to the scheduled public budget hear
ings. The opinions and recommendations of the Budget
Review Board regarding any budgetary dispute shall be
presented to the Board of County Commissioners in
writing, but shall be considered as advisory only. In the
event of judicial review by certiorari, however, such writ
ten opinions and recommendations shall be admissible as
evidence.
SEC. 1104.3 DELIBERATIONS OF THE BUDGET
REVIEW BOARD
The Budget Review Board shall meet as necessary to
consider the budgetary disputes and render its opinion
thereon prior to the scheduled public budget hearings.
Each affected Elected County Charter Officer and the
Civil Service and Personnel Board shall have the right to
appeal to the Budget Review Board, and the right to ap
pear before the Board and present relevant evidence. Ap
peals to the Budget Review Board shall be in writing and
shall be filed with the County Administrator not less than
three (3) days prior to the scheduled public budget hear
ings. The opinions and recommendations of the Budget
Review Board regarding any budgetary dispute shall be
presented to the Board of County Commissioners in
writing, but shall be considered as advisory only. In the
event of judicial review by certiorari, however, such writ
ten opinions and recommendations shall be admissable as
evidence.
134
The Board of County Commissioners shall provide a
suitable meeting room, secretarial assistance, and such
other support as may be necessary for the Budget Review
Board to perform its duties.
SEC. 1105 BONDS
SEC. 1105.1 OUTSTANDING BONDS
All outstanding bonds issued by former governments in
cluding the Board of County Commissioners of Escambia
County and all special districts or authorities abolished or
altered by this Charter are obligations of the County
government; however, payment of such obligations and
the interest thereon shall be made solely from and charged
solely against funds derived from the same sources from
which such payment would have been made had this
Charter not become effective.
SEC. 1105.2 AUTHORITY TO ISSUE
The County shall have the authority to issue any bonds,
certificate of indebtedness or any form of tax anticipation
certificates authorized by the Constitution, general law,
and this Charter.
SEC. 1105.3 SALE OF BONDS
All bonds issued by the Couunty shall be duly advertised
and shall be sold in the manner which produces the lowest
net interest cost for such bonds, calculated as the Commis
sion may prescribe.
S E C . 1104.4 S U P P O R T
135
The County shall have the necessary authority to ad
minister the collection of funds and the payments of
amounts due on any bonds.
ARTICLE XII
CODE OF ETHICS
SEC. 1201 PURPOSE
It is essential to the proper conduct and operation of
County government that public officials be independent
and impartial, and that public office not be used for
private gain other than the remuneration provided by law.
The interest of the citizens of Escambia County, therefore,
requires that this Charter protect against any conflict of
interest and establish standards for the conduct of elected
officials and County employees in situations where con
flicts may exist.
SEC. 1202 APPLICATION OF THE CODE
OF ETHICS
All elected County officials, and all County employees
or agents shall be subject to the code of ethics for public
officers and employees as provided in Part III of Chapter
112, Florida Statutes, as such chapter now exists or may
hereafter be amended.
SEC. 1202.1 STANDARDS
(1) Conflict of Interest. No officer, employee, or
agent of the County shall knowingly:
(a) Engage in any business or transaction or have a
financial or other personal interest, direct or indirect,
which is incompatible with the proper discharge of his of
SEC. 1105.4 A D M IN IS T R A T IO N
136
ficial duties or would tend to impair his independent
judgment or action in the performance of his official
duties;
(b) Engage in or accept private employment or
render services for private interests when such employ
ment or service is incompatible with the proper discharge
of his official duties or would tend to impair his indepen
dent judgment or action in the performance of his official
duties;
(c) Disclose privileged information concerning the
property, government, or affairs of the County, or any
part thereof, without proper legal authorization, nor shall
he use such information to advance the financial or other
private interest of himself or others;
(d) Accept any valuable gift, whether tangible or
intangible, from any person, firm, or entity which, to his
knowledge, is interested directly or indirectly in any man
ner and to any extent in business dealings with the County
government or a part thereof; provided, however, that any
such officer, employee, or agent who may be a candidate
for public office may accept campaign contributions and
services in connection therewith in accordance with
general law;
(e) Represent private interests in any action or pro
ceeding against or in any way involving the County.
(f) Vote or otherwise participate in the negotiation
or the making of any contract with any business or entity
in which he has a financial interest, whether directly or in
directly, and whether present or prospective.
(2) Disclosure. Any officer, employee, or agent of the
County having any private financial interest, directly or
indirectly, present or prospective, in any contract or mat
137
ter pending before or within any department of the Coun
ty shall disclose such private interest to the Board of
County Commissioners. Any member of the Board of
County Commissioners who has such a private financial
interest in any matter pending before the Board shall
disclose such private interest in public which shall be
recorded in the minutes, and shall disqualify himself from
participating in any decision or vote relating thereto. Any
officer or employee of any independent agency of the
County to which this Code of Ethics applies who shall
have any private financial interests as aforesaid in any
contract or matter pending before or within such indepen
dent agency shall disclose such private interest to the
government body of such independent agency.
(3) Use of Public Property. No officer, employee, or
agent of the County, or any agency or part thereof, shall
use property owned by the County for personal benefit,
convenience, or profit.
SEC. 1203 FINANCIAL DISCLOSURE
All elected County officials and the County Ad
ministrator, all County department heads, the County At
torney, and the administrators or directors of each County
independent agency, institution, or facility employing
more than five (5) employees shall be subject to the finan
cial disclosure provisions of Section 112.3145, Florida
Statutes (1977) as such section now exists or may hereafter
be amended.
138
Penalties for the violation of either the code of ethics or
the financial disclosure requirements as provided in this
article shall be in accordance with the general law of the
State of Florida.
S E C . 1204 P E N A L T IE S
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SEC. 1301 EFFECTIVE DATE
This Charter shall become law when approved by a ma
jority of those voting in a special election to be held in the
County under the provisions of the Constitution and Laws
of Florida. If so approved the effective date of this
Charter shall be January 1, 1980.
SEC. 1302 AMENDMENT
This Charter shall be amended only by referendum elec
tion. Amendments may be proposed by one (1) of three (3)
methods described in this Section. Each proposed amend
ment shall embrace but one subject and matter properly
connected there-with.
SEC. 1302.1 AMENDMENT BY BOARD OF COUNTY
COMMISSIONERS
The Commission by a vote of five (5) members shall
have the authority to propose amendments to this Charter.
However, they may not exercise such power within one (1)
year of the effective date of this Charter.
SEC. 1302.2 AMENDMENT BY PETITION
Amendments to this Charter may be proposed by a peti
tion signed by a number of registered voters equivalent to
139
five (5) percent of the number of voters registered for the
last general election. Any such petition shall be filed with
the Board of County Commissioners and shall be
validated or invalidated by the Supervisor of Elections.
SEC. 1302.3 CHARTER REVIEW COMMISSION
The Board of County Commissioners shall appoint,
within five (5) years from the effective date of this Charter
and at least every ten (10) years thereafter, a Charter
Review Commission of eleven (11) members whose duty it
shall be to review the Charter. The Charter Review Com
mission shall be organized and shall function in the man
ner set forth in Sections 125.61 (2) and 125.62 Florida
Statutes, (1977). Within one (1) year of its initial meeting
the Charter Review Commission shall present to the Board
of County Commissioners its proposed amendments, if
any, to the Charter. The Board of County Commissioners
shall then comply with the provisions of Section 1303 of
this Charter. Upon completion of their report, the Charter
Review Commission will be dissolved.
(1) Any amendment proposed in accordance with this
Article shall be subject to referendum. Notice of said
referendum, together with the exact language of the pro
posed amendment, shall be published twice in a newspaper
of general circulation in the County not more than forty-
five (45) days nor less than thirty (30) days prior to the
referendum election, and another notice shall be likewise
published not more than ten (10) days nor less than five (5)
days prior to the referendum election. Proposed amend
ments shall be placed on the ballot as received, w'ithout
revision. Passage of proposed amendments shall require
approval of a majority of electors voting in said election.
(2) All proposed amendments must be presented by the
140
County Commission to the electorate at the next general
or special election unless submitted within sixty (60) days
of said election; or, the County Commission, by an affir
mative vote of five (5) Commissioners, may call a special
election to present proposed amendments to the elec
torate.
SEC. 1304 EFFECT ON LOCAL LAWS
All existing ordinances, regulations and resolutions of
the County shall remain operative except where inconsis
tent or indirect conflict with this Charter or until amended
or repealed by the Board of County Commissioners.
SEC. 1305 CONFLICT OF COUNTY ORDINANCES
WITH MUNICIPAL ORDINANCES
Notwithstanding any other provisions of this Charter,
any County ordinance in conflict with a municipal or
dinance shall not be effective within the municipality to
the extent of such conflict.
SEC. 1306 POLITICAL ACTIVITY
All officers and employees of the Charter Government
shall retain the right to hold membership in, and support,
a political party, to vote as they choose, to express private
ly their opinions on all political subjects and candidates, to
maintain political neutrality, and to attend political
meetings.
However,
(1) No employee of the County shall hold, or be a can
didate for, public or political office.
(2) No officer or employee of the County or member of
the Civil Service and Personnel Board shall solicit any
assessments, contributions, or services, for any political
party or candidate from any employee of the County.
141
(3) No employee of the County or member of the Civil
Service and Personnel Board shall take an active part in
any political campaign on county property or during his
duty hours.
(4) No leave of absence shall be granted to any person
for the purpose of participating in any political campaign.
SEC. 1307 SEVERABILITY
If any part of this Charter is held unconstitutional, the
remainder thereof shall remain in full force and effect.
SEC. 1308 INELIGIBILITY FOR APPOINTMENT
No elected County official or member of the Civil Ser
vice and Personnel Board during the term for which he has
been elected or appointed, or for one (1) year thereafter,
shall be eligible for appointment to any office, position or
employment in the Charter Government which carries
compensation.
Any elected official of this Charter Government may be
recalled and removed from office by petition and recall
election in accordance with the procedures established in
Section 100.361, Florida Statutes (1977).
SEC. 1310 DISTRICT SCHOOL SYSTEM -
RELATION TO CHARTER GOVERNMENT
The functions now performed by the Civil Service and
Personnel Board, the Property Appraisor, the Tax Collec
tor and any other departments or agencies of the County
for the District School Board or its employees shall, where
not inconsistent with this Charter, continue to be perform
ed under this Charter.
142
A vacancy in the office of any elected County official
shall occur upon the death of the incumbent, his removal
from office, resignation, succession to another office,
unexplained absence for sixty (60) consecutive days,
failure to maintain the residency required, or upon failure
of one elected or appointed to the office to qualify within
thirty (30) days from the commencement of the term of of
fice or appointment. Vacancies shall be filled in accor
dance with the Constitution and Laws of Florida.
SEC. 1312 SUSPENSIONS
Suspensions from office of any County elected official
shall be for cause and shall be in accordance with the Con
stitution and Laws of Florida.
SEC. 1313 SPECIAL ACTS
The functions, responsibilities, duties and obligations
under or pursuant to all Special Acts not mentioned in this
Charter relating to Escambia County, Florida, that are
regulated or governed by the Board of County Commis
sioners and/or their funding source is the Commission are
hereby transferred to and vested in the Charter Govern
ment. Except as provided in Section 1006.2 (12) above, all
existing Special Acts incorporated by reference elsewhere
in this Charter and Special Acts affecting the duties
and terms of office of Elected Charter Officers may be
amended or repealed only by amendment to this Charter.
Other Special Acts vested in the Charter Government by
this section may be amended or repealed by ordinance
enacted by the Board of County Commissioners. No
Special Acts subsequently enacted shall affect the Charter
Government without the specific approval of the voters.
S E C . 1311 V A C A N C IE S
143
ARTICLE XIV
TRANSITION PROVISIONS
SEC. 1401 REFERENDUM AND BALLOT
Election on this Charter shall be held in accordance with
the requirements of the Constitution and Laws of Florida.
The question on the ballot shall be as follows:
SHALL THERE BE A HOME RULE CHARTER
FOR ESCAMBIA COUNTY, FLORIDA, PRO
VIDING FOR THE RESTRUCTURING OF COUN
TY GOVERNMENT, WHICH SHALL TAKE EF
FECT JANUARY 1, 1980, AS PROPOSED BY
CHARTER DATED JUNE 18, 1979.
FOR HOME RULE CHARTER:------------------------------
AGAINST HOME RULE CHARTER: _____________
SEC. 1402 ADDITIONAL REFERENDUM QUESTION:
An additional question shall be provided on the referen
dum ballot to read as follows:
SHALL THIS HOME RULE CHARTER PROVIDE
FOR NON-PARTISAN ELECTIONS OF ALL
COUNTY OFFICIALS?
FOR NON-PARTISAN ELECTIONS:____________ —
AGAINST NON-PARTISAN ELECTIONS: _--------------
SEC. 1403 OFFICES AND OFFICERS OF
FORMER GOVERNMENT
Unless otherwise provided by this Charter all offices,
officials, boards, commissions and agencies of the former
government shall continue to perform their respective
duties and functions until their respective successors have
been elected or appointed and take office.
144
All proceedings and petitions pending before any officer
or office department or board of any of the former
governments or districts shall remain in full force and ef
fect. All such petitions, hearings or other proceedings shall
be completed by the offices, officers, departments or
boards of the Charter Government succeeding to the
rights, duties and obligations of former governments.
SEC. 1405 INTERIM VOTING RULES - BOARD
OF COUNTY COMMISSIONERS
Until the election and seating of the two (2) additional
County Commissioners established by this Charter, all
voting rules and procedures of the former Board of Coun
ty Commissioners shall remain in effect.
S E C . 1404 P R O C E E D IN G S C O N T IN U E D
145
STATE OF FLORIDA
COUNTY OF ESCAMBIA
I, Joe A. Flowers, Comptroller and ex-officio Clerk to
the Board of County Commissioners in and for the Coun
ty and State aforesaid, do hereby certify that the attached
is a true and correct copy of the proposed Home Rule
Charter for Escambia County, as filed with me by the
Chairman of the Escambia County Charter Commission
on June 29, 1979, and made a part of the permanent
records of the Board of County Commissioners of Escam
bia County, Florida.
Joe A. Flowers
County Comptroller and
ex-officio Clerk to the
Board of County Commis
sioners of Escambia
County, Florida
/s / Joe A. Flowers
Joe A. Flowers,
County Comptroller
SEAL
146
EXCERPTS OF TRIAL TRANSCRIPT
3|C * * * *
TESTIMONY OF DR. JERRELL H. SHOFNER
[13] DR. JERRELL H. SHOFNER,
called as a witness by the plaintiffs, being first duly sworn,
testified as follows:
DIRECT EXAMINATION
[14] BY MR. BLACKSHERE:
Q. Dr. Shofner, you’ve been sworn? A. Yes.
MR. BLACKSHER: May it please the Court, this is Dr.
Jerrell H. Shofner, who was born in 1929 in Haslet, Texas.
He has a high school diploma from Grapevine High
School in Texas, bachelor of science from Florida State
University in 1960, a master of science from Florida State
University in 1961, a PhD. from Florida State University
in 1963. He has been on the faculties as an assistant pro
fessor and associate professor at Florida State University,
Georgia Southern College, Texas Woman’s University,
University of Florida, and most recently he is a full pro
fessor and the chairman of the Department of History at
Florida Technological University in Orlando. Dr. Shofner
has also been the assistant dean of the College of Arts and
Sciences at Texas Woman’s University. During, he’s been
fourteen years in the United States Air Force and during
the last eleven years, during 1949 to 1960, he was able to
do, begin his career at Florida State University as a stu
dent. Dr. Shofner is a historian.
THE COURT: He’s a what, sir?
MR. BLACKSHER: Historian.
THE COURT: Yes, sir.
147
[15] MR. BLACKSHER: He is, among other things,
a member of the Florida Advisory Board for the National
Historical Publications and Records Commission. He is a
consultant of the Florida League of Women Voters Con
ference on the Executive Branch of Government. He is a
member of the Editorial Board of the Florida Historical
Quarterly, or he was from 1969 to 1977. He is presently
president of the Florida Historical Society recently placed
in office this year. He is the program chairman for the
Conference on Ethnic Minorities of the Gulf Coast
History and Humanities Conference which will be held in
Pensacola in October of this year. He has a number of
scholarly achievements and awards including Phi Beta
Kappa and a number of other professional awards and
memberships. Among his important publications which
we would call to the attention of the Court are a book
published in 1974 called Nor is it Over Yet: Florida in the
Era of Reconstruction, 1863 to 1877. And among the ar
ticles that he has published we would call to the Court’s at
tention “The Florida Constitution of 1868” in the Florida
Historical Quarterly for 1963; “Fraud and Intimidation in
the 1876 Election in Florida,” again in the Florida
Historical Quarterly, 1965; “Political Reconstruction in
Florida,” in the Florida Historical Quarterly, 1966. He
[16] submitted the section on Florida to Collier’s En
cyclopedia in 1971 and an article called “Militant Negro
Laborers in Reconstruction Florida,” Journal o f Southern
History, 1973. The documents marked as plaintiffs’ ex
hibit 1, which is on the clerk’s desk - strike that, plaintiffs’
exhibit 4, which is on the clerk’s desk, is the curriculum
vita of Dr. Shofner and contains other information about
Dr. Shofner. Is what I have read just now, Dr. Shofner,
correct? A. Yes.
148
THE COURT: You submit him as an expert. Does
anyone wish to inquire at this time of him?
MR. CATON: No specific inquiries in that area.
MR. BLACKSHER: Your Honor, for the record, we
seek to qualify Dr. Shofner as an expert in Florida
political and social history.
THE COURT: Yes, sir. They say they don’t wish to.
You may so treat him as an expert in that direction and
proceed.
DIRECT EXAMINATION RESUMED
BY MR. BLACKSHER:
Q. Dr. Shofner, when did the lawyers for the plaintiffs
in this case first contact you? A. The latter part of
January this year, as I recall.
Q. And what did we ask you to do for us, please?
[17] A. You wanted me to provide the general
historical background for the pattern of segregation and
disenfranchisement of blacks in Florida in state and local
government.
Q. Did we ask you to investigate anything about at-
large elections in Florida? A. Well, yes, that was the
specific issue. The question is when at-large elections were
implemented and when they were changed to districts and
that sort of thing.
Q. Dr. Shofner, is your consultant’s fee in any way
contingent on the outcome of this litigation? A. No.
Q. Dr. Shofner, have you ever participated in litiga
tion before as a witness? A. No.
149
Q. What additional sources of information, that is,
over an above the information you have already acquired
in your many years as a historian in Florida, have you
referred to to prepare your testimony for this
trial? A. That is specific materials?
Q, Yes. A. Fve used the journals of the Constitu
tional Convention in the Constitution of 1885. The
statutes, that is, session laws and annotated codes as ap
propriate from 1885; some newspapers, The Tampa
[18] Tribune predominantly, but a couple of others here
and there related to specific dates. And that’s about it, I
guess. I beg your pardon, I’ve left out something. I did
read Edward C. Williamson’s recent published book on
Florida in the Bourbon Era, the approximate title, 1877
-1893.
THE COURT: Eighteen seventy-seven to -
A. Ninety-three.
Q. Dr. Shofner, is there a professional methodology
for the study of history? A. Yes, it’s almost as broad as
there are historians, but the historian has the, in our socie
ty, the disposition of being both an artist and a scientist in
the sense that there has developed a body of methodology
known as social science which historians apply as ap
propriate to their particular subject matter fields, but of
course the historian is dealing with not just the past but
evidence about the past and sometimes the squirrels eat up
the evidence and that sort of thing so the historian’s job is
to immerse himself broadly enough in all the materials of a
particular period and to create a record of the past, a story
°f the past, that being the artist side of it.
Q- Specifically I think what I’m getting at, does the
[19] historian do more than just investigate the record of
what appears in various documents and report those
150
records? Does he do more than just report? A. He cer
tainly does. He does and must make judgments about
what he finds. It’s the historian’s responsibility. But I
think that you ought to broaden just a bit this concept of
documents. The historian, of course, does deal with
documents but not in a sense that we’re speaking only of
public documents. We deal with postage stamps, for ex
ample, and anything about the past, letters that people
have written and preserved, pamphlets that companies
issue about a bond sale or something like that.
Newspapers are a major source of political and social
history, especially in my field of the nineteenth and early
twentieth century Florida, in addition to government
documents and manuscripts as well. The census materials
exist in manuscript for 1830 through 1880, a tremendous
- that’s not available after 1880, but this is a tremendous
source in addition to statistical information that everyone
knows about.
Q. What about oral history? A. Oral history, it’s
very difficult to find someone still able to give it in my
period but, yes, we use oral history or evidences of oral
history. Well, that gets pretty far afield. In addition to
published works, secondary materials of that sort, all
[20] of which, of course, has to be tested for validity,
and the idea is to test one document against another with
parallel information. If a newspaper is available it’s good
to check it against the Journal o f the House o f Represen
tatives, let’s say, or whatever it happens to be.
Q. So no one particular source, a newspaper article or
a particular letter, for example, is taken on its face but
must be synthesized with all the evidence to establish
whatever conclusions you draw? A. Yes, that’s correct.
Q. Dr. Shofner, if you were to tell how the at-large
151
voting in local government in Florida came about as it is
today where would you begin your historical discussion?
A. It’s necessary, I think, to understand not only at-large
voting, the idea, but the implications of it, to begin with
the ending of the Civil War, at least, in 1865, because at
titudes of people at that time were influential with respect
to what happened. What happened was influential with
respect to what came after and patterns of attitudes of
whites versus blacks and the other way around too, for
that matter, were set at that time. So that’s where I would
begin.
[21] Q. All right, would you begin there. A. I’ll
be glad to. Florida was one of the, it was a very late
Southern state -
MR. CATON: Your Honor, if I could interrupt for a
moment, I didn’t quite hear where Dr. Shofner said he was
beginning his history lesson. If it was back in the eighteen
hundreds I would offer an objection on the basis of
relevancy, number one, because as I understood the ques
tion it was a history of the State of Florida, having nothing
in particular to do with the City of Pensacola or Escambia
County and, number two, even if it did I don’t know what
the relevance of what happened in the early or late or mid
dle eighteen hundreds has to do with the election system
today.
THE COURT: Maybe he can tie it in, if that’s the basis
of your objection. It might be tied up. It might go to the
weight, not the relevance, as I understand it, on the first
ground, and Mr. Blacksher is putting this in on the ques
tion of state policy as far as the State of Florida is concern
ed, I assume.
MR. BLACKSHER: Yes. We do not intend to in
152
troduce any evidence not related directly or indirectly to
the question of how the electoral system came about. In
order to put it in historical context there will be indirect
references and we feel like we’re charged by the case law to
develop the entire -
THE COURT: I’m going to let it in. It may show some
relevance. Of course, as you know, it antedates the Four
teenth and Fifteenth Amendments. I’ll let it in.
MR. BLACKSHER: Finally with respect to application
to Escambia County, Judge, it should be recognized the
county governments are presently operating under
statewide statutes.
THE COURT: It may tie in along the way. Objection
will be overruled. Proceed.
DIRECT EXAMINATION RESUMED
BY MR. BLACKSHER:
Q. Dr. McGovern, continue. Dr. Shofner, excuse me.
A. As I was saying, Florida was one of the typical
Southern cotton-producing states before the Civil War.
After, too, for that matter. It had a population of about
54 percent white, 46 percent black. All but nine hundred
thirty-two of the latter were slaves. The Civil War resulted
in -
THE COURT: You say, wait a minute, the population
of Florida after the war was what?
A. At the beginning of the war it was about 56 percent
white and about 44, I beg your pardon, about 54 percent
white, 46 percent black. There were about sixty-two thou
sand some-odd slaves in the state and nine hundred
153
[23] thirty-two free blacks whose activities were
regulated by law, incidentally. Now, when slavery was
ended by the Proclamation of Emancipation and the sur
render of Lee in 1865, the President who had presided over
the United States up to that point was killed almost at the
same time. A new man was inaugurated in the person of
Andrew Johnson, who chose to implement an existing
reconstruction or readmitting of the southern states to the
Union, to get them back to a normal situation in the
Union, was the way he phrased it. He therefore appointed
civil governors who registered voters and called for con
stitutional convention, which instituted the so-called
Johnson Plan of Reconstruction in Florida. The people
who wrote those, that constitution, and who acted in the
first legislative session under it enacted a series of laws
which came to be known popularly as the Black Codes in
that they distinguished clearly between white and black
citizens, and the way this came about, just as an example,
a man named Anderson J. Peele, who was from Lloyd,
Florida, and I think later on went to Texas and became at
torney general of the state, but anyway he was not there
yet, presided over a committee which was to make the
laws of Florida consistent with the actions of recent years,
and that meant to, of course, wipe out the old slave code
and include the Freedmen into the body politic, or at
[24] least into the body of free people. And his idea was
that the Freedmen should be elevated to the position of
free blacks before the war. And in his address to the
Legislature he said, to give you an idea of what he meant
by this, “There was nothing wrong with the much ma
ligned but benevolent institution of slavery except perhaps
the lack of marriage law. Therefore we should depart no
more than absolutely necessary from that institution.”
And they didn’t. This left blacks in an inferior position.
154
They could not testify in court except in cases involving
blacks, as a case in point, and much more. This happened
throughout the other southern states, and Johnson’s plan
of reconstruction from the executive branch was over
turned by a growing group of so-called Radical
Republicans in the Congress. They were able to stop
Johnson’s plan and replace it with one of their own known
as Congressional Reconstruction, which dates from about
March 2nd, 1867. It put a military commander in charge.
THE COURT: What date did you say?
A. March 2nd, 1867, was the date of the first
Reconstruction Act. There were some supplemental ones
but that’s the one that was important. It provided for a
military commander, major general, to be placed in charge
of various districts. Florida was in the Third District. And
the general was to do it all over again with the difference
that oaths of loyalty had to be taken by all the registrants
for the election, including all adult Negro males. And in
the election which followed, let’s see, there were about
something like fifteen thousand black registered and about
eleven thousand whites. Those are rough figures.
Q. What year are we in now? A. Sixty-eight. Well,
late ‘67. This was completed, I think -
MR. CATON: Excuse me, could you clarify, when you
say ‘68, we’re talking about 1868? A. Yes.
MR. CATON: Thank you.
THE COURT: I will assume that’s what he was talking
about. Proceed, sir. I think it’s a reasonable assumption.
A. In the convention the delegates to the convention
elected came together in January, 1868, and this is the so-
called Republican Constitution, the constitution of 1868,
155
which was ratified in that year, and civil government was
restored in Florida on July the 4th, 1868, with a man
named Harrison Reed from Wisconsin as Governor. Now,
[26] that constitution and the convention is very impor
tant because it was made up, the convention, of eighteen
black people and the rest of the forty-six delegates were
white.
THE COURT: Of how many delegates?
A. There were forty-six delegates.
THE COURT: You’re speaking now of the convention
that adopted the constitution of 1868?
A. Yes, sir. Of the remaining people about, as near as
I’ve been able to determine, were what we would refer to
as Conservatives and later Conservative Democrats. The
remainder were a combination of white Republicans,
referred to in the parlance of the time and a long time after
that as carpetbaggers if they were from outside the state,
federal officers or Freedmen Bureau officials who hap
pened to be in the state for one reason or another, but a
good many of them were local people, native whites or
people who lived a long time in Florida, referred to as
scalawags. That was a defamatory term. But they didn’t
agree on the kind of state they wanted and through some
very extraordinary procedures, including secession from
the convention, a group of moderate white Republicans
wrote a constitution which guaranteed white government
in the State of Florida under this reconstruction law. Har
rison Reed, for example, commented on it to a prominent
[27] democrat that, “we have saved the state for the
white people.” The way they did this was to apportion
representation not according to numbers but rather more
according to space.
156
Q.You mean the legislature? A. In the legislature.
THE COURT: According to what?
A. According to geography, in that each county must
have at least one representative in the lower house and no
county more than four. The population of Florida was ar
ranged so that had it been numerically proportional Leon
County, for example, would have had seven members in
the lower house and the four counties on the lower end of
the state except Monroe, let’s see, Dade, Broward,
Brevard and Polk, Dade had fourteen voters in those days,
incidentally, would have shared a representative. So by re
quiring each county to have at least one and no county
more than four, the people who wrote the constitution
guaranteed that the white counties would dominate the
lower house and the Senate districting was similar to this.
Q. Were there some black counties at that time, ma
jority black counties? A. There were ten counties in the
northern part of the state, namely the old cotton belt, plus
Nassau and Duval in the northeastern corner which had,
all these had a majority of black people in them, and not
[28] only that but the majority of black people in the
State of Florida lived in those ten counties. So you have,
there are a total of thirty-nine counties. The other twenty-
nine then had white majorities and so people in the twenty-
nine white counties wouldn’t always have the same kind of
desires with respect to representation that the people in
those ten northern counties had.
Q. How was black control of the local government in
the counties secured under the 1868 constitution?
A. That was the other provision of the constitution.
They wrote a constitution that gave the Governor power to
appoint every officer in the state except local constables,
including all the court officials, all the cabinet members,
157
all the county officials and community officials except
local constables. A voter under this constitution would
vote for a constable, a member of the House, member of
the Senate, Governor, Lieutenant Governor, and that was
it. So with the election of Harrison Reed, who was a
member of this moderate group, they had pretty close con
trol of the state then. But the Republicans weren’t able to
build a cohesive party. They soon were fighting among
themselves and pretty much discredited themselves in the
state over the next eight years so that in a very close elec
tion [29] and one in which the national presidency was
at stake involving Republican Rutherford B. Hayes versus
Samuel J. Tilden, and Florida’s vote was decisive in the
outcome of that election, some bargains were struck by
which the Republican candidate was allowed to take the
presidency. Hayes was seated. A Democrat, George F.
Drew, was seated as Governor of Florida, and this was
hailed as the redemption of Florida, the restoration of
home rule and that kind of thing. Hayes had agreed to
withdraw troops from the South in general, not just
Florida. They left voluntarily in Florida on January 19,
but there still were troops in Louisiana and South
Carolina. He agreed to withdraw them and he did. When
he did, the Republican administrations in those two states
fell and that was the last time that federal troops were used
in the South with regard to Reconstruction laws. After this
in Florida there were some very close elections but the very
powerful governor’s office, you see, was now in the hands
of the Conservative Democrats. He appointed, for exam
ple, county commissioners. The county commissioners
established the polling places and handled the election
machinery and it was fairly easy that way to manage to get
majorities. But as that happened year after year whites in
the state became more distant from reconstruction or less
fearful of a return to Republican or black rule, as they call
it.
158
[30] Q. What was, was the 1885 constitution the first
constitution of the so-called Redemptionists? A. Yes, it
grew out of this. It took a while because there were a lot of
people who didn’t want to risk calling together a constitu
tional convention, especially the whites who lived in those
ten counties dominated by black majorities, but there were
twenty-nine other counties who had most —
MR. CATON: Your Honor, excuse me. If I could inter
rupt again at this time, we feel that most of this testimony
is irrelevant so I haven’t made several objections when I
could have.
THE COURT: You want a continuing objection? I note
a continuing objection to the relevance of this till such
time as you state.
MR. CATON: Yes, but I would like to state one more*
objection at this time, if I could, and that is when Dr.
Shofner starts expressing opinions such as the one he just
did here about the whites that lived in the ten counties that
were predominently black, now, before he states an opi
nion as to what those people did like or didn’t like I would
like to know the basis for him arriving at that opinion. The
facts that he states I don’t mind but when he states opi
nions like that —
[31] THE COURT: You may ascertain that on cross
examination, if you wish to do so.
MR. CATON: Well, I would like to object to him
stating such an opinion.
THE COURT: The objection is overruled, sir. I note a
continuing objection to relevancy to keep you from jump
ing up and down until such time as you withdraw it.
MR. CATON: Yes, sir.
159
THE COURT: And overrule it, unless I change my
mind. Proceed, sir.
Q. The 1885 constitution then, Dr. Shofner?
A. Okay, it’s considerably more than opinion but there
was a good deal of discussion in public, in private and
elsewhere among members of the Conservative
Democratic Party from these ten counties I referred to and
their colleagues in other counties. They were going to call
for a constitutional convention in 1882. It was defeated.
There was a call for a constitutional convention in 1884
and it was approved by something like a four to one ma
jority. Anyhow the convention met in the summer, early
summer of 1885, and the objections of the white people in
the northern counties, the black majority counties, was
met by a provision in this constitutional document that
reduced vastly the powers of the Governor, made most of
ficers in the state elective but continued the appointment
of county commissioners.
[32] Q. By the Governor? A. BytheGovernor.lt
also added a provision for a poll tax, and of course
ultimately the poll tax was implemented. This was ratified
at the next general election by a vote of about thirty-one
thousand to twenty-one thousand roughly. Then under
that new constitution the poll tax law was implemented in
1889 and you can see pretty much from the voting, the
election figures of 1888, 1890 and ’92 what the effect of
that was. In 1888 a Democrat won the Governor’s office.
Francis P. Fleming got about forty thousand votes and a
Republican named B. J. Shipman got about twenty-six
thousand votes. In 1890 there was no gubernatorial elec
tion but a statewide Comptroller’s race saw the
Republicans getting forty-seven hundred votes, forty-
seven hundred eleven, I think. In ’92, the next guber
natorial election, the Republicans didn’t put up a can
160
didate, A Populist ran and he received something like
eight thousand votes as opposed to roughly twenty or
twenty-five thousand for the Democrat, Henry Mitchell
Q. Are you making a point with suggestion to black
disenfranchisement? A, Pm suggesting the passage of
the poll tax law, the implementation of the so-called eight
ballot box law which came at the same time, by which the
[33] ballot boxes were marked according to names and
offices of the candidates, and people had to put the ballot
in the right box in order to have it counted, which was to
some extent, I suppose, a literacy requirement, it being
very difficult for a person to get the ballot in the right box
if he couldn’t read, had the general effect and was intend
ed to have the general effect of making it more difficult
for blacks to participate in the voting process. And those
figures I’ve mentioned are suggestive of the degree to
which they did have that effect.
Q. Is it your contention then that biacks were largely
disenfranchised by sometime in this period, 1890 or ’92?
MR. CATON: Your Honor, I will —
A. Largely.
MR. CATON: We’ve got a witness who can testify. Mr.
Blacksher doesn’t need to. I would prefer him not ask
leading questions to an expert witness.
THE COURT: That objection will be sustained. Mr.
Blacksher, don’t lead your witness.
Q. What evidence of black voting was there after the
passage of the poll tax and eight ballot box rule, Dr.
Shofner?
[34] A. What evidence of black voting?
Q. Yes, sir. A. Well, the opposition party could
161
only get a few votes and the opposition party tended to be
the party that got the black votes. So that’s the evidence
that I see, that they got a few thousand votes throughout
the eighteen nineties and it went even lower with the early
nineteen hundreds. Also the entire number of votes went
down in the early nineteen hundreds.
Q. Do you have an opinion as to how many black
voters there were by 1892? A. Less than four thou
sand.
Q. As opposed to how many were there, say, ten years
earlier? A. Around twenty-seven or eight thousand.
Q. Had that four thousand number changed ap
preciably by 1900? A. It continued to decline. By 1900
the election figures you get, you’ve just about got to go to
the Secretary of State’s office to find them. Very rarely did
they even bother to record the specific numbers because
nobody doubted the outcome. But it was a diminishing
number. But a few blacks continued to vote right on
through, through the early nineteen hundreds.
Q. Dr. Shofner, how did the all-white closed
[35] democratic primary develop in Florida? A. It
started spontaneously in some counties in the eighteen
eighties and of course this was going on about the country
as well. Some of the counties in Florida picked it up. It
became a more favorable thing as the eighteen nineties
passed, and in 1897 the Legislature passed a permissive
law allowing those counties which chose to nominate their
party candidates by primary. Then the Democratic Party
ruled in August, 1900, that the Democratic Party would be
made up of those people, and it spelled out who would
make, who would qualify as a voter. It would be people
who had been able to demonstrate that they voted the
democratic ticket in the past, national and state, from top
162
to bottom, I believe, was the was it was phrased. There
was a constitutional amendment in 1900 that was passed
by the 1899 Legislature, voted on and approved in 1900,
and in the election of 1900 the party had agreed that, “We
will allow, although it’s not yet constitutional, to have the
choice, the Governor still appoints them, but the party will
hold the primary and the people who win the primary will
be appointed by the Governor and affirmed by the
Senate.” And they were. Then in 1901 a mandatory
primary system passed. That’s the first time that you have
statewide primary voting by law.
[36] Q. You mean the law passed, the primary law
passed in 1897 was not mandatory? A. It was per
missive.
Q. By county, you mean? A. By county. Nineteen
one was mandatory.
Q. Let’s talk at this point and talk specifically about
how county commissioners and members of the Board of
Public Instruction were selected during this period, let’s
say from 1885 when the new Redemptionist constitution
came in. It provided, I think you said, for appointment by
the Governor? A. Yes. The law of 1887 enacted that
provision in a constitutional provision.
Q. That was the county commissioners. How did the
1885 constitution deal with school boards, Boards of
Public Instruction? A. There was law in 1889 that
made them elective and in 1893 that made them elective by
districts.
Q. The 1889 law did what? A. It changed them.
They’d been appointed.
Q. By whom? A. By the Governor. The 1889 law
made them elective from the counties and then the 1893
law made them elective by districts.
163
THE COURT: You mean single-member districts?
[37] A. Yes, sir.
MR. BLACKSHER: May it please the Court, with
respect to the 1893 law there’s some disagreement between
the parties whether it was 1893 or 1895. We have a copy of
the 1893 Act.
THE COURT: If he says it’s 1893, they can agree with it
or they can come in with evidence. It’s pretty far back
anyhow.
A. A law in 1895 was relevant perhaps, though,
because although the constitution of 1895 had provided
for separate schools for blacks and whites, although im
partial, which was a continuation, incidentally, the
Reconstruction law had not provided for integration of
schools, it provided for people to have integrated schools
if those chose; they didn’t choose. And then the 1885 con
stitution provided for separate schools but in 1895 a law
was passed imposing penalties on teachers and ad
ministrators who had anything to do with schools that
taught the races together. So that, it had been the case
already, but this it the first time you have penalties. This
would be one of the early Jim Crow laws as they were
referred to popularly after that.
Q. All right, why did, what happened in the political
scene to make it possible for county commissioners to
become elective instead of appointive by virtue of the 1900
[38] constitutional amendment? A. A 1907 statute
changed the election law.
Q. No, I’m sorry, you misunderstood my question.
What were the changes in circumstances within the body
Politic that permitted — A. I’m sorry.
164
Q. That permitted a change from appointive county
commissioners to elective county commissioners by virtue
of the 1900 amendment to the constitution? A. Well, it
was the diminution, vast diminution in number of people
voting for the Republican Party, which meant the diminu
tion in the number of blacks who were voting. Neither
blacks as a voting group nor the Republican Party as an
entity was a threat to the Democratic Party, which was
verbally again and again saying that it was there to main
tain white supremacy. And it does not require an opinion,
incidentally, because they said it specifically again and
again and again.
Q. Who said it? A. The people who were doing it,
the white democrats.
MR. LOTT: Your Honor, I object to this. If it’s not his
opinion it’s relation of hearsay evidence.
THE COURT: He’s basing his opinion on something
that he said that he read that people said. I don’t think so,
[39] Mr. Lott. I think it can come on in. As a matter of
fact I am not sure any of us so far have heard anything this
gentleman has said with which we have any real disagree
ment. It’s rudimentary or elementary or however you want
to take it that back in the days he’s talking about there
were indeed Jim Crow laws and indeed these other things
and these poll taxes and other things probably did have the
effect and were with the intention of trying to cut down
the Republican race and they were trying to get rid of the
carpetbagger era in all those days. I’m just wondering why
you all don’t want to stipulate to this instead of objecting,
if it has any relevance. I’ll overrule the objection. I don’t
know how much you want to go into, Mr. Blacksher. You
go into a lot of way back background. So far as I can tell
we’re not even up to 1900 yet and we’ve got a long way to
go.
165
MR. FLEMING: Your Honor, pardon me, before you
proceed further I just noticed a gentleman come in the
courtroom at the last minute. Mr. Toney Wilson is a
member of the county staff who I spoke to the Court
about during pretrial conference. Mr. Wilson will likely be
a witness in the case.
THE COURT: If he’s going to be your witness, get him
out of here. That’s your obligation. And advise him of the
[40] rule. Any witnesses in this room go out of this room
and it’s the obligation of counsel to advise them of the
rule. Mr. Fleming, I want you to screen your witnesses.
MR. FLEMING: What I was suggesting, Your Honor, I
was going to remind the Court that at the time of the
pretrial conference we discussed the matter of the
assistance of staff, Mr. Wilson in particular, and we’d ask
that he be excluded from the rule so that he could both
participate and assist counsel as well as testify.
THE COURT: Let’s see what they say about it. I don’t
know about that one. Do you have any objection to that,
sir?
MR. BLACKSHER: I think they’re entitled to one
representative in the courtroom, Your Honor.
THE COURT: Will this be your one representative?
MR. FLEMING: For the county, yes, sir.
THE COURT: All right, sir, you’ll be excused from the
rule.
MR. FLEMING: Thank you, Your Honor.
THE COURT: Proceed, sir.
166
DIRECT EXAMINATION RESUMED
BY MR. BLACKSHER:
Q. Dr. Shofner, let’s change the subject somewhat.
Could you tell us with respect to the black franchise what
role did violence and intimidation, both economic and
[41] physical, play in Florida?
A. It played eventually decisive role as the federal elec
tion supervisors and the United States Army ceased to
patrol and supervise elections, but it was vigorous during
the Reconstruction period itself. In fact there was so much
violence in Florida, mostly in the counties where there was
a large number of whites and blacks, in the counties where
blacks were, say, eight to one they were pretty quiet elec
tions and in the counties where the whites were in an over
whelming majority, the same thing, but in counties like
Jackson and Madison and Columbia and Alachua and
Marion where you have a large number of both, this is
where most of the contention came, it seems, and in
Jackson County, for example, what has been referred to
as the Jackson County War resulted in about a hundred
sixty-nine deaths between 1868 and 1871. This kind of
testimony, nightriding by organizations such as the Klan,
and incidentally, the Klan, the nightriding outfit in Florida
during Reconstruction was called the Young Men’s
Democratic Party. They were more honest than some.
And this brought about three laws by Congress known as
the Force Acts in the South, of course, Enforcement Acts,
which empowered the President of the United States to ap
point federal election supervisors at each polling place and
also to declare [42] martial law and use military force
where he felt that the civil authority had been exceeded. So
violence was a part of it and continued to be. Economic in
timidation was out on the front.
167
MR. LOTT: Judge, if I may interrupt a minute, we ob
ject to this line of testimony from the witness in that it
doesn’t relate to anything on official level of state policy,
and that’s the point the historian is trying to make here,
and particularly to the fact it doesn’t relate to any violence
or anything, he didn’t mention Escambia County at all.
We don’t feel it’s relevant to Escambia County or state
policy that he’s trying to prove.
THE COURT: Mr. Lott, I think perhaps to a large ex
tent your objection is good, but overall I’m having a little
problem on the violence and so forth. We’re still trying to
get it to state policy. That’s all this is about, I guess. I don’t
know how much further you’re going. Can’t we kind of get
on up? We’re still not up to 1900 even. We’ve got a long
way to go. There’s not much real argument, is there,
gentlemen, about the fact in the days he was talking about
indeed we did have poll tax laws and we had other things.
We had a period of time when we had carpetbagger
government and they threw that out and in turn in
timidated the blacks and tried to keep them from voting
[43] through poll tax and other ways, and their vote was
diluted beyond any question in those days. They simply
didn’t have a right to vote for many days. Is there any
argument about that?
MR. CATON: Basically, no, Your Honor.
THE COURT: I could almost take judicial notice of it,
can’t I, it’s been so well established historically?
MR. CATON: That’s the basic argument, is the relevan
cy.
THE COURT: We’ve still got to come on up. Can’t we
move this thing up a little bit? Let’s see what they say.
MR. LOTT: Your Honor, we’re content to rest on
168
determination by the Fifth Circuit in McGill in 1971, by
1900 the black vote was completely disenfranchised, and
we feel it’s already been determined.
THE COURT: That was in Florida?
MR. LOTT: Yes, sir, as to county commissioners and
school board.
THE COURT: If you want to, let’s jump beyond it
because you’re not even contesting the fact, what you say,
that the McGill opinion on the evidence there said they
were completely disenfranchised by 1900.
MR. LOTT: Yes, sir, and they spoke to Florida.
THE COURT: How’s that?
[44] MR. LOTT: The Court was speaking to Florida.
THE COURT: Speaking to Florida, so can’t we move
this along, sir?
MR. BLACKSHER: Yes, sir.
DIRECT EXAMINATION RESUMED
BY MR. BLACKSHER:
Q. Were the blacks entirely disenfranchised? Were
there no black voters at all by 1900, Dr.
Shofner? A. There were some, a few, here and there.
Duval County had a considerable number because of a
peculiar situation in Duval County. But a good many
counties had a few black voters.
Q. Did the violation and intimidation continue after
the turn of the century; and what relevance does the
violence and intimidation have to state policy? A. It’s
relevant among other things in that the state condoned it.
As blacks were pushed out of politics what you have was a
169
legalization of the custom that had existed in this earlier
period in that whites tended to feel themselves superior to
blacks. It was proper that they be kicked out of public af
fairs because they weren’t qualified to be there. It was a
necessary thing to resort to whatever violence, whatever
economic intimidation was necessary to bring about this
desirable end of white control of government. But it also
carried with it the legalization of the worst kinds of human
[45] violence. I’m not suggesting that the decent
lawmakers of the state condoned this but by leaving blacks
without a place to go for redress of grievances they opened
up to the worst kind of thugs some of the worst kinds of
mistreatment, and this continued well through the twen
tieth century, at least until 1951.
THE COURT: At least until when, sir?
A. At least until 1951 when an NAACP voter registra
tion man named Harry T. Moore was blown out of his bed
on Christmas night at Mims, Florida, and killed along
with his wife, her problem being that she was there with
him. So there were no indictments in this case and rarely
were there indictments in any of these cases. A Governor
of Florida in 1919 protested to a white executive secretary
of the NAACP who was named Shillady — the NAACP
by that time had decided it ought to do something about
the widespread lynching, and one thing it was doing was
writing the Governors of the States to let them know such
had happened in their state, and this was Sidney J. Catts,
who was a rather outspoken one of our Governors, and he
wrote, and this happened in Escambia County, incidental
ly, near Pensacola, and a man was taken out of a place
called Turpentine Camp, I confess I don’t know where
that was, there were a good many turpentine camps in
[46] Escambia County at that time, and he was accused
of a rape, which was very often the case. He was taken
170
away from a sheriff who may or may not have resisted the
mob. There was some discussion about that. And he was
burned to death. And Shillady was pointing out to the
Governor of the state this was kind of a bad way to go.
And the Governor responded to him in effect, “It’s none
of your business, that it would be ridiculous for me to try,
as you say I should try, to bring in the people who caused
this man’s death, because the public will not consent to
that kind of behavior on the part of a governor.” So it
seems to me that there was a continuation of the disen
franchisement of blacks, the relegation of them to an in
ferior position, and the encouraging then of violence once
we had got a habit of violence.
MR. BLACKSHER: With respect to the response of
Governor Catts, Your Honor, the text of his telegram to
Shillady is set out on page 17 of my findings. I would like
to get that in evidence.
THE COURT: I don’t know whether they have objec
tion to it.
MR. BLACKSHER: Dr. Shofner provided me this
telegram text.
THE COURT: Is that what you’re referring to?
A. Yes, sir, it is, and in my opinion it shows a
[47] continuation of what we’re talking about here.
THE COURT: What is it, exhibit what?
MR. BLACKSHER: On page 17 of the proposed fin
dings, Your honor. I could have him read from his notes
whats it says.
THE COURT: It would take longer to do it. Any objec
tions to it?
MR. FLEMING: Your Honor, I would interpose objec
171
tion at this time on a number of grounds, first relevancy
because it deals with the Governor and in no event with the
county commissioners or school board or city council and,
secondly, on the grounds of opinion in that the Governor
in this alleged statement is alleged to state his opinion with
respect to what the citizenship would stand for. I think it’s
inadmissible for both of those reasons.
THE COURT: Objection on both those grounds will be
overruled, if that’s the objection. It will be received in
evidence. Do you have it anywhere?
DEPUTY CLERK: No, sir, I don’t have it.
THE COURT: Where is it?
MR. BLACKSHER: I don’t know what number. Is it in
your exhibit list?
THE COURT: We didn’t put all the exhibits in evidence
as I said we were going to do at the start.
[48] MR. BLACKSHER: I said it’s in the plaintiffs’
proposed findings of fact.
THE COURT: I realize that.
MR. BLACKSHER: I was just going to have Dr.
Shofner read it, Your Honor, from his notes.
THE COURT: Let him go ahead and read it.
A. I didn’t bring any notes with me. What I’m giving
you was —
Q. Dr. Shofner, have you inspected our proposed fin
dings of fact before and did you provide me notes, some
of which I copied into these findings? And I refer you to
Page 17 in our proposed findings at the top, and would
you read the text of Governor Catts’ telegram to Mr.
Shillardy of the NAACP in 1919.
172
A. Catts’ reply in part was, “You asked me to see that
these lynchers are brought to trial. This would be impossi
ble to do as conditions now are in Florida, for when a
Negro brute or a white man ravishes a white woman in the
State of Florida there is no use having the people who see
that this man meets death brought to trial. Even if you
could find who they were. The citizenship will not stand
for it.”
MR. FLEMING: Your Honor, I renew the objection on
the grounds that it’s an inadmissible opinion.
THE COURT: Objection is overruled. Now, let’s see, 1
[49] had both you and Mr. Lott coming to me with ob
jections.
MR. FLEMING: Pardon me, Your Honor.
THE COURT: You all make objections together or
something. I believe I’ve had both of you on your feet with
objections.
MR. FLEMING: We’ll make an effort to, Your Honor.
DIRECT EXAMINATION RESUMED
BY MR. BLACKSHER:
Q. Now, Dr. Shofner, I would like for you to discuss
in a specific category here, isolate on the history of elec
tion systems for the county commission, and let’s try to
put it in order beginning where you did in the 1868 con
stitution and let’s just put it in line, how the county com
mission was chosen up to the present. A. Okay. The 1868
constitution provided for appointive county commis
sioners to be appointed by the Governor, confirmed by the
Senate, along with all the other officers in the state. The
1885 constitution changed all other officers, just about, to
elective, but continued the appointment of county com
missioners by the Governor with confirmation by the
173
Senate. This was implemented by statute in 1887. The situa
tion remained that way until the constitutional amend
ment ratified in 1900 that made them elective at large with
the party rules of 1900 saying, “We’ll go ahead and do it
this was in 1900. We’ll elect and [50] the Governor will,
by agreement, appoint as we choose.”
Q. So the primary was run at-large in 1900 as well as
the general election for county commissioners? A.
Primary and general election.
Q. All right, what happened next? A. The 1907
statute making county commissioners elective from
districts was implemented. I beg your pardon, nominated
in the primary nominating process. They continued to be
elective in the general election.
THE COURT: This is the 1907 statute made them
nominative?
A. To be nominated from districts by the voters of
those districts.
Q. So as of 1907 we had single member districts in the
primary, at-large elections in the general election, is that
correct?
A. Yes. This is confirmed by a noted historian in 1936,
William T. Cash, who is a reveered historian over at
Florida State College for Women, who wrote a history of
the Democratic Party, and he makes a special point of
this, that the Democratic Party by using the white primary
had gone far towards purifying politics because it allowed
them to exclude Negroes from the election, the only elec
tion that made any difference. The general election didn’t
matter after that time.
[51] THE COURT: What prevented the blacks from
becoming members of that Democratic Party in those days?
174
A. The Democratic Party rules said you had to be
white to be.
THE COURT: You had to be white?
A. Yes, and a male, of course. It was referred to as the
white primary.
Q. In 1907 was in the beginning or in the midst of
what is known as the Progressive Period nationally in elec
tions. Would you just explain what that was and what it
affected, what effect it may have had on voting schemes
here in Florida?
A. Okay, there was a considerable unrest throughout
the country which led to demands for getting the people
more directly into the political process. There were calls for
direct election of United States Senators and the right to
initiate legislation and call up judges on recall provisions
and to call up legislation which had been passed for what
was called a referendum, and many other things. Women’s
suffrage was considered. They wanted to outlaw alcohol
throughout the nation. And it was a widespread demand
throughout the country for the county commission form
of government, I mean the city commission, excuse me, ci
ty commission form of government was part of this move.
It included the [52] secret ballot or Australian ballot,
which was being implemented throughout the country.
THE COURT: Are you going to bring him to county
commissioners? You started on this. Are we getting away
from this and into background? Is this what you want him
to do?
MR. BLACKSHER: Yes, sir.
A. I’m sorry, I thought —
THE COURT: The question was to come on up to date
and give us the sequence on county commissioners.
175
Q. I’m sorry. County commissioners, 1907 was where
we left off on the chronology of county commissioners. I
apologize.
A. That is really the last thing that was done in Florida
as near as I’ve been able to determine with regard to coun
ty commission elections until 1954. It remained that way.
Q. How long did the white primary last?
A. The white primary lasted until 1945 in this state.
Q. Smith versus Allwright was — ?
A. Nineteen forty-four. It was followed by Davis ver
sus State o f Florida with respect to a suit from a man nam
ed Esau Chavis, a resident of Escambia County. The state
intervened in this case.
[53] Q. All right, sir, and after the end of the white
primary at that time were county commissioners still
elected in the primaries from single member districts in
1945?
A. Yes.
Q. And then when did the election system next
change?
A. It seems to me there were twenty-nine, about
twenty-nine at any rate, counties, which had gone to at-
large by special legislation.
THE COURT: By what date?
A. By 1954, between the late forties and ’54. The ’54
Ervin versus Richardson case decided by the Supreme
Court mandated at-large elections by declaring the 1907
statute unconstitutional. So it was uniform throughout the
state after 1954.
Q. Have there been any changes in the method of elec
176
ting county commissioners either in primary or the general
election since the 1954 Ervin versus Richardson case?
A, Have there been changes?
Q. Yes, sir. A. If so it’s on an individual basis. As
far as 1 know there haven’t been.
Q. All right. Now, with respect to the school board
[54] elections could we do the same —
THE COURT: Just a minute. The county commis
sioners, you say, since 1954, so far as you know they’ve
just been all at-large elections for county commissioners?
A. As far as the state policy is concerned. There hasn’t
been any change at the state level.
THE COURT: But also - A. Are you talking about
the local -
THE COURT: I’m talking about county commissioners
on state policy. State policy at that time was at-large elec
tions without primaries? A. Oh, the primaries were
made, the 1907 law which had allowed or required the
nomination in primaries -
THE COURT: It was knocked out by the court
decision? A. Knocked out by the court decision.
THE COURT: From that time on up you have at-large
elections. A. At-large.
THE COURT: Without primaries? A. In the
primaries. It doesn’t make much difference in the outcome
from 1954.
THE COURT: But also that law, when did it put into
effect the requirement that county commissioners, that
they had to run from and come from different, we had the
177
[55] residence requirement where they had to be residents
of various districts. A. They’d always been required to
live in the districts they represented and still do.
THE COURT: It’s always been that way? A. It was in
that early law, 1887 or, yes, they’ve always had to repre
sent a district.
DIRECT EXAMINATION RESUMED
BY MR. BLACKSHER:
Q. You mean even when the Governor was appointing
them? A. He appointed them from districts. That’s
been consistent, I think.
THE COURT: All right, sir.
Q. Could we do the same thing now, Dr. Shofner,
with respect to school board elections. A. Okay. The
1885 constitution did put Florida, the State of Florida, in
the business of supporting a public school system and it
provided for the establishment of county, what do they
call it, the superintendents, what was the commission call
ed, it was a school board.
THE COURT: Trustees?
A. The trustees, right.
Q. Are you talking about the trustees or the boards of
[56] public instruction? A. Okay, the Board of
Public Instruction is the term I was having trouble recall
ing there. We’ve changed all that now.
THE COURT: The Board of Public Instruction wasn’t
Provided for in the constitution of 1885, was it?
A. Boards, a state superintendent and county boards.
178
THE COURT: Trustees? A. They may have used
the term trustees. I’m not sure.
THE COURT: Let’s go along. I think it was trustees and
came by legislation to the board later. A. It’s a school
board anyhow.
THE COURT: All right, sir.
A. And in 1889 then the school board members were
made elective at-large from residence districts or they had
to live in the district from which elected. In ’93 they were
made elective by the voters of the district from which
elected. No I beg your pardon, that’s not correct either.
Q. Now, the notes that I had — A. Yes.
Q. The 1889 Act was appointive. A. That’s the step
I left out. Eighteen eighty-nine made them appointive,
[57] that’s right, and ‘93 made them elective but elective
at-large. I got ahead of myself. And then in 1907 at the
same time that the county commissioners were made, that
is, they were allowed to be nominated in the Democratic
primary from districts, the county school board members
were also made.
Q. Okay, once again that’s somewhat inconsistent with
my notes, which say that there was an appointive provi
sion in 1889 and in 1893 local counties were allowed to
elect their school board but they were from single-member
districts. A. Elected at-large, weren’t they?
Q. Well, we have the Act. A. Okay.
Q. So we will provide the Court with the Act and I
think it says single-member districts.
THE COURT: You’re talking now about law and I’m
going to let you get into it. 1 may be wrong. I think there’s
179
a slight mixup. I think what he’s talking about is they went
to the old trustee districts and when they said they would
come from the districts they would have several trustees
districts within a county.
A. Within the county, that’s right.
THE COURT: And that they were elected or appointed
from the particular districts. Somewhere along the way, of
course, they came along and we had a Board of Public In
struction by general law and got into something else, but
[58] for a period of time still had the trustees in the
districts but they finally were done away with. I believe it’s
something like that.
A. They were allowed in the late eighties, people in
subdistricts could vote to subject the trusteeships, and that
lasted apparently to the Minimum Foundation Law.
THE COURT: It lasted a long time. They got away
from it in Florida because they created the Board of Public
Instruction. You’re the historian but it’s my understanding
that distance had a great deal to do with it in those days.
A. Distance, that’s correct. That’s why the subdistricts
were created.
THE COURT: And more and more you had one body
you needed for the county. It didn’t have much to do with
race. That didn’t have much to do with it. Am I wrong in
that?
A. No, sir, I think that’s a major reason for it.
MR. BLACKSHER: May I approach the bench? These
are copies of the 1889 and 1893 statutes.
THE COURT: I’ll take them but I think really we need
to get beyond this. All you’re saying, doing so far, of
180
course, you had a pretty well pattern in the South in way
bygone days, and bringing it up to date. You’re getting
[59] closer but you’ve got this thing to 1907 on the school
board trustees and so forth and haven’t brought it up to
date, come to think of it, have we?
MR. BLACKSHER: Your Honor, perhaps I should ex
plain myself on where we think this evidence is taking us,
the theories. Would that be helpful at this point?
THE COURT: I think I know why you’re trying to bring
it in and you’re getting closer but I just realized all the
discussion was in 1907 on the trustees and the school
board, I think. We didn’t let him bring us up to date. 1
think he was a little mixed up.
A. I got ahead of myself.
DIRECT EXAMINATION RESUMED
BY MR. BLACKSHER:
Q. Go ahead, Dr. Shofner. A. This situation remained
constant through 1919. There was a condification of the
laws and annotation and another in ‘27 and in ‘39 another,
all of which kept the electoral system of the school boards
the same. And then in ‘47 after the white primary was done
away with in Florida but also at a time when the Minimum
Foundation Program, the large overhauling of the state
system financing education and other things was passed,
in that 1947 statute the school board members were made
elective at-large. Or I keep mentioning -
[60] THE COURT: Just a minute, sir. Are you telling
me school board members at-large were not made elective
at-large until 1947?
181
A. I’ve used the wrong term. The Democratic primary
has been used as the election and I’ve fallen error to the
same thing. They had always been elected at-large in the
general election but they were made to be nominated from
counties at-large in 1947.
THE COURT: Are you sure they were not nominated
in primaries at-large before that time, sir?
A. Yes, sir.
MR. BLACKSHER: Single-member districts.
THE COURT: They weren’t nominated from districts
before that time; they were nominated at-large. In the
primary they went at-large before that time, didn’t they, in
the primaries?
A. Not to my knowledge.
THE COURT: Before 1947?
A. Not before 1947. From 1907 to 1947 —
THE COURT: From 1907 to 1947 they went what in
primaries? At-large?
A. The primary was from districts from 1907.
THE COURT: I may be wrong but I think we’re still
confusing trustees and board members. Do you know that
[61] much about this?
MR. RAY I’m still confused, Judge. I don’t know.
THE COURT: Well, I’m going to get him, we’ll let him,
I’m going to get him to check it. I think there’s a little con
fusion. I may be wrong. My recollection, and I may be
wrong, I was old enough to be voting back in those days; I
don’t remember it like he said it. I remember school board
182
members were nominated and elected from the county at-
large with the trustees, they might have been elected at-
large but they were nominated, and after a while the
trustees went out and finally got around to the constitu
tion and it served a useful purpose.
A. I had been under the impression that those sub
districts were done away with in ‘47.
THE COURT: Well, I’ve forgotten just when they
were.
A. I thought that law did it and made the county the
school district from ‘47 on.
THE COURT: No, sir, I think it came a little later there
but they did get rid of them a little later in the change in
the new constitution, as I recall. I’m not sure. Go ahead.
MR. BLACKSHER: Yes, sir. In bringing copies of the
statutes we’ll try diligently to —
[62] THE COURT: Maybe at a recess or something
you all can look at the statutes and see what they were.
That will be fine, sir. Or let him look at them and then he
can be positive about it. But anyhow now we come on. We
came on up and in 1947 according to what we have we’re
getting, we’re nominating from districts but electing at-
large. Is that right?
A. MR. BLACKSHER: Until 1947, and then in 1947
at-large, both primary and general. The Minimum Foun
dation Act changed the district elections in the primaries
to at-large elections.
THE COURT: All right, sir.
183
DIRECT EXAMINATION RESUMED
BY MR. BLACKSHER:
Q. Dr. Shofner, I would like to ask you if in your ex
pert opinion, did the concept of white supremacy and dilu
tion of black voting strength play any part in the
reestablishment of at-large voting in the primary elections
for county commission and school board elections as you
have testified? A. I think so.
THE COURT: In the establishment of at-large elec
tions, you say?
A. Yes. Q. Would you explain yourself, please.
[63] A. Well, the local voting for representatives was
acceptable in the state down to the time that, here again
I’m speaking of the nominating process in the Democratic
primary, was acceptable until there was a threat to the
white primary. It was outlawed by the national court in 44
and by the State of Florida Supreme Court in ’45 and it s
been since that time that voter registration drives have
been inspired and resisted and it’s been during that time
that we changed back to at-large elections, that it has come
back in both the school board and county commission
level. Mr. Cash, the historian of the Democratic Party in
’36, talked about good government in terms of cleaning up
the electorate by keeping blacks out of it. I think that that
is more satisfactory to a person to say than to say, “Let s
disenfranchise blacks.” It’s just in the same case it was a
lot better to talk about protecting the rights of the states
versus incursion of federal Supreme Courts, say, about the
time of Earl Warren and the Brown decision in 1954 than
it was to talk about discrimination against certain
categories of people. And in that sense good government
meant a good many more things than just getting rid of
184
wards, as the people in Tampa were talking about, and
that sort of thing. Yes, I think there’s a correlation
between the opening up of the possibility of [63] blacks
voting in the electoral process, in that part of the electoral
process which counted, the Democratic primary, and these
changes.
MR. BLACKSHER: That’s all, Your Honor.
MR. CATON: Your Honor, would you prefer our cross
to be conducted here or at the podium?
THE COURT: Over at the podium, Mr. Caton. You’ll
always feel better standing on your feet when you address
the Court, Mr. Caton.
MR. CATON: Did the Court wish a recess now
THE COURT: I’m willing to take a short recess, I
thought maybe you want to finish the witness and recess
for lunch.
MR. CATON: If we could take a short recess.
THE COURT: You want a short recess?
MR. CATON: Yes, sir.
THE COURT: Court will be in recess for about ten
minutes.
(Recess)
(Open court)
THE COURT: Let’s see, who’s going to proceed? You
may proceed, Mr. Caton, on cross examination.
MR. BLACKSHER: Your Honor, before the cross ex
amination begins, and if you please, we have, as you in
structed, gone over the statutes, and Dr. Shofner has them
[65] in front of him if you would like to go over that point
on the school board.
185
THE COURT: Well, all right. Mr. Caton, let’s let him
finish up and put it right with you.
DIRECT EXAMINATION RESUMED
BY MR. BLACKSHER:
Q. Go ahead. A. The 1889 statute, I was correct on
that, it did refer to county boards of public instruction.
And —
Q. And they were appointed under that? A. They
were appointive, yes, and then the ’93.
Q. Who appointed them, by the way? I don’t think
that’s clear on the record, Dr. Shofner. Who does the
statute say appoints the Board of Public instruction in
1889? A. Shall be appointed by the State Superinten
dent of Public Instruction, State Board, no, I beg your
pardon, it’s the Governor. I know it’s the Governor
because there was a big battle in 1917 between the Gover
nor and the Superintendent of Public Instruction.
Q. What does that statute say? A. It doesn’t say.
Q. Okay.
THE COURT: We can look at the statute later. Go
[66] ahead and tell us the rest of it. Go ahead.
A. It’s not manifest.
THE COURT: All right.
A. Anyway it’s appointive, and the ’93 version still
refers to County Board of Public Instruction and makes
them elective. In ’95 —
Q. How are they elective in ’93? At-large?
A. At-large.
186
Q. At-large or from districts, Dr. Shofner? Would
you read it?
A. Well, yes. An Act to provide for the division of
counties —
THE COURT: I can look at it.
MR. BLACKSHER: Judge, it’s marked in there.
THE COURT: If that’s all law I could let you all get
together without taking his time afterwards, if that’s all
we’re doing. It says for the election of three trustees
therefor.
A. That’s the ’95 law. That’s the one you’re referring
to.
THE COURT: I guess so.
A. The ’93 Act is an Act to provide for election of
members of the County Boards of Public Instruction and
fix their compensation.
THE COURT: Which Act?
[67] A. That is ’93, and the ’95 one adds the trustees that
you’re talking about from the subdistricts.
MR. BLACKSHER: May I approach the bench, Your
Honor, and shortcut this?
THE COURT: Yes. I would like, we’re just talking
about those laws and you all have them here and we can
see what they say and don’t have to take his time trying to
fumble through and read those things.
MR. BLACKSHER: Would the Court permit to put in
the record what it shows so there won’t be any further con
sideration.
THE COURT: it will be fine. I’ll tell you what; I’ll let
you go to noon recess and you all get together and there
187
should be no problem and if you have a problem, come to
me with them and let me look at them. You all should be
able to agree on what the laws say without taking the
witness’s time.
MR. BLACKSHER: Thank you, sir.
THE COURT: Cross examination now, Mr. Caton?
MR. CATON: Yes, Your Honor.
CROSS EXAMINATION
BY MR. CATON:
Q. Dr. Shofner, could we clear up one point, please,
sir. Back in the late eighteen eighties, I guess it was, I
believe you stated that’s when blacks were [68] effectively
disenfranchised. Is that correct, sir.
A. Yes, that’s about right. The statutes that led to it
were 1889.
Q. Eighteen eighty-nine?
A. Yes, sir.
Q. So I believe there were some, also some provisions
in 1885, were there not, some provisions in that constitu
tion that provided for the methods of disenfranchisement?
A. Yes, sir.
THE COURT: Mr. Caton, since he gave us that
testimony it’s now stipulated, I think, by all people, that as
late as 1900 they were effectively disenfranchised.
MR. CATON: Yes, sir, I understand we stipulated that.
I was just trying to pin it down a little bit more, if I could,
Your Honor.
THE COURT: Well, all right, sir. I don’t know, with
that on the record I don’t know why you need to come
with any more, but go ahead.
188
A. The 1885 constitution provided the Legislature
power to enact a poll tax requirement as a precedent to
voting, and the 1889 Legislature did it.
Q. So would it be a fair statement then by the year
1889 that blacks were effectively disenfranchised?
A. Yes. The next statewide election suggests [69] that
that’s the case. Yes.
Q. So you would agree to the statement, I guess.
A. Yes.
Q. Could I ask you one question in general, please,
sir, getting back to your general method. You’re what we
call a historian and as I understand your answer to counsel
you not only report facts but make judgments yourself. Is
that correct?
A. Yes, sir.
Q. And what do you use to base your judgments
on? A. All the evidence you can find on the subject.
Q. And that includes newspaper articles as well as
books, periodicals, magazines?
A. Yes, yes. Government documents.
Q. What did you mean when you said oral
history? A. It has been, it has become a feature of
historical research in recent years. A man named Alan
Nevins of Columbia University set up an oral history proj
ect and it’s caught up all over the country now to, instead
of waiting till somebody is dead and then seeking out their
record, to interview people of importance and to get their
testimony on the record and then this material is handled
in, it’s a very intricate thing. It has to be edited and the
man goes back and approves or changes it and [70] he also
controls when it can be used and where and that kind of
thing. That’s what ora! history refers to. We’ve always, of
course —
189
THE COURT: I think you’ve answered the question,
Doctor.
A. Okay.
Q. So what we’re talking about is somebody will inter
view a person that has knowledge of certain facts?
A. Yes.
Q. And he will — he in turn write them down or pass
them along orally to the next man? A. I was speaking
of, directly to the former case. Interviews would be
recorded at the time and transcripts would be made.
Q. So it would be a written synopsis of what a man
said? A. Yes.
Q. And your newspapers, I believe you stated they’re a
major source of material in your research. How do you go
about that? Do you just check the newspaper files?
A. Yes.
Q. Of various newspapers? A. Yes. They’ve been
saved from the earlier period just about like everything
else, kind of spasmodically, [71] so we don’t have complete
runs of some and some have disappeared altogether, but
there has been a kind of a scattergun approach to saving
the materials and those that exist, yes, we just —
Q. So you can get what you can? A. You get what
you can, that’s correct, and if you’re looking for a specific
piece of material, of course you go to those dates, but I
was mainly referring to the fact that in most of my
research I’ve simply read the newspapers from beginning
to end to get a feel for the time and that kind of thing.
Q- How do you go about choosing which newspapers,
say the Tampa Tribune as opposed to the Jacksonville
Bugle? A. In that particular case it was easily available
190
and it was not a particularly debatable point. It was simply
direct reporting.
Q. As opposed to an opinion? A. Opposed to an
opinion or editorial or something of that nature.
Q. Do you also sometimes check editorials for opi
nions? A. Yes, sir.
Q. And what credence do you normally place in
them? A. It depends on what the issue is.
[72] Q. It depends on the issue? A. Sure. Newspapers,
like law and custom, interact with the body politic that
they serve. They instruct and they are instructed by.
Q. In your research do you fairly often run into these
editorial type opinions from newspapers? A. On the
editorial page indubitably.
Q. Do you find that the opinions sometimes vary from
one paper to the next depending on who’s writing the arti
cle? A. And also depending on the issue.
Q. Depending on the issue? A. On the particular
issue we have here, not very much dissent from white
newspapers.
Q. Do we not find quite often, though, that depending
on who’s writing the article you might have a different
opinion on the same issue? A. When?
Q. Well, you’ve done the research. You tell
me. A. Well, there’s a different answer depending on-
THE COURT: He’s already testified that there was pret
ty much unanimity.
Q. So your answer would be it depends on the
issue? A. Yes. There was common agreement among
191
newspaper editors, white newspaper editors, in this early
[73] period, about the necessity of white supremacy.
Q. Yes, sir, in the early period. Let’s say, for example,
we had a later period where maybe there was a little more
disagreement. Would you expect to find perhaps different
opinions from different newspaper editors depending on
who’s writing the editorial?
THE COURT: You’re asking him what he might expect
to find, sir? You’re going pretty far out on that, Mr.
Caton. Don’t answer that.
MR. CATON: Well, the man has testified he has done
research.
THE COURT: Yes, but you asked him what he might
expect to find on his approach to research.
MR. CATON: I asked him about a different issue than
the one he was particularly speaking to.
THE COURT: I’ve instructed him not to answer that
question.
Q. Okay, are you familiar at all with the change in the
electoral system made in the City of Pensacola in
1959? A. I have done no direct investigation of that.
I’ve heard about it from other people.
Q. I believe you stated that the change in the method
of electing school board members was in 1947 to make [74]
them at large. A. Yes, nominating process. The nom
inating process.
Q. Yes, sir, the primaries. A. We all make that
same mistake.
Q. We get confused. Did you or did you not state that
there was any correlation between that and the end of the
white primary in 1945? A. It certainly appears to be a
correlation. The Davis case was decided in 1945.
192
Q. There appears to be a correlation? A. And the
next legislative session was in 1947.
Q. This is something that you have studied and read
and you’ve formed an opinion which says it appears to
be? A. Yes.
THE COURT: Let me be sure about that, sir. From
your testimony 1 gathered or I assumed, at least, that your
opinion was based purely on that sequence of events and
nothing else. Is there some other basis for your
thought? A. Well, the entire framework of the mid-
nineteen forties in Florida and the South. You had Strom
Thurmond who broke away from the Democratic Party
because the [75] National Democratic Party included a plank
calling for a fair employment practices commission. At the
same time there was a difficulty in whether they would be
allowed to be considered a major party or not and
therefore get on the ballots in the states, and the
Legislature called itself or the Governor called it into ses
sion in September to provide for a specific inclusion of the
States Rights Party on the ballot in the state, among other
things.
CROSS EXAMINATION RESUMED
BY MR. CATON:
Q. So there are some generalities? A. Yes.
Q. Strom Thurmond from South Carolina and other
things happening around the country, and you felt this
may fall into that pattern? A. I think it’s a little bit
stronger than “may.” I think it did, and the Legislature
went to considerable effort to demonstrate that by allow
ing this particular party to get itself on the ballot so
Florida Democrats who didn’t wish to vote for Harry
Truman would have an opportunity to express their
thoughts.
193
Q, But you have no specific evidence other than your
own conjecture? A. Well, the evidence 1 have is the
calling of the [76] legislative session and what that
Legislature did. That’s what I meant by that.
Q. Was this a special session or a regular
session? A. That is a special session, September, 1948.
THE COURT: The Legislature had a special session in
1948? A. Yes, sir, they called themselves in because
under the election rules this States Rights Party didn’t
meet the standards necessary to get on the ballot and so
they went to some extra effort to get them on the ballot
that year.
THE COURT: Get who on the ballot?
A. Get the States Rights Party. It was commonly
called the Dixiecrats, but the States Rights Party, I think,
was the official title of it.
THE COURT: You’re not talking about - how is that
correlated to —
A. The correlation, sir, as I see it, sir, is this, another
example of Floridians favoring white government and
becoming disenchanted with the National Democratic Par
ty, the solid South to which Florida has aspired for nearly
a century as the white man’s party. Now the white man’s
party is beginning to talk about fair employment practices
commissions and antilynch [77] legislation which has been
introduced in the House of Representatives since at least
1921.
THE COURT: Doctor, you’re getting me a little con
fused. I thought you had said there was a correlation bet
ween the decision in 1945 and the 1947 change in the
Florida Statutes and part of that reason for that was the
special session. Yet you say the special session was after
that.
194
A. The attorney asked me, though, if I made my opin
ion on the simple basis on the fact that Davis occurred in
1945, and the Minimum Foundation Law changed the
nominating process to at-large, and I said there was more
to it and this is the kind of thing.
THE COURT: The sequence we’re talking about, these
decisions or whatever it was came out in 1945, you said.
A. Yes, that was the Supreme Court.
THE COURT: Then in 1947 the Legislature changed it
to an at-large? Is that what you’re saying?
A. Yes.
THE COURT: But you also said something about a
special session.
A. The next year.
THE COURT: In what year was that?
A. Forty-eight.
[78] THE COURT: All right.
A. That’s what I meant. It’s collateral. That’s what
you were asking, was there any collateral information.
CROSS EXAMINATION RESUMED
BY MR. CATON:
Q. You made a statement when Mr. Blacksher was ex
amining you that around in the nineteen hundreds there
were some more changes such that the Republican Party
was no longer a threat to the Democrats. Would you
elaborate on that again for me. A. W e l l , a s blacks were
disenfranchised there was no body of support for the
Republican Party. There were a few hundred white
Republicans in the state. The largest enclaves of them were
195
in Duval County and in Orange County. Orange had been
populated by much more recent immigration and had a lit
tle nucleus of a Republican Party there, and Duval had
one from, existing since the post-Civil War period, but
basically the Republican Party was supported by black
voters.
Q. Yes, sir. A. And when the black voters were
prevented from voting, that’s what I meant.
Q. Well, when did this become a threat subsequent to
that time? A. There are people who would argue that
they [79] haven’t.
Q. Which people would argue that they haven’t?
A. The people who’ve been looking at the Legislature
and counting how their numbers have gone down since
1967’s high point. The 1928 election brought about an
aberration, I think, in national, but certainly in Florida
politics, because the Democratic Party, the Democratic
Party voters in Florida were being asked to vote for a man
named. A1 Smith who didn’t look much like their kind of
man and they voted for Herbert Hoover, who didn’t
either, but he looked more like it than A1 Smith, and ex
cept for that particular aberration in which no county, so
far as I know, went for the Republicans by a majority, but
where the Republican vote was increased considerably, ex
cept for that 1928 aberration the Republican Party has not
become a major threat in a statewide election until, of
course, Claude Kirk pulled off that 1966 event.
Q. So if they weren’t a threat after early 1900 there
was no need to pass any laws to continue to have that ef
fect since there was no problem involved? A. No,
that’s what allowed the district election to be so conve
nient. You have local control.
196
Q. Your answer was no, that there was no need to?
I’m sorry. [80] A. I said that’s right, they didn’t have to
worry about an opposition party.
Q. Yes, sir. Okay, could I ask you concerning some of
your testimony regarding lynchings and other violence. I
believe you said this was legalized, the legalization of a
custom. Could you tell me which laws and other legisla
tion made these lynchings and violence legal? A. There
was no law saying it was all right for one man to lynch
another.
Q. What do you mean by this? A. I mean by 1915,
beginning about 1895, a series of laws collectively called
Jim Crow Laws, that’s a fairly common term in our socie
ty and my profession, dealing on the one side with punish
ment for people who participated in integrated schools, to
the forbidding of sheriffs and others handling prisoners
from handcuffing blacks and whites in the same handcuffs
to, in that 1907 session —
Q. What does this have to do with making lynchings
legal? A. It had to do with it in that it left blacks com
pletely separated from white society, whites and blacks in
that state except in a master servant relationship could live
out their lives without ever coming into contact with each
other, and the state officials condoned [81] without law
the lynchings.
Q. I think we’re all aware that even the Supreme Court
said separate but equal in the schools was legal. What I’m
getting at is not that, but you, maybe I’m wrong, maybe I
wrote this down wrong, but I understood you to say that
these lunchings and other violence that Mr. Blacksher was
asking you about, you said this was the custom that
became legal.
197
THE COURT: No, sir, he didn’t say that. A. That’s
not what I said.
Q. Weil, I apologize.
THE COURT: He said it was condoned.
A. I had given the one example of Mr. Catts. I could
give you several dozen more.
THE COURT: You’ve already gone over that pretty
well for us. Go ahead, Mr. Caton.
Q. Could you again tell me what period of time your
research covers mainly? A. My most extensive work
has been in the period, the last fifty years of the nineteenth
and first twenty of the twentieth century.
Q. So through about 1920? A. Eighteen fifty to
nineteen twenty. I’ve done an lawful lot of reading before
and after that but that’s the area that I have done my
publishing in mostly.
[82] Q. Has any of this research been specifically in
the City of Pensacola or Escambia County? A. Not for
that reason, but of course I have read the Pensacola —
Q. Not for the reasons that you’ve testified?
A. No not for the reason of finding any specifically, in
Pensacola and Escambia County, but Pensacola was a
very prominent city in Florida during that period.
Q. We hope so. A. Right. It was. And of course
the newspapers here and the shipping registers.
Q- I believe you did some research with black
stevedores. A. Yes. That I ran onto when I was work-
lng on my Reconstruction book and also the lumber in
dustry; I’ve done considerable work just on the lumber in
dustry itself and they sort of crossed there in 1873 when —
198
Q. But that’s, excuse me, that’s pretty much the extent
of your research done in Pensacola and Escambia County,
is with relationship to black stevedores and lumberjacks?
A. That kind of thing, but as incident to broader
research.
Q. As incident to what broader research in [83] Pen
sacola and Escambia County? A. In the State of Florida,
of which Pensacola is a contingent part.
Q. So the answer to my question as far as Pensacola
and Escambia County is concerned, the extent of your
research has been with some black stevedores and Cana
dian lumberjacks? The rest of your research has been in
other areas? A. No, that is not true. There are others.
Q. Tell me about it. A. I can tell about Stephen R.
Mallory, the Secretary of the Confederate Navy, who lived
here and fought a duel with Mr. William Kirk, a
newspaper editor, over some racial matters. Mr. Kirk
chickened out so it didn’t come about, but other things like
that.
THE COURT: You don’t have any other evidence of
dilution in Escambia County other than what you’ve
testified? A. That’s right.
THE COURT: That covers it for you generally, doesn’t
it, Mr. Caton?
Q. Okay, thank you. was there ever any literacy test in
Florida for the purpose of disenfranchising blacks to your
knowledge? A. I don’t think so. The closest they came
was [84] the eight ballot box law which required a person
to be able to read in order to cast his ballot but I’m not
aware of a direct test like the Mississippi one.
Q. The eight ballot box law, you had to put your
199
ballot in the right box for the right candidate? A. Which
might be inferentially a literacy test.
Q. When did that go out? A. Well, it was rendered
kind of nugtory by the Australian ballot in 1895.
Q. The secret ballot? A. They went to the secret
ballot, yes.
Q. That was put in, in 1895? A. Yes, The reason
the eight ballot box law was no longer significant then was
because the state began had printed their own ballots.
Q. Is it your opinion that the Australian ballot had
any racial purpose behind it? A. I wouldn’t think so. It
didn’t matter by that time, by 1895.
Q. Because by 1895 the blacks had already been effec
tively disenfranchised? A. Yes. We had good govern
ment then.
Q. Yes, sir. The poll tax, I believe you stated, was in
effect from 1889 to 1937? [85] A. Yes, sir.
Q. Now, did that apply to a city election or county and
school board or all of them or do you know? A. You
mean the ending if it?
THE COURT: No.
A. It applied to registration for voting all the way.
Q. City as well as county? A. Yes.
Q. Could you be mistaken on that? A. Yes, 1 could
always be mistaken.
Q. Was there a possibility that there may have been
some other motives for the Legislature enacting these laws
that you’ve referred to in the past, such as good govern
ment and business, anticorruption or other similar
motives? A. Yes, sir. Rarely are you going to see a
200
group of, as of now a hundred nineteen men, pursuing
identical motives. That’s the nature of our process. Fifty
percent plus one is what it takes in both houses and that
usually takes some back scratching and very often you
find multiple motives.
Q. Would you say it was a fair statement that these
factors were substantially motivating factors in some,
some or all of this legislation?
[86] THE COURT: What factors?
Q. The factors I just listed, good government,
business, anticorruption or other similar type of motives.
A. There’s no doubt by that there were people who were
interested in good government and many, many -
Q. Is the answer to my question yes or no? A. It’s,
“yes but.”
Q. It’s, “Yes but.” Okay, now, go ahead. A. The
but is that many people until very recent years have
equated good government and white voting, and I would
suggest that that leading history of the Democratic Party
by Cash in ’36 would be a case in point where he makes it
quite clear that that was that there was a correlation be
tween the whites only voting and good government.
Q. These devices such as the eight ballot box, etcetera,
was there any significant white opposition to these laws
that were passed? Was there debate? A. Not much in
Florida. There was a dispute in the 1885 constitutional
convention over a thing called the McCaskill Amendment
where some people in Florida wanted to go further than
just a poll tax and make criminal misdemeanor types, that
kind of thing -
Q. Are you saying it was not significant? [87] A.
It was not significant in that a majority of the convention
201
thought that this was not necessary and they didn’t pass
the McCaskill Amendment .
Q. Okay, if I could, Dr. Shofner, you do recall back
on March the 2nd when we took your deposition at Mr.
Ray’s office? A. Yes.
Q. If 1 could, let me read a couple of questions and
answers to you, and if you would, tell me whether or not
you made those statements. Question. “Are you aware of
any significant —
MR. BLACKSHER: May it please the Court, would
counsel, give us the page and line number.
MR. CATON: Page 54, line 18.
MR. BLACKSHER: Would the Court allow me to give
the witness his deposition so he could read this?
THE COURT: He’s going to read it to him.
Q. I’m going to read it to him. “Are you aware of any
significant and influential white opposition to these
devices that we have talked about?” Answer, “There was
some.” Question, “Would you categorize this as signifi
cant?” Answer, “Yes.” A. Now, what devices are you
talking about?
Q. The same ones that we’ve been talking about all
morning. [88] A. I don’t believe now that the context
of those two questions, you know, in English grammar we
have this faulty antecedent thing and I’m not sure our
antecedents are correct there.
THE COURT: Mr. Caton, it was not clear to me that
that was exactly the point we’re talking about either.
MR. CATON: Okay.
THE COURT: If you want to go back into that deposi
tion.
202
A. I’m reading the deposition for correction now and
I’m to page 46 so I couldn’t really attest to it.
Q. Let’s go to a couple of questions prior to that. “Are
you aware of any of them who in debate supported the
Answer, “They participated vigorously in the debate but
the poll tax thing — ” Question, “Yes.” Answer, “I’m not
aware. I don’t think they did.” And then some other ques
tions, so we’re talking about the same type of devices.
A. Yes, it sounds like agreement to me.
Q. You seem to have stated then there was some
signficant white opposition. A. Okay, now you’re talk
ing about that, a period a little bit beyond that when, and I
believe this was Mr. Ray’s questioning, he was talking
about the Populists, who really hadn’t gotten on the map
by 1889, although they were pushing in the wings pretty
[89] hard, and there were some Populist type white peo
ple who, I don’t know that they were opposed to the poll
tax but they differed from the Democratic majority in the
state and they did protest but they didn’t amount to much.
By 1896 they were all gone.
THE COURT: All right, you want to go ahead, Mr.
Caton.
Q. Well, you’re saying now that there was no signifi
cant white opposition, is that correct? A. To poll tax
vote requirement?
Q. To poll tax, eight ballot box.
THE COURT: Significant white opposition, you say?
MR. CATON: That’s correct, your Honor.
THE COURT: Is that what you want to know?
A. That’s what I am saying.
Q. Was there any black support of these types of
devices? A. Not that I’m aware of, not much anyway.
203
Q. Reverend Kershaw? A. Joe Lang Kershaw,
which is erroneous in the deposition —
Q. If you could, I realize that you know a lot about
these things. If we could shorten the answers a little bit,
did he support them? [90] A. Well, you can’t always
give short answers to those long questions.
Q. I think it’s a pretty short question. A. That’s the
kind of questions I use to get the kids to do a lot of
writing.
THE COURT: Doctor, he wanted to know, he asked
you a specific question, did so and so support this poll tax.
You can answer that. A. I do not know whether he did
or not.
THE COURT: Then that’s all we need to answer that
question.
Q. Okay, you don’t know.
THE COURT: That’s what he says. Go ahead.
Q. This phenomenon of at-large elections versus
district elections, when did it enter into Florida politics in
the primary, I believe in the primary, you said, 1947 for
school boards and counties? A. You mean the change
from district nominating to at-large nominating?
Q. Yes, sir. A. Forty-seven with respect to the
school board, fifty-four on the commissioners.
Q. How about in the rest of the country? Do we have
this same phenomenon going on or do we have district
elections, at-large elections? [91] A. It varies.
Q- It varies. So we may have in 1947 a state, New
Hampshire, that would be going to an at-large election
and Massachusetts may be going to a district
election? A. It’s perfectly possible.
204
Q. How about the change in basic forms of govern
ment such as the commission and city manager form of
government as they relate to Pensacola and Escambia
County? Are you familiar with that? A. All I know is
that the first county, city commission form of govern
ment, was enacted in Green Cove Springs in about 1913,
Consequent to this particular form beginning in
Galveston, Texas, about 1900 or 1901, and generally being
a fad for reform in city government until the city manager
system became a new fad in about 1917.
Q. Do you know what the purpose of the city manager
form was? A. I know what it was stated to be, yes. The
city manager —
Q. Isn’t that what most of your testimony is, what
somebody else has stated? A. Yes.
Q. Okay. Well, let’s go ahead and continue then,
please. [92] Well, I was intending to.
Q. Okay. A. That is what I was going to do until
you stopped me, and your question was did I know what
was involved in the city manager system.
Q. Yes. A. Okay, apparently the city government
of Galveston broke down in 1900 when a huge flood oc
curred so they decided -
THE COURT: Is that what you want him to tell us
about?
Q. Not the total history, just the purpose of the city
manager form of government. What was the reason for
changing from one form to another? A. It’s not going
to make much sense but the idea was the commissioners
having been specialists in their respective fields, sewage,
what have you, didn’t, it didn’t work out too well. The
combination of political know-how and expert knowledge
205
in specific areas was frowned upon and the city manager
idea was one where you have an appointed executive who
can be the specialist in city government and the commis
sioners can be or council members can be whatever.
THE COURT: Set the policy? A. Right, be the
legislative —
[93] THE COURT: That was the reason or the answer
for it along the way?
A. Yes, sir.
THE COURT: That would have nothing to do with
race, would it? A. No, sir.
Q. Do you think that form of government has
anything at all or any correlation to do with an at-large
election or district election? A. I confess I just don’t
know.
Q. Dr. Shofner, would you agree with me that this
regional and national histories that you’ve given us,
histories of politics and voting laws, would you agree that
they include many broad generalities, complexities and
abstractions that might not apply to any particular com
munity? A. I’m not at all sure I understand that.
MR BLACKSHER: Your Honor, I object to the ques
tion unless we identify what specific part of his testimony
he’s talking about, since part of his testimony was directed
to the State of Florida’s policy.
THE COURT: I can always hear you better when you
talk if you stand up.
MR BLACKSHER: Excuse me.
THE COURT: He was not asking him anything from
[94] his deposition. He was asking him a question, but it
was such a general question I’m not sure. Did you under
stand the question, sir?
206
A. No, and I’d have to take issue with what an
abstraction and generality, that kind of thing, is.
THE COURT: Repeat the question for us one more
time if you feel the need to pursue it, Mr. Caton.
Q. Yes, sir. My question was would you agree that the
histories that you’ve given us of politics regarding regions
such as Florida or national, or areas such as the South,
this type of history, does it not have a lot of generalities in
it and complexities in it that, such that this general
philosophy or whatever the trend is might not apply to a
given smaller community such as Pensacola or Escambia
County? A. Well, that would be true of anything
besides a simple direct declarative sentence.
Q. The question is not of anything but of what you’ve
been studying. A. But not only was Pensacola a part of
the State of Florida, Pensacola and Escambia County-
Q. Could you answer my question, please, sir. A. I
am answering your question.
Q. Could you answer it yes or no and then
expound? A. That question does not have a yes or no
answer.
[95] THE COURT: Mr. Caton, let him go ahead. He’s
using the approach of, “Yes, with this explanation,” and
trying to do that.
A. It’s not that simple. What I was going to say is not
only was Pensacola and Escambia County part of Florida
but was a leading part and I can, Senator John Beard and
his Representative colleague, R. P. Reese, were the in
itiators of many bills, separate streetcars, separate waiting
facilities, separate rest rooms, which came up in the 1907
session right along with the —
Q. I think we’re getting a little off the track. A. I’01
sorry. That was the way I understood your question. You
207
said could there be something, a generalization about the
South.
THE COURT: Mr. Caton, let’s let him try. I thought
you asked him about that way back there too. Try it again,
Mr. Caton, if you feel there’s something you want him to
pursue. What is it you want him to tell you?
Q. What I want to know, Doctor, you’ve given us,
you’ve told us you haven’t studied Pensacola and Escam
bia County. A. No, I have not.
Q. You studied the State of Florida, and Pensacola
and Escambia County are part of the State of Florida, we
[96] certainly agree with you there. Pensacola and
Escambia County is also part of the South, so to speak,
although of course there are some other questions. My
question to you is the general trends, philosophies,
whatever, concerning government that you’ve given, that
concern an area of a regional area, do they necessarily ap
ply to all of the cities within that region, and counties?
You give an example of Jacksonville in your deposition
that you said was different. A. Yes, I realize and I
thought I was going to get an opportunity to explain that,
but of course you have the right to stop asking questions
and you did. Pensacola was, and I’ve done enough reading
in the literature about this town and this county to say
this, was very much a part of Florida and the South and
was not inconsistent with the generalizations that we’ve
discussed here today regarding racial patterns.
Q. Pensacola and Escambia County were not inconsis
tent? A. They were right in the mainstream.
Q- Yes, sir. How can you state that when you haven’t
done any study of Pensacola? A. Because I didn’t say
that I have not done any studying here. I said I had never
208
pursued a topic that dealt directly with this local area par
ticularly. I have [97] read the P ensaco la Jo u rn a l and the
Pensacola N ew s, the P ensaco la O bserver, all of which
are nineteenth century newspapers, and we have con
siderable runs of them. I’ve read even some documents,
the National Archives is filled because of the naval facility
being here, filled with all kinds of information. The
Department of Justice, for example, and from the Naval
Shipping Board and all these things.
Q. These were things in addition that you’ve done that
you didn t tell us about a little while ago? A. I thought
I had but I guess I hadn’t. I didn’t pursue it.
THE COURT: You’ve answered his question, Doctor.
Go ahead, Mr. Caton.
MR. CATON: Your Honor, there’s a few more ques
tions that I think it would be more appropriate for the at
torneys for the county and the school board to continue at
this point.
THE COURT: You mean you want to come — oh,
you’re finished
MR. CATON: Yes, Your Honor.
THE COURT: All right, who’s next?
CROSS EXAMINATION
BY MR. LOTT:
Q. Dr. Shofner, I represent the county commissioners
[98] and I would like, if we could, to confine your
testimony at this point about the questions I’m going to
ask to the county commission form of government in
Escambia County, and I believe from my notes your
testimony was to the effect Mr. Blacksher asked you
209
whether or not the changes from single-member districts in
the nominating process to at-large nominating process for
the Democratic primary after 1945 was in any way racially
motivated, and my recollection is your testimony was,
“Yes, it was.” Is that basically correct as to the county
commission? A. That’s basically correct as to county
commission. If you accept my other proposition that it
was not the only cause.
Q. Okay, recognizing that it was not the only cause I
would like to go into some detail as to the background in
formation that gives you the basis for your opinion.
A. The background information to it, sir, is everything
that I’ve said this morning.
Q. Well, in 1945 the courts knocked out the white
primary. Now, what, events after that lead you to con
clude in any way that the change in county commission
method of election was racially motivated?
THE COURT: Other than that, now? Is that what you
mean?
[99] A. Other that what?
THE COURT: He said after that time, what, if any
events after that.
Q- After 1945 what, if anything, leads you to —
A. The entire pattern of resistance to black registra
tion, the assassination of Harry Moore.
THE COURT: After 1945?
A. Yes, sir.
THE COURT: Nineteen forty-seven?
A. That was ’51 when that happened.
THE COURT: Well, the county commissioner thing
was 1947?
210
MR. LOTT: No, sir, it was 1954.
THE COURT: 1 see.
A. And the Dixiecrat movement, the resistance to the
Brown decision, the entire pattern of behavior.
Q. In other words the fact that there was racial
segregation in the South leads you to conclude that
anything that in your opinion disadvantages blacks was
done for racial motive? Is that what you’re saying?
A. No, I’m not saying that.
Q. Would you clarify it for me then?
A. I’m saying than when the 1954 decision was handed
down that there was considerable indication that with the
outlawing of the white primary a decade earlier [100] the
white primary might not be as, I mean the idea, the
prevention of blacks from participating in the election that
counted, the democratic primary, might not be as perti
nent.
THE COURT: Was this change in 1954 before or after
the primary decision?
A. What?
THE COURT: The change in county commissioners’
districts in 1954, did it come about before or after the
Brown decision?
A. The Brown decision, it was all about the same time.
THE COURT: That is the decision we’re talking about,
isn’t it?
A. Right. And as a matter of fact this was three or
four months before.
THE COURT: This change?
211
A. Yes, I think February.
THE COURT: Well, then obviously it couldn’t have
been affected by the brown decision, could it, in making
that change?
A. No, sir, but the kind of thing that caused a reaction
to the Brown decision, it could have been affected by it.
THE COURT: How can it be reaction to the Brown
[101] decision when the Brown decision had not been an
nounced?
A. That’s not exactly what I’m saying.
THE COURT: I don’t understand.
A. The man asked me if I recall why I was saying that
race had something to do with the reduction or the change
in the election from districts to at-large in 1954, and my
answer was the entire pattern of Southern, Florida, white
response to these kinds of changes, including resistance to
voter registration, which was before; including the kind of
action that attempted to allay the attorney general’s
report, to allay the implementation of the Brown decision,
yes, it came afterwards but it came within the same con
text. That’s all I’m saying.
Q. What is the basis of your determination that it
came in the same context? In other words how can we tell
that the change in the county commission election pro
cedure in 1954 was in any way connected with other events
that were happening in the country at the time? Have you
wade any independent inquiry into that? A. Into
what?
Q- Into whether or not the county commission change
ln form of government in ’54 was in any way related to the
other events that might have been happening in the coun
212
try at that time. [102] A. That’s all I do. If you’re talking
about some kind of statistical study, I’ve not done that.
Q. Well, have you made any historical study?
A. Sure.
Q. As to the 1954 change in the method of electing
county commissioners? A. I’ve read the same kind of
sources that I always read and it suggests to me that whites
who were in control —
THE COURT: I don’t believe he’s understanding your
question. He wants to know if you’ve made a study, I
think this is what you’re trying to, Mr. Lott, to determine
whether there were any other motivations other than
race. A. Well, there were.
Q. No, sir. No, sir, what I’m trying to find out is
whether the witness has made any historical inquiry into
the particular facts surrounding the change in county
government from districtwide, from single-member
districts to at-large nomination of county commissioners
in ’54. Have you made any historical study of that?
A. Because of that and the other things going on around
us at that time I’ve read considerably in the public record,
newspaper, public documents, the Journal of the House
and Senate.
[103] THE COURT: You don’t seem to be getting very
far here.
A. No, I can’t pin this down and I don’t think it’s fair
to ask this because the general climate of opinion, the
responses to it, are what I’m here for, and to that -
THE COURT: Well, you talked about other things
motivating. What other things motivated this change in
1954 that you know of?
213
A. There were some people who thought that the ward
system had become reprehensible in a couple of com
munities, and 1 think this one, but I’m more informed on
Hillsborough County where you have a much more com
plex ethnic group there. And that’s the kind of thing I was
referring to. And twenty-nine counties had already gone to
at-large by special legislation by this time.
Q. What was the motivation for those twenty-nine
counties? A. Different things.
Q. Were they related to implementing what would be
considered good government, progressive type change in
government? A. If you accept good government, pro
gressive type, as the way I define it here, yes.
Q. Are you aware of the particular way in which
[104] Escambia County’s type of nomination was
changed? A. I’ve read the transcript.
Q. How was it accomplished? A. It had to do with
a member of the commission who apparently didn t like
the way the voting was going on the commission and she
had instituted suit to broaden the franchise to at-large on
the grounds of good government.
Q. An individual county commissioner, are you say
ing, or an individual citizen? A. I was under the im
pression she was a county commissioner but it may have
been a citizen.
Q. But someone brought a suit, and what was the
disposition of the suit? A. It was, her contention was
upheld that the 1907 law providing for district selection of
party nominees was unconstitutional in that it conflicted
with the 1900 constitutional amendment and this was
upheld in an amazingly short time by the Supreme Court.
THE COURT: This was a suit just before 1954? Not
214
that suit you’re talking about earlier? This was another
suit? A. I think it started in ’53 and it was decided in
February, ’54.
THE COURT: I suppose you all know about that.
[105] A. I believe that’s the one you’re talking about,
Ervin vs. Richardson, I assume.
Q. Wasn’t that suit the direct moving factor that
caused the change in the county commissioners’
nominating procedure in Escambia County? A. I
suspect it was.
Q. It was as a result of that suit and the orders entered
by the court in that suit that the county commissioners
were changed from a district to at-large election system, is
that right? Is it your contention that suit was racially
motivated? Do you have an opinion whether that suit was
racially motivated? A. I think the point is that it did
not upset the desires of the people who were in control in
the county at that particular time. I think that, however,
whether or not it was initiated for this reason, it served
them very well.
Q. But you don’t have any evidence to form an opi
nion it was racially motivated in its initiation, is that cor
rect? A. I have, as I’ve stated several times, extensive
information.
Q. Excuse me.? A. I have extensive information
that that is the kind of society in which this state lived in
the middle nineteen fifties.
[106] THE COURT: Yes, sir, but his point is that we
may have had that kind of society but he’s talking about
the specific suit, whether it was or was not related to racial
motivation.?
A. Directly, that’s right.
215
THE COURT: So it was not there, and to follow you on
that thing, everything was racially motivated, therefore
everything is racial, but all you’re saying in the particular
thing, as I gather, is that it was not in fact racially
motivated.
A. Not instigated, no, sir.
THE COURT: As far as the people in power were con
cerned it was all right because they wanted a court decision
to comply and that’s all they were doing.
A. That’s right.
THE COURT: In that particular change. That’s what
you’re saying really.
A. That’s what I’ve been trying to say.
THE COURT: It sure took us a long time to get to it,
Doctor. I didn’t understand your testimony in that respect
before but I do understand it now. You said this particular
thing was not motivated, we had a general climate going to
everything.
A. Yes.
[107] THE COURT: But this particular thing, going
from single to at-large, had no racial overtones other than
what we had already here, I gather is what you’re telling
me.
A. Yes, that’s right. However, the field in which I am
is not an adversary one and I realize we’ve got to narrow it
down in here in order to —
THE COURT: All I’m saying to you, Doctor, if we had
the racial climate and we had singie-member districts
before then, then that was racially motivated?
A. Yes, sir.
216
THE COURT: And if we had the other change you’re
saying it’s racially motivated and I can’t follow that.
A. I’m not saying racially motivated. I’m saying it cer
tainly was consistent with the kind of protections these
people were seeking.
THE COURT: Equally so you tell me really what was
involved there was a court decision and that’s all.
A. I said that earlier.
THE COURT: I think I understand. Go ahead.
CROSS EXAMINATION RESUMED
BY MR. LOTT:
Q. Dr. Shofner, are you familiar with what the duties
of county commissioners were during the period, say,
after the 1885 constitution and up through .1905, 1910?
A. Yes.
[108] Q. What were those duties? A. They ran
the county. They were the legislative and executive depart
ments of the county government. You want specifics?
Q. Well, if you could give them to me. A. Well, I
can give you some, I think. They controlled the election
machinery. They decided where the precincts were. They
staffed the precincts with personnel at election times.
They, with some assistance from road districts, they main
tained the roads in the counties.
Q. Was that a principal concern of the county com
missioners in the 1900 era? A. Roads?
Q. Roads. A. Yes, except they divided the county
up into road districts which conformed usually with the
old militia beats and the road supervisors in the districts
actually did the work but they came before the county
217
commission for approval of county roads and all of that,
and of course the end of the period you included there, I
think you said 1910 or so, didn’t you?
Q. Yes, sir. A. The county commissioners in some
counties, [109] this happened at different times in dif
ferent counties, were beginning to take over road crews
•’d establish, buy mules, this kind of thing, so roads were
.coming a major consideration. At the beginning of the
dates you specified it was a law in Florida and the county
commissioners enforced this, that —
THE COURT: I believe, I think he’s gone beyond your
question, has he not, sir, or is this what you want?
MR. LOTT: No, I think he’s fixing to get into what I’m
asking about. I’m sorry.
THE COURT: Go ahead.
A. I’m just having to kind of search and find out.
They had come in this regard from a requirement that
everybody in the state put eight days on the road to a posi
tion of taxing for roads and began to go into the business
of roads. They handled the county poor farm. Some coun
ties established poor farm where they put indigents. They
didn’t do much about it but they were in charge of people
who were mentally deranged and sometimes they sent
them out, they would say, “This guy looks like a good
fellow to take care of a fellow who’s mentally ill so we’ll
Pay you three dollars a month or eight dollars a month,”
or whatever, that kind of thing. There was a county dole
and still is in some counties here where indigent people got
a few bucks from the county right along. [110] So those
are the kinds of things they did.
Q- Okay, are you familiar with the duties of county
commissioners in Escambia County today or since — A.
Just in a general way, that’s all, yes.
218
Q. Would you say the duties have changed substan
tially? A. No, I think society has changed substantially
and of course we now look to government for more things
and of course the county commissioners do a lot more
things but that’s not so much because their duties have
changed; it’s because the needs of the society we exist in
has changed.
Q. Would you say that the duties performed by the
county commissioners in a Florida county today, par
ticularly Escambia County, are substantially different
than they were in 1895 to 1900, 1905? A. Yes.
Q. In character? A. No, not in character, but
they’re different in that, good Lord, the budgets they
handle now as opposed to then.
Q. But they’re providing the same kinds of
services? A. The same kinds of services, not the same
services. Now, I’m not saying that.
[Ill] MR. LOTT: That’s all the question I have. I
think Mr. Ray has a couple questions.
THE COURT: How long will you be, Mr. Ray?
MR. RAY: Just a few minutes, Your Honor.
THE COURT: Go ahead with your cross examination
before we take a lunch break.
CROSS EXAMINATION
BY MR. RAY:
Q. Dr. Shofner, my name is Lou Ray and I represent
the school board. I have a few questions to ask you about
your testimony concerning the school board. First of all
am I correct that you testified by 1889 blacks in the State
of Florida had effectively been disenfranchised?
219
A. No, I said that the legislation which led to effective
disenfranchisement was enacted in 1889. Of course —
Q. So the following election — A. Yes.
Q. Evidenced to you that they had been? A. Yes.
Q. Disenfranchised by that time? A. In con
siderable numbers.
Q. And that following election took place in what
year? [112] Ninety, 1890.
Q. If that’s the case, on what facts do you rely to, for
your opinion that the 1893 change in the school law was
racially motivated? A. It’s the reverse of that, actually.
By 1893, there being less likelihood of an actual contest
for office, this likelihood had been removed, and the peo
ple who sat in the Legislature in 1893 felt free to go ahead
and make it democratic.
Q. So there was no racial motivation, no racially
discriminatory purpose attendant to the 1893 law in your
opinion? A. That’s right, but that doesn’t leave a true
picture of what I’m saying.
Q. You’re giving the reverse side of the coin, aren’t
you? A. Yes, sir.
Q. But the answer to my question — A. Yes.
Q. That there were no racially discriminatory purpose
»n the 1893 law is correct? A. That’s why the appoin
tive provision of 1889 which protected against that threat
was removed in 1893., It was possible to remove it in
1893.
Q- By the same token the 1895 law changing the
[113] school law in 1895, there was no racially
discriminatory purpose attendant to its adoption either,
Was there, Dr. Shofner? A. No, but the law just before
220
that, in the session laws of 1895, the one that precedes it
providing for punishment for anyone who operated an in
tegrated school, seems to be. Those laws passed one and
two in order.
Q. Let me direct your attention to the laws I want you
to address yourself to. I’m talking about the laws that
changed the form of government in 1893 and 1885.
MR. BLACKSHER: Objection, Your Honor. There’s
no evidence that there was any change in the form of
government in 1895, and well straighten that out at recess.
THE COURT: Mr. Ray, on my notes I wonder what
you’re talking about. I see no relevance.
A. You mean the provisions for subdistricts? Is that
what you’re talking about?
Q. I’m talking about the laws changing the election
method.
A. That’s where they allowed the local districts below
counties to come in.
MR. BLACKSHER: The trustees.
A. Yes, but he ’93 and ’95, I’d be willing to [114] say
the same thing stood behind one that did the other.
Q. So, okay, in ’93 and ’95 you’re willing to say there
was no racially discriminatory purpose attendant to the
enactment of those laws?
A. Because there was no need for it.
THE COURT: Because there was no need for it.
Q. All right, am I correct it was your testimony there
was not another change in the laws with regard to school
boards specifically until 1947? A. Nineteen hundred
seven.
221
Q. Nineteen hundred seven. What happened
then? A. That’s when they went to district elections of
the County Board of Public Instruction.
Q. Okay, and then the next change after
that? A. That system was continued in a major revi
sion of the school laws in 1939 and then the next change
with regard to what we’re talking about was ’47.
Q. That’s what I mean, the only change.? A. Yes.
Q. Between ’07 and the present was ’47? A. Yes.
Q. Are you familiar with the Minimum Foundation
Program as that law has come to be known? A. Well,
I’m not as familiar with it as that [115] professor from Flor
ida, Mr. Johns, who wrote it, but I’m generally familiar
with it. I’m generally familiar with the fact it was never
fully implemented and that kind of thing but there’s a lot
about it I don’t know. It was a very large law.
Q. Have you read it? A. Good Lord, not all of it.
Q. Do you know — I believe you testified that you
considered it to be a major overhaul in the system of state
financing of public schools. A. Well —
Q. And general school law, did you not? A. I did.
It was really kind of an aside but, yes, I think it was
because the school population of Florida had literally ex
ploded in the four or five years just prior to that and there
was a, the earlier Legislature had gotten through because
there was surplus funds left over from World War II but
there was a tremendous need to do something about addi
tional kinds of funding for the school system and the idea
was undertaken by the state that the responsibility was
assumed by the state to provide a minimum foundation in
that poor counties would be given the kind of aid that was
necessary to maintain a certain level of funding. That was
the general idea.
222
[116] Q. What sources, if any, have you consulted to
learn about the Minimum Foundation Program and its
history and its derivation? A. Well, I’ve read that
citizens report that was presented to the Legislature just
before that and I’ve read in and out of the law. I just simp
ly have never sat down and started at line one and read it
through.
Q. Do you know how long the Minimum Foundation
Program as it is known now was on the drawing boards
prior to its enactment in 1947? A. No, I really don’t.
Q. Do you know how long the problems that the
Minimum Foundation Program attempted to address were
existent in this state, how long before the enactment of the
law? A. Well, I suspect they’d always been here since
the state assumed responsibility for public education.
There was a major amendment in 1926 that put the state in
the business of general funding and I think that was about
the next major change since 1926 that I’m aware.
Q. We always had the problems, I would agree with
you, Dr. Shofner, but I mean the accentuation of these
problems, the exploding population. A. I had just been
given to understand from what I had read and heard that
the tremendous increase in [117] immigration into the state
consequent to World War II and the fact that the last
governor before the war, Fred P. Cone, who cam
paigned on a premise which a lot of people would, I’m
sure, like to see, “Let’s see how much money we have and
then make our appropriations on that basis rather than
deciding how much we need and going to find the
funding,” the fact is that Fred Cone’s administration had
rejected a lot of federal aid for buildings which would
have been otherwise available to him and that put the state
a little bit behind its population growth before World War
223
I, and then you have a tremendous influx of people im
mediately after, the GI Bill which put a lot of pressure on
the higher-up colleges, and that’s the general impression
I’ve had and i confess that’s about it.
Q. Dr. Shofner, you’ve given me, I think, a good ex
planation of what was behind the Minimum Foundation
Program and its enactment and the problems that
developed and when they developed that caused it to be
enacted and you did not mention in that explanation
anything about the courts holding the white primary to be
illegal in 1945. Was that in any way connected directly or
indirectly to the establishment of the Minimum Founda
tion Program? A. It seems to me it was very easy to
make that little one-paragraph change in the entire law.
There was [118] no major discussion on it. As far as I
know there was no debate.
THE COURT: You say the change was a part of the
Minimum Foundation Program? A. Yes, it was just in
that particular paragraph or subparagraph, I’ve forgotten
which one it was, the 1939 law in that portion was
changed.
Q. So it is your testimony that that portion of the
Minimum Foundation draws or is directly correlated to
the 1945 decision? A. I’m saying that nothing had hap
pened between 1939 and 1947 except the Texas vs., Smith
w. Allwright in Texas, and the Davis vs. State o f Florida
in Florida with respect to the nominating process for
school board members. And that’s what I’m saying. The
timing is strongly suggestive.
Q. So you assume from the context in which, the time
in which the change took place — A. Maybe deduce
would be better.
224
Q. Deduce. But do you have any other sources that
you have consulted that you can offer in support of your
deduction that that change was racially motivated?
A. No one has told me specifically that that was the
reason for it, no
Q. No one has told you that? [119] A. No. I’ve not
asked anyone, however.
Q. Has anyone, has any source supported your deduc
tion in that regard? A. Well, just about everything
that’s been written about the state in that period suggests
that that’s here again the general context that I suggested
was it, and as far as the direct tie, you’re going to find
that. It doesn’t exist.
Q. You’re not going to find historical suport for a
direct correlation or a tie, are you, Dr. Shofner?
A. Not in the judicial sense at all. Historically, yes.
Q. Historically, yes? A. Yes.
Q. Tell me what sources support that? A. I’ve just
gone over it.
THE COURT: I think, are you talking about all your
general testimony? A. Yes, that’s all. Yes.
Q. You’re saying, “Refer to my general testimony.
That supports it. It took place in that time period;
therefore that must have been the purpose.” A. I didn’t
say it must have been the purpose. I said it was a purpose.
Q. Are you familiar with the people, the [120]
legislators and others close to the education scene at the
time who were responsible and instrumental for the adop
tion of the Minimum Foundation Program? A. No.
The only one I knew is deceased. I can’t even think of his
name now. He was from my region there. I checked this
out, as a matter of fact.
225
Q. Assume for the minute, if you will, that a legislator
of the time by the name of Leroy Collins was instrumental
in enactment of the Minimum Foundation Program.
Would you ascribe to him that motive? A. Well, in
1954 as Governor of the state he avowed to the body
politic to do all he could that was legal to preserve the time
honored institution of white supremacy, segregation.
Q. So you would ascribe that motive to him? A. I
don’t think it’s doing a disservice to an honorable man that
changed his mind to say that he was part of his community
at that particular time.
Q. Fine. I knew that you knew that he had said that in
1954. Did he make any such statements in 1947 at the time
of the enactment of the Minimum Foundation
Program? A. I doubt seriously if there was any need
for him to. It hadn’t risen to the level of expression by that
time.
[121] Q. I’m going to wrap this up, Dr. Shofner. Is it
not implicit in your testimony that in your opinion at-large
elections disenfranchise black voters? A. Currently.
Q. Yes.
THE COURT: Say that again. Will you repeat that
question?
Q. Yes, Your Honor. Is it not true that it’s implicit in
your testimony that in your opinion at-large elections
disenfranchise black voters? A. No, but I think it is im
plicit that it helps to dilute the effectiveness of black votes
still. And that’s, I think that is implicit in what I’m saying.
I would like to make it implicit.
Q- So it is, the answer to my question is yes? A. (The
witness nodded in the affirmative.)
226
Q. Finally, Dr. Shofner, you testified to your findings
and feelings of the political mood of the state during this
entire period of time and I believe you testified that that
would be a mood that would be prevalent here in Pen
sacola just as it was throughout the state. A. I think so,
yes.
Q. Fine. Do you, sir, recognize as authoritative the
works and writings of a historian by the name of [122]
James R. McGovern? A. I’ve read the manuscript and he
asked me to read it before publication. I made some, I had
some reservations about it, which I don’t know whether he
incorporated them or not. But I don’t know specifically
what you’re speaking about but I am familiar with it and I
have immense respect for Dr. McGovern.
Q. Well, do you recognize this manuscript or this
book? A. I’m aware that that’s the book that came
from the manuscript, yes.
Q. You recognize it as being authoritative treatment
of local history in the period of 1900 to 1945? A. With
some reservations that I’d have to produce. I don’t recall
now, but I sent him a critical commentary and I would cer
tainly have to refer to that before I could —
Q. Do you recall offhand what those reservations
were? A. No. I remember the one thing, I asked him,
“Why don’t you bring it down to the present,” and he said
he thought that was enough for one volume and that was a
legal, I mean legitimate breaking-off point there. But I’ve
forgotten now what. I really have.
Q. Do you recall any other reservations you might
[123] have had with regard to this manuscript? A. No. I
think he’s a careful worker, if that’s what you mean.
Q. I understand. But is it your testimony now that
227
notwithstanding that you still are not ready to adopt this
work as an authoritative work on Pensacola history during
the period 1900 to 1945, that you’re not willing to
recognize it? A. I think it’s a general overview which
shows the growth of a port town from a very infant sort of
a rural place to what he calls a metropolis in 1945. It’s a
general overview.
Q. Not an in-depth historical study but a general over
view? Is that the qualification? A. Yes, that’s the
qualification I’m trying to make. It can’t do that sort of
thing, I think.
Q. Dr. Shofner, let me ask you this. Would you just
read the first sentence on the very first page of the in
troduction, the second paragraph. A. Let me get my
glasses. Where it’s lined there?
Q. Yes. Read that first sentence. A. I don’t quarrel
with that.
Q. Please read the first sentence. A. “Pensacola,
Florida, is not a typical Southern city.”
[124] Q. You do not quarrel with that? A. In
the sense he means it. Would you connect the second
sentence to it? He’s talking about the fact that it’s long
been a military center and —
Q. Dr. Shofner, did you state that you do not quarrel
with his statement on the first page? A. Yes, sir.
THE COURT: Mr. Ray, let’s don’t take the statement
out of context.
A. I said I did not quarrel with it.
THE COURT: It could mean many things. A. Okay.
THE COURT: Just a minute, sir. Are you trying to get
*nto something in that book that shows it’s not a typical
228
Southern city in the sense it has less racial motivation or
something?
MR. RAY: I’m asking him whether or not he agrees
with the statement by that, the historian James R.
McGovern, as stated here.
THE COURT: My point with you, sir, is that I think all
of us could agree that perhaps Pensacola is not a typical
Southern center but the question is whether it’s not typical
of the way you are seemingly implying or something else?
A. I don’t understand
[125] MR. RAY: Dr. Shofner would like to have you
think that, sir.
THE COURT: What is the second sentence?
A. Okay, the first sentence, “Pensacola is not a typical
Southern city. The fact that it was a port and a military
base accounts for its rich differences and thus invites at
tention to the actual mosaic often conveniently described
as the New South.”
Q. Do you disagree with that?
A. No.
MR. RAY: No further questions.
THE COURT: Any redirect?
MR BLACKSHER: No redirect at all, Your Honor.
THE COURT: This means this witness is excused from
further attendance, hearing no objection. Doctor, you’re
excused from further attendance.
* * * * * *
229
TESTIMONY OF DR. GLENN DAVID CURRY*
[250] GLENN DAVID CURRY, called as a witness by
the plaintiffs, being first duly sworn, testified as follows:
* * *
[306] Q. Let me ask you this now. Does a regression
analysis, as I understand, is a measure of the best straight
line analysis of comparison of two variables? Is that cor
rect, sir? A. Ordinary least squares is what this techni
que is called, the simpliest form of regression. There are
more complicated forms that could get the “r” square
higher such as a whole set of quadratic regressions and or
thogonal polynomials.
Q. Suffice it to say, though, in this case in one par
ticular regression analysis you’re comparing two variables
at one time, are you not? [307] A. For straight line,
yes, sir.
Q. Is qualification of a candidate a variable in an elec
tion or in a voting issue?
Q. Qualification of a candidate? A. Yes, sir.
A. It sounds like a political science question. Do you
want my opinion as a citizen?
Q- Yes, sir. Does qualification of a candidate strike you
as a variable to be considered in analysis? A. When I
vote, I vote on qualifications. I don’t vote as an expert.
THE COURT: You’re talking about things you read in an
out?
A. Yes, sir.
THE COURT: But you did not and could not take into
these things the fact that different candidates have dif-
*Transcript pages 251-57, 261-63, 271-73, 299-303, 341-44 of Dr.
Curry’s testimony were accidentally omitted in printing but are includ
ed in Volume V to this Joint Appendix at 1267-83.
230
ferent appeals unrelated to race or anything else, par
ticularly to certain segments of voters?
A. Yes, sir.
THE COURT: That’s something you could not take in ac
count in analysis?
A, Yes, sir, and if we could take it in account we
would have to assume it fits in what’s left over after the
percent black, which in some cases is 90 percent, so it
would fit in the 10 percent.
[308] THE COURT: Not necessarily. Wouldn’t a
black person vote for a white person and vote not because
of race but qualifications, and in fact a white person
would do the same?
A. Yes, sir.
THE COURT: In fact we’ve had a couple of races in this
county where apparently that’s happened.
A. Yes sir.
THE COURT: It’s not necessarily what you said; it’s just
simply a factor you couldn’t take in account?
A. It’s a factor I couldn’t take in account but in those
races where you have a 90 percent “r” square that is so
powerful that it is showing in that case they were voting on
the basis of race.
THE COURT: All right, sir. Go ahead.
Q. Does it not consider, does it not show that only
among the variables which were considered — A. Sir?
Q. Does it not show, the “r” square, a high “r” square,
show the percent of variation or the explanation for the
percent of variation only among those variables which
were considered? A. Yes, sir.
231
Q. And if qualifications were not considered then it
does not show it with respect to qualifications [309] that
having not been taken into consideration, is that
correct? A. May I state where that might occur, that it —
THE COURT: We’re not asking you for explanation so
much at this time, Doctor, as we’re asking you for answers
to his question.
A. Is it possible, yes, it’s possible, but I could give him
the answer.
THE COURT: It is possible, and that’s all he asked you.
A. Yes, sir. Thank you. I could tell him how it would
be possible.
THE COURT: He doesn’t want that.
Q. Maybe Mr. Blacksher would want to ask you that
later on.
THE COURT: We’ll get along faster if you’ll confine
yourself to the answers to the questions. If you can answer
yes or no, do so.
A. Yes, sir.
THE COURT: If you have to explain it, you can.
Q. In whatever event, in whatever variables you’re
considering you characterize this as your statistical best
guest? Is that you testified on direct? A. Yes, sir.
Q. That’s without knowing how many people actually
voted, you did not know how many people actually voted
when you did this particular regression analysis? A. I
wish to -
THE COURT: Your answer is you do not know how an
individual voted?
232
A. I don’t know how an individual voted.
THE COURT: All right, sir.
Q. What you’re doing is not how people voted as to a
particular candidate but merely the percentage of voters in
the precinct as to the percentage of votes the particular
candidate got? A. That’s what I’m comparing but
my conclusions are based on individuals voting. The con
clusions I’m coming to do speak to individuals.
Q. Were you saying, were you testifying in terms of
conclusions at your deposition or were you going to leave
that to Dr. Cotrell? A. At my deposition I don’t think
I’d made many conclusions from them and I was given
the idea that you were going to ask Dr. Cotrell for conclu
sions. The only conclusion I’ve made, as a matter of fact,
is that there is polarization in voting.
Q. Now, you defined an “r” square, pardon me, a
[311] moment ago you’d said I believe, that a high “r”
square at the level of .9 would be so powerful as to race
that it had to show racial polarization, did you not? A.
Did I say that? Yes, sir.
Q. Okay, if a black candidate — A. Except I did
say it was possible for it not to, in case an additive were
brought in, and the particular instance you asked me, you
told me you didn’t want to hear.
Q. If a black condidate only exposed himself to black
voters and only campaigned and the only issue he cam
paigned on was that he would represent black interests it
would still be conceivable to get a high “r” square of .9,
would it not? A. Yes, sir.
Q. Now, you’d indicated on your direct examination
you used some hundred twelve or hundred fourteen
precincts in all of your regression analyses. A. No, sir,
233
I used whatever precincts were available and in the 1976
county elections it was a hundred fourteen precincts.
Q. In the case of elections within the City of Pensacola
you didn’t have a hundred fourteen but in some instance
only had twenty-nine or twenty-seven, is that
correct? [312] A. It varied, yes, sir.
Q. Is twenty-nine or thirty-seven entries enough in
your judgment, your professional judgment, to make a
conclusion based upon that small number of
entries? A. Yes, sir, it is, but, yes, sir.
Q. Wouldn’t you need a hundred? A. Not
necessarily, sir. If you’ll check Draper and Smith, which is
the definitive source on regression, you’ll find they do
regression with twenty for most of the examples.
Q. Do you recall that Mr. Caton at the deposition on
February the 27th posed some hypothetical questions to
you with respect, and gave you a number of samples and
inquired about what conclusions you could draw from an
instance of three samples? A. Yes, sir, I think.
Q. And you rejected the three samples, did you not,
that you could draw conclusions? A. I think so. I don’t
remember.
Q. Then he asked you if you could assume there were
ten and you rejected those as well, did you
not? A. Yes, sir.
Q. In fact you asked for a hundred before you agreed
to make a conclusion, did you not? [313] A. He gave
me ~ if you could repeat the hypothetical example Mr.
Caton gave.
Q- Okay, sir. I have the beginning of it but I can give
you the page right here. It’s on page 66. I’m trying to find
where it begins.
234
MR. BLACKSHER: May I give the witness a copy of
his deposition?
Q. I’m going to have to back up, I think, Dr. Curry, to
say page 63, about line 12, and that’s where the series of
questions begins. Let me read it to you. Question, “Let’s
assume that candidate A was running against candidate B
in all three of those races. Let’s assume that candidate A
was white and was also the incumbent. Let’s assume that
candidate B was black and was not an incumbent. Let’s
assume that candidate A won all three races. Let’s also
assume that candidate A received a majority of the white
vote pursuant to your analysis and candidate B received
the majority of the black vote. What sort of conclusion
would you draw from that?” Answer, “Probably none to,”
and then Mr. Menefee states, “I’m going to object to the
form. Answer it if you can.” The witness: “I probably
wouldn’t draw any conclusions except the ones that you
have already assumed, that the incumbents won every
race. I don’t understand, I couldn’t do a statistical analysis
of those [314] three races given the data that you have
given me. That is an awful small sample.” By Mr. Caton
question, “You mentioned here you used several factors
when you were doing your analysis: Income, voter
registration, race, party preference, vote return, what was
that?” Answer, “Vote return is what I’m predicting. You
know, that is the dependent variable in this case. I’m
checking turnout on each election, by the way, let’s men
tion that.” Question, “What I’m getting at is if you have,”
apparently a typo, “data that indicated two different
things, how could I draw a conclusion. Can I draw a con
clusion that white candidates vote for white people or that
white candidates vote for incumbents or that black people
do not vote for incumbents, how could I draw a conclu
sion?” Answer, “Okay, what I need to do, let me think a
second about that you are getting at because the problem
is a complex statistical problem. When they hired me, h
took me a couple of days to think about the problem after
235
they gave me the details and then asked questions about it,
so then, let me think about it a second. You have got three
races in 1977 involving candidates, incumbents.” Ques
tion, “Incumbent is A and newcomer is B. Also all of the
incumbents are white and all of the newcomers are black. ”
Answer, “Okay, and you are saying that the white people
predominantly vote for [315] the incumbents and the black
people predominantly voted for the newcomers on these
three races?” Question, “Right.” Answer, “Okay, I would
say you are wasting your money on statistical consultant.
That is just, I mean you have already said everything that
can be concluded from that.” Question, “Well.” Answer,
“I would say it’s a dilemma, you know, why, the question
to whether blacks just don’t like to vote for incumbents or
not is still open.” Question, “Well, could I conclude from
that, from the hypothetical that I have given you, could I
conclude one of two different things, either that black
voters like to vote for black people or that black voters do
not like to vote for incumbents?” Answer, “Just given
three races that feel every way, the blacks,” question,
“Yes.” Answer, “Would you conclude or do you want to
know —
THE COURT: Mr. Fleming, I think this is the longest ver
sion of impeachment I have ever heard in my life. I’m not
sure what you’re getting at.
MR. FLEMING: Has he testified differently than he’s
testified here?
MR. FLEMING: I think, Your Honor. I have about
three more questions from this deposition.
THE COURT: All right, sir. I’ve never heard impeach
ment done in this way before. Go ahead.
[M6] MR. FLEMING: I was only reading that much
to bring it into context.
THE COURT: Go ahead and get through with it.
236
Q. Answer, “Would you conclude or do you want to
know what I would conclude? 1 couldn’t conclude
anything from the three races, to tell you the truth.” Ques
tion, “Let’s assume there were ten of them with the same
result in each one.” Answer, “Could you give me a hun
dred elections?” Question, “Let’s make it a hundred.” So
you asked for a hundred elections before you could draw a
conclusion? A. Yes.
Q. With respect to that instance? A. In that par
ticular situation. That’s a different situation than what I’m
doing here, though, considerably different, sir.
Q. It’s a comparison of the number of samples,
though, is it not, trying to draw a conclusion from the
number of samples that you had to draw in each
race? A. Yes, sir, and in this situation I don’t, if it
turned out the way Mr. Caton said I still wouldn’t be able
to draw the kind of conclusion he wanted from a hundred
races, especially if they all went the same, because there’s
no variation in the example Mr. Caton gave me. In every
case we know that blacks don’t vote for [317] in
cumbents, blacks don’t vote for winners, we also know
that incumbents always win. Without the variation you
don’t have any statistics.
Q. Okay, sir. I appreciate that explanation. I would
like now to go on to another matter, some of your fun
damental explanation that you drew on the easel here for
the Court. If I could back up just a little bit, what you
say, do you not, is that a regression analysis gives you an
equation of a straight line represented by the formula Y is
equal to a plus bx? A. Yes, sir.
Q. And the little a in this instance is where the line in
tercepts the y axis? A. Yes, sir.
Q. And if you’re applying it to the factual situation
that we’re applying here then that y axis would indicate an
all-white vote where there were, pardon me, where there
237
are no blacks regis tered to vote in tha t
precinct? A. That would be the best guess, sir. If you
look at the example behind you, you’ll see it crosses, that
in the zero precinct the best guess from the equation is not
where the zero race is.
Q, Okay, well, that’s your this is your [318]
hypothetical? A. yes, sir.
Q. On the next page you showed the line crosses bet
ween two dots. Is that your point? A. Yes, sir.
Q. Okay, and back to the equation Y equals a plus bx,
then b is the slope? A. Yes, sir.
Q. Of the line, and this line is the line you attempt to
draw each time you do a regression analysis. You could
plot that line theoretically on every scattergram that you
do in which you do a regression analysis, is that correct,
sir? A. Yes, sir.
Q. I would like to look at some of these races, if we
could. Why don’t we look at a countywide race, 1976, first
primary, between, in which Dr. Spence was the black can
didate and his white opponents were Mrs. Marshall and
Mr. Smith, 1976. A. Is that county commission, sir?
Q. No, this is school board.
THE COURT: This was a race between a white and a
black?
MR. FLEMING: A black and two whites.
THE COURT: A black and two whites.
[319] MR. BLACKSHER: Number thirty-two in the
summary, Your Honor.
THE COURT: Beg pardon?
MR. BLACKSHER: It’s number thirty-two in plaintiffs
exhibit 16, the summary, if you want to look at it, on page
thirty-six of the summary.
238
Q. I wonder if we could look at the scattergram. Do
you have that with you? A. Yes, sir, I’ll find it for you.
THE COURT: You say page thirty-two?
MR. BLACKSHER: Page thirty-six, Your Honor,
number thirty-two.
A. This is tabbed wrong.
Q. Well, I have a copy of it here, if we could work
from mine, perhaps. Here you go, sir. A. Okay, that’s
fine.
THE COURT: I think I’ve got the results over here. You
all go ahead. I’ll look at it as you go.
Q. Let’s examine that particular scattergram there.
There are two in that particular race and if we could look
at the scattergram that was done comparing the percent
black to the percentage of votes for Dr. Spence. Would
you draw for me, please, sir, the regression line.
A. Okay, let me see.
Q. In that particular instance.
[320] A. Let’s see, we get the equation this is percent
votes for Spence equals, this is the intercept, 25.23966,
plus .7.
THE COURT: This is getting in the record. He’s using
your copy.
A. I’m sorry.
THE COURT: Go ahead.
Q. Is that all right on the scattergram? It’s typed into the
result, is it not, in your printout? A. Yes, sir, it comes
out right here. This is the equation. You take the slope
here, multiply it times percent votes for blacks and it gives
me this equation and I would draw the line for the equa
tion substituting in values. The easiest value to draw in, of
239
course, would be if the percent black were zero. That
would be 25.23, which would be right about here.
Q. Will you draw the line, please, sir, or estimate it as
bet you can. A. Oh, yes, sure.
THE COURT: Doctor, you don’t have to be too ac
curate, just an estimate.
A. I can draw the line. If we had a hundred percent
black neighborhood this would be 70 so we have 70 plus 25
is 95. It would be right here, and if I had a straight edge I
would be able to draw you a straight line [321] and it goes
right there.
Q. Okay, and an “r” square based on that line, you say,
tells you what percent of variation in candidates’ votes can
be explained by the changes in percent black? A. Yes,
sir.
Q. Okay, and you say your “Y” intercept there is 25 plus
a fraction? A. 25.3966.
Q. On this scattergram does each of those dots represent
a precinct? A. Yes, sir.
Q. And a plotting of the percent black in the precinct
and the percentage of votes that that candidate got? A.
Yes, sir.
Q. Can you look at that scattergram now in this par
ticular race? A. Yes, sir.
Q. And note, if you would, does this not indicate that
Dr. Spence got better than one-third of the votes in thirty-
seven of the hundred fourteen precincts? A. I’d have to
count.
Q. Why don’t you count. A. All hundred or so?
THE COURT: What is it, gentlemen, you’re driving
[322] at?
240
I don’t understand it. We’re talking about race and those
kind of things. He did get a substantial number of votes.
But how does that prove that there’s something wrong in
his statiscal analysis when you get it down just to thirty-six
precincts unless you’re going to carry it a step further and
show what the race percentage is? I don’t understand this
approach.
MR. FLEMING: Maybe I can get into it in a little bit
more of a fundamental way.
THE COURT: All right, let’s let him assume he got
them in thirty-six. You counted them, whatever you want
him to tell you, make the assumption, whatever it was; he
got one-third of the votes in thirty-six precincts. Is that
what you want him to do?
Q. Yes sir, this was a race with a .90 “r” square, and “r”
square you consider very high, do you not, Dr.
Curry? A. Yes, sir.
Q. Okay, if you count them does it not indicate that Dr.
Spence got better than a third of the vote in thirty-seven of
all the precincts? A. Yes, sir.
Q. Okay, does it also show that Dr. Spence carried over,
he got over 50 percent of the votes in some nine precincts,
which were over one-half white? [323] A. Let’s see, I can
get that. There’s the 50 percent line. How much was the
percent white, sir?
Q. Fifty percent white. A. Fifty percent white. Okay,
he got over 50 percent?
Q. Right. A. In one, two, three, four, five, six, seven;
seven, I count, sir, roughly. That’s close enough.
THE COURT: Predominantly white precincts is what
he’s asking.
241
A. Yes, sir.
Q. Okay, and he got over 30 percent of the vote in
several all-white precincts, did he not? A. In several, yes,
sir, he did. All-white precincts, let’s see, five of them, sir.
He never got over 45 percent, though, in any all-white
precinct.
Q. Okay, but nevertheless this was a .9 “r” square and
shows a considerable white vote that Dr. Spence got, did it
not? A. I wouldn’t call it considerable, considering all
the election returns, sir.
Q. Considering the fact he lost the election? A. Yes,
sir.
Q. Is that what it takes, a considerable number, would it
have to be that Dr. Spence won before he got a [324] con
siderable number? A. I’m sorry, I can’t define con
siderable.
Q. I’m sorry, it just a rhetorical question and I withdraw
it. A. Yes, sir.
Q. The point I’m trying to make, let me just ask you a
question this way. Is it not possible to conclude in some in
stances, being some scattergrams and regression analyses,
that you can have a relationship or a high “r” square and a
relationship over the full range from zero percent black to
100 percent black yet within a certain range you might
have no relationship? A. That’s true, sir.
Q- Is that true? A. Yes, sir.
Q. I have a text here. Do you regard — A. Yes, sir.
Q- Mr. Hubert M. Blalock, Jr., who wrote the text
Social Statistics, as authoritative in this field? A. Yes,
s>r, it’s one of the best texts. I used that in 1971 in my first
regression course. Chapters sixteen and seventeen are the
chapters on regression. I think.
242
Q. Real good, because I’m referring to a diagram in
paragraph seventeen, a copy of which I have [325] marked
as defendant county exhibit number 1 for identification,
and I would ask you if that diagram explains this
phenomenon. Here’s a copy for the bench. Or if that’s an
example of this phenomenon showing a relationship over
the full range. A. Yes, sir.
Q. And not showing it within a limited range? A. Yes,
sir.
MR. FLEMING: I’d offer the Xerox copy of this
diagram into evidence as defendant county’s exhibit
number 1.
THE COURT: Any objection?
MR. BLACKSHER: No objection.
THE COURT: Put it in evidence without objection.
DEPUTY CLERK: Defendant county’s exhibit number
1 is received in evidence.
Q. So you can have a relationship over the full
range? A. Yes, sir.
Q. And not necessarily have one at the low end, and
bringing that to this case, then you could have a relation
ship of percent black to percent of votes that a particular
candidate gets, very positive relationship over the entire
range? A. Over all the precincts.
[326] Q. Whereas you might not — A. Yes, sir.
Q. Where you have a low percentage of white can
didates? A. Can I show you an example of that, sir?
Q. Let me go through some other examples now, Your
Honor. This is the point I was trying to make, and if I may
and you’ll bear with me a few minutes, I would like to go
through a few more of these contests. Let’s look at —
243
THE COURT: If you’re going to another one, you want
to finish with him. He asked you questions about this, but
does that alter your opinion?
A. No, sir, it doesn’t alter my opinion.
THE COURT: So there you are when you’re cross ex
amining.
MR. FLEMING: Thank you, Your Honor. This is
plaintiffs’ expert.
THE COURT: I don’t see any basis, frankly, to cause
me to be dissatisfied with it. We can take all kinds of
figures and things like that and come up. All this is possi
ble, but he had this particular situation and based it on it.
Now, I’m no expert in statistics and I assume you’re not,
sir, either.
MR. FLEMING: Well, that’s why, Your Honor, I’m
[327] trying to bring it down to the black and white of the
scattergram.
THE COURT: Fine, sir, but as I get through with what
you just got through and we took ten or fifteen minutes on
it, it hasn’t altered his opinion one bit, nor did I see any
basis for it to be required to be altered.
MR. FLEMING: I don’t think it’s going to be altered.
THE COURT: I see no reason why it should be from
what you’re cross examining on, and I’m the one you’re
trying to get to.
MR. FLEMING: I’m not trying to alter his opinion. I’m
merely trying to show the scattergrams support the defen
dants’ opinion in the case as well as support the conclu
sions drawn by Dr. Curry.
THE COURT: I’ll let you try again and see some place,
but there are variations in it, but what he has here are all
244
consistent with what he said, as I understand it. I’ll let you
go further. Go ahead.
Q. Thank you, Your Honor. I would like you now, Dr.
Curry, to refer, please, to the 1974 general election for the
school board between Mr. Jenkins, the black candidate,
and Mr. Leeper, his white opponent.
THE COURT: This is 1974?
[325] MR. FLEMING: I have them marked on the tabs.
A. Thank you.
MR. BLACKSHER: Page thirty-six, Your Honor.
THE COURT: Page thirty-what?
MR. BLACKSHER: Thirty-six in the summary.
Q. That one is for Leeper. Let’s look at, there doesn’t
appear to be one for Mr. Jenkins in this, does there? A.
No, sir, it would have been a waste of computer money to
keep running mirror images.
Q. Examining that particular scattergram, keeping in
mind all the dots indicate the runs in a particular precinct
— A. Yes, sir.
Q. Does not that scattergram support the conclusion
that Jenkins carried some nineteen precincts which were
over half-white? A. Jenkins, let’s see, this —
Q. That’s on Leeper. A. This is Leeper, okay.
THE COURT: Jenkins was running against Leeper? Is
that the race you’re talking about?
MR. FLEMING: Yes, sir, the 1974 general election.
A. Let’s see, these are all-white precincts up here and
carrying would be getting over 50 percent of the [329] vote.
Q. Yes, sir. A. Since Leeper got over 50 percent vote
245
in all these white precincts I guess these would be the ones
where Mr, Jenkins got over 50 percent. I count two, sir.
Q. Okay, I didn’t say all-white. I said where they were
over 50 percent white. A. Fifty percent, sorry, sir.
THE COURT: Your point is what now, that Jenkins did
what now, sir?
MR. FLEMING: My point is that despite a high “r”
square of .89 in this case that Mr. Jenkins is getting a con
siderable number of white votes.
A. I would rather say some myself.
THE COURT: How’s that?
A. I would say some rather than considerable.
Q. Rather than making the distinction between some
and considerable, that’s why I’m suggesting we count
them.
THE COURT: What were you saying? He got so many
votes in something?
MR. FLEMING: I’m saying this diagram suggests that
he carried nineteen precincts which were over half-white.
[330] THE COURT: I tell you what I want to do. It’s
about 10:30. I can see where we can go on and he’s got to
take time to do all this counting. I’m going to take a recess
and you can sit down and tell him whatever else is coming
up and let him count it while we take a recess and move
along. I’m getting more and more concerned, the way this
case is going. It takes a lot of time.
MR. FLEMING: Well, it could take a while, Your
Honor, so maybe we ought to take that recess.
THE COURT: We’ll try to move it along and work late
hours. Suppose we take a recess at this time and be in
246
recess for about fifteen minutes to give you a chance,
whatever else the rest of your cross examination is getting
into, you go into it instead of taking time now to count
and do things like that. Court will be in recess for about
fifteen minutes.
(Recess)
(Open court)
THE COURT: You may proceed, Mr. Fleming.
MR. FLEMING: Your Honor, I think I can be very
brief from this point on. Counsel for the plaintiffs have
agreed that it would be acceptable if I prepared a summary
at a later time of the conclusions I would like to be drawn
from these scattergrams, and so long —
THE COURT: You don’t want to cross examine him
[331] on them?
MR. FLEMING: Yes, Your Honor. I was just pointing
out I’ll make the cross examination much briefer due to
that.
THE COURT: All right, sir.
CROSS EXAMINATION RESUMED
BY MR. FLEMING:
Q. Dr. Curry, would you tell the Court what you mean
when you conclude, as you have done in many instances
here this morning, that there’s polarization. A. For the
definition I’m using here, if there’s an “r” square higher
than .50 and a relationship between percent black voters in
the precinct and percent of the votes a particular candidate
gets, that vote is polarized.
Q. So that’s all you mean to say then, is a high r
square? A. Yes, sir.
247
Q. Can members of the black race, if members of the
black race are voting for only black candidates and there is
no, little evidence with respect to how the whites are do
ing, can you still have a high “r” square? A. There is
evidence of how the whites are doing here, sir. No, sir, I
don’t understand. I don’t understand the question, sir.
Q. Can you have a high “r” square by virtue alone [332]
of blacks voting consistently for blacks? A. No, sir, you
have to have whites not voting for blacks also, or a tenden
cy.
Q. Let’s look at an example then here, if we could. I
referred during the recess to a 1975 election for city coun
cil in which Mr. Williams was the black candidate. His
white opponents were Messrs. Ferraro and Porter. We had
an “r” square of .67, which you indicated would be in
dicative of polarization in that race, did you not? A. Yes,
sir.
Q. Would you explain in that scattergram and tell me if
it is true that with respect to the all-white precincts, and I
would be defining all-white for the purposes of this ques
tion, a precinct which is 95 percent or better white — A.
Okay, that’s right over here, sir.
Q. That in every one of those elections but two or every
one of the precincts but two Mr. Williams carried and got
a majority of votes. A. Yes, sir. You don’t need a
statistician to tell you that.
THE COURT: You think there is polarization?
A. There is because it’s defined by blacks voting dif
ferently from whites. Even though this man won [333] this
election still blacks and whites were voting in a polarized
manner here.
THE COURT: What you say is this, that when we get
through with race polarization it is not necessarily in
248
dicative of the question whether a black candidate can or
can not get elected; all polarization does is show to varying
degrees of significance a tendency on the races to vote for
members of their own race? That’s all polarization shows?
A. Yes, sir.
THE COURT: It is not indicative and can not be said to
be absolute proof certain that even where we have
polarization a black can not get elected against a white
because we’ve had it happen?
A. Yes, sir.
MR. FLEMING: Yes, Your Honor, and further that
you can have polarization by Dr. Curry’s definition even
in a case where the black candidate gets the vote in every
white precinct except two.
THE COURT: Let’s ask him about that one again. In
this particular instance Williams, from what you just told
me, Hollice Williams, he carried the predominantly white
precincts.
A. He carried all but two in this particular election, sir.
[334] THE COURT: How can you say there was
polarized white voting against him?
A. Compared to the black, compared to the black votes
there were more. There were more. He got more votes in
the black precincts. That’s the only way you can say.
THE COURT: But all you can say there is that the
blacks voted for him but you must also say that the whites
voted for him.
A. Yes, sir.
THE COURT: So your definition of polarization means
where any one race votes for that particular race, that’s the
limit of your definition?
249
A. It’s not just a matter of race. It could be, for in
stance, we had two white candidates even, or two black
candidates, and one race voted for one of the candidates
solidly and one race voted for the other candidate solidly.
It’s a matter of whites and blacks voting at different
poles, different ends of the spectrum. In this case what this
means —
THE COURT: Anyhow when you said there was racial
polarization in every race you checked, under your defini
tion of racial polarization it would mean in the particular
case whereas here in your statistics your approach shows
the blacks voted for the black candidate.
[335] A. Yes, sir.
THE COURT: That would be sufficient to establish
racial polarization as far as you’re concerned because in
this instance it also shows that the white people voted for
the black candidate as well.
They voted less. They voted less for the black candidate
and voted more for the white candidate.
THE COURT: I see. It gets to where your “r” two factor
was what?
MR. FLEMING: Point 67.
Yes, sir.
THE COURT: Point 67.
MR. FLEMING: I have no further questions, Your
Honor.
THE COURT: All right, sir. Redirect? Didn’t we have
another election in which we had a black man elected? I
was going to ask about that one.What about that one?
MR. FLEMING: That would be Dr. Spence.
250
THE COURT: I would like to have you tell us about
that one. I know we had one more.
A. Okay, do you have that handy?
MR. FLEMING: That was for city council.
A. Yes, sir.
MR. FLEMING: Here we go. I’ve got it right [336] here.
THE COURT: Which race was that one, sir? I’ve
forgotten which one it is. You all know, I’m sure.
MR. FLEMING: Nineteen seventy-five.
MR. BLACKSHER: Page twenty-three of the sum
mary, Your Honor.
THE COURT: Page twenty-three, all right.
MR. FLEMING: Your Honor, I submit that an ex
amination of this particular race, here’s the scattergram
for Dr. Spence. There was an “r” square of .82. Dr. Spence
won twenty-five of the thirty-seven precincts and only nine
of those twenty-five were over 50 percent black and I think
that would be borne out by examination of the scat
tergram.
THE COURT: Well, that shows an “r” two factor you
have of black, this is Spence-Gilmore race, is that right?
MR. FLEMING: I believe so, Your Honor.
THE COURT: For the city council.
MR. CATON: Right.
THE COURT: In that one you showed an “r” two factor
of 82, which would indicate polarization to you?
A. Yes, sir, there was polarization.
THE COURT: Yet when we got around to the white
251
people voting in this thing you said since they did not vote
for [337] him but the white people did vote for him, did
they not?
A, Sir, less white people voted for him than black peo
ple. That’s what I’m saying, polarization.
THE COURT: But more white people voted for him
than voted for the white opponent, is that correct?
Yes, sir.
THE COURT: So you can’t say from that there was
polarization from the white people either because actually
more of the white people voted for the black candidate
than voted for the white candidate.
A. The black candidate, yes, sir.
THE COURT: I can say there’s polarization because
blacks are significantly voting different from whites?
MR. FLEMING: And you’re saying there can even be
racial polarization by your definition when the black can
didate wins the election in a county where there are only
16.2 percent registered voters who are black?
A. Yes, sir.
MR. FLEMING: That’s all I have, Your Honor.
THE COURT: Your polarization is a one-way street.
You say there’s polarization in either race when it’s shown
to be voting by race?
A. It takes both of them. It takes one voting con
siderably less than the other.
[338] THE COURT: Go right back to the last race.
When you take one vote considerably less than the other
you’re saying more blacks voted for the black than the
white one, but by the same token you’re saying more
whites voted for him than the white one.
252
A. Yes, sir, that is the outcome, which I’m not analyzing
outcomes.
THE COURT: One other thing. We had a school board
race which you pointed out in which, let’s see, Dr. Spence
lost out in the school board race a little bit later on, didn’t
he? I believe that’s before me. Was it 1976?
MR. BLACKSHER: Yes, sir, on page thirty-six.
THE COURT: We had a-school board election there in
which every candidate was defeated for reelection. Now,
in your figures you don’t take in, you didn’t put in a factor
of incumbency.
A. No, sir.
THE COURT: You ignored that and that can account
for a percentage of the votes sometimes too, can’t it?
A. Yes, sir, it could, except that I couldn’t, it would be
impossible.
THE COURT: Okay, so in this particular case here were
incumbents who normally have an edge in getting elected,
isn’t that true?
[339] A. That’s what I’ve been told and I’ve read in the
literature that’s true.
THE COURT: That’s outside your expertise?
A. Yes, sir, I’m afraid it is.
THE COURT: All right, let’s let it go then. In this par
ticular race there were three candidates up for reelection.
Two were white, one was black. All three went out.
A. Yes, sir. I didn’t analyze that.
THE COURT: As far as you’re concerned does that
have any effect on your statistical analysis here in that par
ticular race?
253
THE COURT: You didn’t look for other reasons why
all three were defeated?
A. To use incumbency I would have to be trying to
predict whether a person won or lost. I wasn’t predicting
whether a person won or lost but the percentage of votes
he got in a precinct.
THE COURT: It still remains on overall analysis all you
can do is come up with polarization and that does not
necessarily mean that blacks can’t get elected or that
whites always get elected. As far as you’re concerned it
can’t mean that because all you can do is come up with the
polarization to show trends to vote race by race.
[340] A. Yes, sir. In fact if you have a single-member
districts you could still have polarization easily.
THE COURT: Of course you could still have it.
A. Yes, sir.
THE COURT: Even in a single-member district you
might have a black and white running from the district, is
what you’re saying.
A. Yes, sir.
THE COURT: In fact I guess that’s what they’re trying
to get to, the polarization there. I don’t know, when 1 get
through thinking about that one. A single-member
district, that’s what this thing is all about, get it to a single
member district so that race vote doesn’t count. That’s
about what it amounts to, counsel. That’s what we’re talk
ing about.
MR. BLACKSHER: I confess I’m not following you,
Judge. Maybe I can agree if I understand.
A. N o , s ir, it h a s n o th in g to d o w ith it.
254
THE COURT: You’re trying to go to single-member
districts and have them elected, running from that district.
No, that’s not quite true either. You’re trying to get it to
where, yes, that is true that you get a district that you
have more blacks than whites so if you don’t vote for race
we get a black one elected. We’re looking for polarized
voting.
MR. BLACKSHER: Where the preference of the blacks
[341] might be registered in the outcome.
THE COURT: It really gets to polarized voting.
MR. BLACKSHER: Yes, sir.
THE COURT: In a district, and overall we encourage
people to forget the fact of race in voting. You say we’ve
got a situation where they aren’t forgetting so now we go
to a single-member district where it really gives some ef
fect.
MR. BLACKSHER: I think that is a fair simplification.
********
255
[Caption Omitted in Printing]
TESTIMONY OF CHARLIE L. TA1TE
[348] CHARLIE L. TAITE, called as a witness by
the plaintiffs, being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. BLACKSHER:
Q. Mr. Taite, have you been sworn? A. Yes, sir.
Q. You’ve been sworn. Would you give us your full
name and address, please? A. Charlie L. Taite, 802
East Brainerd Street, Pensacola, Florida.
Q. What’s your age, Mr. Taite? [349] Sixty-four.
Q. And for the record, you are black? A. Right.
Q. Your present employment, sir? A. I am
semiretired.
Q. And could you tell us what your prior occupation
was? A. A custodial training officer of the Escambia
County School Board, Pensacola.
Q. Have you also been in private business? A. Yes,
sir.
Q. W hat k ind o f businesses have you
operated? A. I’ve operated a grocery store, drycleaning
plant and a night club.
Q. Mr. Taite, were you born in Pensacola? A. No,
Slr> I was not born in Pensacola. I was born in Alabama.
Q- When did you come to Pensacola? A. I come to
Pensacola in 1919.
Q- Did you attend school in Pensacola? A. Yes,
sir.
256
Q. Have you also worked for the federal government,
Mr. Taite? A. Yes, sir.
Q. When was that and what was your job? [350]
A. I worked for the federal government first in 1941 as a
chauffeur but it turned out after my examination and I
was taken on the job that I was given a fork and sent to the
coal pile.
Q. Where was this, Mr. Taite? A. At the Naval Air
Station, Pensacola, with a white chauffeur driving the
truck, and I was supposed to load it for him.
Q. Did you work at the Naval Air Station for thirteen
years? A. I did. I went in the service after the first
episode. When I came out of the service in 1943, I went
back to the Naval Air Station and applied for a mechanic’s
helper’s job.
THE COURT: I’m having a little difficulty seeing all the
relevance of the prior history of his background and things
he might have done at the Naval Air Station and that kind
of thing.
Q. Let me get to it more directly, please. Mr. Taite,
did you offer for election to the city council of Pensacola
in 1955? A. Say that again now.
Q. Did you offer as a candidate for the city council of
the City of Pensacola in 1955? A. Yes, I did.
* * * * * * *
[354] Q. Mr. Taite, what made you think that as a
black person you would have a chance of actually winning
the election to the city council in 1955? There had not been
a previous person, a black person, elected previously, had
there?
MR. CATON: Your Honor, if I may, and I don’t like to
make too many objections on leading questions, but hes
257
assuming various things in his question and he’s assuming,
number one, that he didn’t feel that he could win an elec
tion. That’s the way the question was phrased.
THE COURT: I don’t think he’s in a very critical area
yet. The objection, I’ll let him lead a little bit. It might help
us. The objection is overruled.
MR. BLACKSHER: Yes, sir. It happens to be one of
the things we’ve stipulated.
THE COURT: That’s exactly right as well. That’s exact
ly right as well.
Q. So why did you think you had a chance to
win? A. Because within Ward Two where I lived the
ratio of black and white in my opinion was close enough
equal until I thought I had a chance to win.
Q. And that was a single-member district?
[355] A. Single-member district, right.
Q. Had any black persons to your knowledge prior to
this time attempted to run as a candidate for city
council? A. Yes.
Q. Who were they and when? A. N.W. Williams
and Dr. Polkinghorne. I believe the year was ’53. They
qualified. And the paper brought out their qualifications,
their pictures, and they stayed in the race for a short time
and then they came out of the race, for what reason.
Q. So they were out of the race before the election ac
tually was held? A. Yes, yes.
Q. Had you been active at this point of your can
didacy in any attempts to increase black voter registra
tion? A. Yes, I had.
Q. Would you tell us what they were. A. They
258
were from organizational point of view, conducting
registration drives, going from house to house, trying to
influence people to register to vote in order to be able to
help correct some of the injustices.
Q. Were there some organizations that you had form
ed or you were a part of who were active in the voter
[356] registration drives? A. Yes, the Pensacola Im
provement Association, the NAACP, were the two prin
cipal organizations here at that time.
Q. Okay, sir, did either of those organizations have
anything to do with the 1945 law suit that changed the all-
white primary? A. The Pensacola Improvement Asso
ciation did.
Q. Mr. Taite, when did you first register to vote?
A. Nineteen forty-eight.
Q. Why had you not registered to vote before 1948?
A. Because I wasn’t allowed to.
Q. Did you actually attempt to register? A. Yes, I
did.
Q. When was that? A. In 1941.
Q. Would you tell us what happened. A. They just
told me that no blacks was allowed to register for the
Democratic Primary.
Q. This was at the County Court House? A. The
County Court House, yes.
Q. Was the city at that time having a separate registra
tion for its elections? [357] A. I believe they were.
Q. Did you ever attempt to go to City Hall to register
to vote? A. Yes, I did.
Q. When was that? A. During the same year.
259
Q, What happened? A. They said that they didn’t
allow black people to vote in the Democratic Primary.
Therefore I couldn’t register.
Q. Mr. Taite, do you know of any black persons who
did vote during the pre-1945 days in city elections in Pen
sacola? A. I don’t know of any person that voted in the
city election in Pensacola at that time. I do know that
several people were contacted to vote and I happened to be
one of them and we were asked if our names could be
used.
Q. Wait a minute, you’ll have to explain yourself.
When were you contacted and who contacted you? A. In
1940, I’m not sure of the year, but I believe it was 1944 or
’45, one of the two, and the two candidates were running
and the power structure was interested in a particular can
didate being the winner and several of us was contacted by
a Mr. Tyler, who is not [358] living now, relative to using
our names as voters to help this particular candidate win.
Q. Were you actually asked to come down and cast
that vote? A. No, I was not.
MR. CATON: Your Honor, I’m going to have to object
to that, what he was asked to do by someone that’s not
here. That would be hearsay testimony.
Q. Who was this person, Mr. Taite, that asked you to
come —
THE COURT: Is he living or dead?
Q. Who contacted you?
A. Mr. Tyler.
THE COURT: Is he living or dead?
A. He’s dead now, I believe.
260
THE COURT: I think I’m going to let that in under the
exception. Objection overruled.
Q. I’m sorry, I didn’t get your answer to the question.
Did he actually ask you to come down to the City Hall and
cast the vote? A. No, he didn’t. He asked if my name
could be used.
Q. What did you say? A. I told him no, it couldn’t
be used unless I could go down and cast the vote. Then I
would permit him [359] to use my name
Q. Mr. Taite, would you tell us how you conducted
your campaign for city council in 1955. What were some
of the tactics that you employed to make yourself known
to the voters? A. The first thing I done was I went to
the Interdenominational Ministers Alliance and an
nounced my candidacy. Also to the Baptist Ministerial
Alliance and the Methodist Ministerial Alliance. I had no
organization. I got the approval of the ministers. I also
had the approval that I could make some speeches in
some of the churches. There was a gentleman here, the late
C.C. Harvey, who delayed his vacation in Pensacola to
help me in my campaign. I used the tactics of going from
house to house, knocking on doors and talking to people,
and I went to every house within Ward Two.
Q. Well, how did you know what the boundaries of
Ward Two were? A. Well, we got the boundaries from
the registration office and if my memory serves me right
the boundaries for Ward Two was then, on the west was
somewhere about Spring Street.
THE COURT: Well, he just asked you how you got
them. We don’t have to get into that.
[360] Q. Did you knock on the doors of white peo
ple? A. Yes, I did.
261
Q. Okay, sir, and did any of the, did you ask the white
people to vote for you? A. The few that would listen to
me. Most of them turned me away, but the few that would
listen to me, I did ask them to vote for me.
Q. Mr. Taite, during that campaign in 1955 were you
contacted again by Mr. Tyler, whom you mentioned
earlier? A. Yes, I was.
Q. Would you tell us what happened. A. Mr. Tyler
came to the grocery store where I was operating the store
and asked me if I was willing to come out of the race
because I couldn’t win and I told him no.
MR. CATON: Your Honor, I object again. Excuse me,
Mr. Taite.
THE COURT: This is going pretty far, sir.
MR BLACKSHER: Your Honor, this, we think, is im
portant testimony. We ask that it be admitted under the
dead man exception.
THE COURT: Under what evidentiary rule? I went a
little bit further with you under the exception in the rules
because the man was dead but now you’re getting
[366] intimidation and so forth up to date, and we
were trying to show that this sort of thing did happen in re
cent times.
THE COURT: Yes, of course, and when you say recent
times, it’s some twenty-three years ago, so I don’t think it’s
so very recent. And the rest of it is that to me, anyhow,
let’s go ahead with it.
MR BLACKSHER: Yes, sir.
262
DIRECT EXAMINATION RESUMED
BY MR. BLACKSHER:
Q. Did Mr. Tyler identify himself to you as an agent
of any other public official? A. Yes, he did.
Q. Who was that, sir? A. Congressman Bob Sikes
Q. You say you had one volunteer helper in this cam
paign, Mr. Taite? A. One volunteer helper, yes, sir.
Q. Could you tell us — A. C.C. Harvey.
Q. Could you tell us how many friends or helpers you
had observing the polls on election day? A. At precinct
29 the late Robert Walker. At precinct 27, Deacon Greer,
Gibbons Greer. And at precinct 28, George Powell, I
believe, was his name. At [367] 30, Attorney Wilson, who
was guiding the legal end of my campaign, was supposed
to have been someone there, to my knowledge, but there
was no anyone at precinct 29
Q. So you’re saying you had somebody watching three
of the four precincts anyway? A. Yes, sir.
Q. Okay, could you tell us if you attempted to
observe the counting of the votes at the precincts you were
watching? A. Yes. When the polls dosed, I tried to
find out from the clerk the number of votes in precinct 29.
Q. I’m sorry, I didn’t understand. You tried to find
out what? A. From the clerk the number of votes casts
at precinct 29. She refused to tell me. Mr. Walker and I
followed the clerk to the City Hall to see the votes counted
and when we got to the City Hall they allowed the officials
with the box to go in the City Hall.
MR. CATON: Your Honor — excuse me, Mr. Taite.
I’m going to interpose objection as to this type of
testimony. Evidently what he’s testifying about concerns
263
perhaps the conduct of the election or how the votes were
casts, and he would have a legal remedy at that time and I
don’t know the materiality or relevancy.
[368] THE COURT: You may take him on cross ex
amination on that point. Objection overruled. Go ahead.
Q. You may continue. A. And when we got to the
City Hall, we were told that Mayor Mason had won the
election by sixty votes and he had gone home. I asked the
question if we would be allowed in the City Hall to observe
the count and we were refused, so we didn’t get a chance to
see any of the count. We had to take their word for it.
Q. Now, you say that someone told you that Mayor
Mason had already won before the box from 29 was
counted? A. The election officials at the City Hall, yes.
Q. Mr. Taite, did you hear any radio broadcasts that
day concerning this campaign? A. Yes, I did. On
several occasions WCOA broadcasts between 3:00 and
4:00 o’clock that unless the white people get, at home, get
on the telephone and begin to call their friends —
MR. CATON: Your Honor, we’re getting into hearsay
again. A. You would have a black councilman next
day.
[369] THE COURT: He’s not within the hearsay ex
ception. This is not offered for the truth of what it is. It is
offered for the fact the statement was just made. Objec
tion overruled.
Q. You were interrupted. Would you please continue
with what was said on WCOA. A. The announcement
was being made over WCOA between 3:00 and 4:00
o’clock for the white people to get on the telephone and
call other white people within the Ward and ask them to be
sure and get to the polls and vote before 7:00 o’clock, “Or
264
we will wake up the next morning with a black city coun
cilman.” Because at that time I was leading Mayor Mason
by a substantial number of votes.
Q. Well, let me ask you, Mr. Taite, you said you went
from door to door, even to the white community, to the
houses of white people in the Ward. Weren’t you concern
ed that your presence might turn out a heavy white vote
against you? A. The method I used, I thought, would
be a low key. I didn’t go to these houses dressed as a poten
tial threat to a candidate from an intelligent point of view.
I went to these houses with common clothes on. I was
clean but they were common clothes and in talking to these
people I felt like that they would just discard [370] me,
disregard me as being a kind of a busybody rather than a
serious candidate, and that way I might not have the hate
group against me because of the fact that they’d figure,
“Well, he doesn’t look intelligent, he’s not going to be a
threat to anybody, so we’ll just overlook him.”
Q. Okay, Mr. Taite, after the election in 1955 were
there any changes made in the boundaries of Ward Two?
A. Yes.
Q. Would you tell us what they were and how they af
fected you. A. The boundaries within Ward Two was
moved further out to take in more white voters.
Q. Which direction was it moved? A. It was
moved east from the present Eighth Avenue intersection
over to —
MR. CATON: Your Honor, excuse me* I just noticed
he made a statement I wish to object to and make a motion
to strike. He stated the boundaries were moved east, I
believe, and then he concluded that by saying, “To include
265
more white votes.” That’s a conclusion of the witness that
he’s not qualified to make and I move to strike that.
THE COURT: You’re probably right, sir, but you [371]
could take him on cross examination. The rest of it —
MR. CATON: I would like to move to strike that state
ment from the record.
THE COURT: I’m going to let you cross examine him
to find out whether he knew in fact about it.
MR. CATON: Could I get a ruling on the motion?
THE COURT: The motion presently is denied.
MR. CATON: Yes, sir.
THE COURT: You may renew it at a later time, sir.
Aren’t you getting into beyond that area? We don’t need
testimony from him. We have testimony that from 1957 or
’56 that some boundaries were moved out, but are you get
ting into something already stipulated or agreed?
MR. BLACKSHER: I don’t think it’s stipulated. There’s
prior evidence, and if Your Honor please, the only rea
son —
THE COURT: Go ahead. I thought you were getting in
to something again. There may be some argument about
why it was moved but I thought the fact it was moved and
it took in people was stipulated. I may be wrong. Go
ahead, sir. I guess we’ll save time with you going ahead.
MR. BLACKSHER: I thought it would be helpful to
have in the record indication of what these [372] changes
that we talked about on paper meant to a politician on the
ground.
THE COURT: I had assumed it was stipulated. If it
wasn’t, go ahead.
266
MR. BLACKSHER: But, Your Honor, I’ll not pursue
the point. I think that’s all for the plaintiffs.
THE COURT: Cross examination?
CROSS EXAMINATION
BY MR. CATON:
Q. Mr. Taite, I believe you have run in just the one ci
ty council election, is that correct, in 1955? A. That’s
correct.
Q. And you never did run for any other political office
in the city. Did you ever run for any office anywhere else
in Escambia County, school board, anything? A. No, I
have not.
Q. You are aware that Dr. Spence ran for office at one
time and was unsuccessful and later ran again and was suc
cessful? A. Yes, I am.
Q. Was this the first time you had ever run for office,
any elective office? A. You mean —
Q. The ’55 election? [373] A. That’s the first
time, yes.
Q. Did you have any prior experience with any type of
political campaigns? A. Yes, I did.
Q. What type of experience did you have? A. I had
experience in working in campaigns with various can
didates over the years.
Q. Which various candidates? A. County commis
sioners, the sheriffs department, the legislature.
Q. And these were white candidates or black can
didates? A. They were white candidates.
Q. So you got along okay with some of the white peo-
267
pie in the community also? A. We didn’t get along with
them in a sense. It was a forced situation where you
couldn’t run and you had to work with somebody in order
to be able to —
Q. You were forced to work in the campaigns? Is that
what you’re telling us? A. Do what?
Q. You were forced to work in their campaigns? Is
that what you’re telling us? A. Mentally, yes.
Q. Mentally? [374] A. Yes.
Q. Could you explain that a little more to me, how they
go about mentally forcing you to work in their political
campaign. A. Well, that’s easy to explain. When you
don’t work in campaigns, then you don’t get a chance to
know the people who is going to control the government.
So in order to know the people that’s going to control the
government you have to be active in the campaign.
THE COURT: That’s all you meant by that
statement? A. That’s all, yes.
Q. But you voluntarily worked for these other can
didates?
THE COURT: Nobody forced you to do it? You were
doing it yourself because you wanted to know the can
didates better? A. I wanted to know the candidates in
order that I could survive. My job depended on them.
Q. Incidentally, your job, did you say you worked at
the Naval Air Station? Is that the job you’re talking
about? A. Not necessarily. I worked for the Naval Air
Station. I worked for the school board for twenty years
and I worked at some private jobs and I run businesses
[375] here. So I’ve had a variety.
268
Q. Yes, sir, you’ve had several, but immediately prior
to the 1955 election — A, No, I didn’t work at the
Naval Air Station.
Q. Okay, when did you work at the Naval Air Sta
tion? A. I worked at the Naval Air Station about a
year before. I left the Naval Air Station about a year
before I run.
Q. And were you under the Civil Service System at the
Naval Air Station? A. Yes, I was.
Q. And how did your employment terminate? A. It
terminated on the premise of intimidation, bringing in cer
tain accusations against a man that had no witnesses to
prove that it was right or wrong, simply because I asked
for my rights as a citizen at the Naval Air Station to be
able to work at a job that the white was working, mean
ingful jobs that paid good salaries, and was refused, and I
lost my job as a result of that. But they camouflaged it and
said it was insubordination.
Q. They camouflaged it and charged you with in
subordination? A. Right, and I’ve never been able to
straighten that out.
[376] Q. So you were discharged for insubordina
tion? Is that what you’re telling us? A. No, I’m not;
I’m telling you that’s what they said.
Q. I see. Did you have any type of hearing at the
time? A. Yes, I did.
Q. And what type of hearing did you have? A. I
had a hearing before an all-white board of committees at
the Naval Air Station, a white prosecutor and white jurors
and no blacks.
Q. I believe you said there was no witnesses against
you. A. No witnesses against me?
269
Q. Yes. A. I don’t remember saying there was no
witnesses against me.
Q. Well, did anybody testify against you at that hear
ing as to your insubordination?
A. All of the whites testified against me, yes, so cer
tainly.
Q. And you were allowed an opportunity to present
your case? A. I was not allowed an opportunity to pre
sent my case. They refused me the opportunity of having
legal [377] counsel. They refused me the opportunity of
representing myself. They said I could get some
employee off the Naval Air Station to represent me but I
could not have a lawyer.
Q. They told you you were denied the right to have a
lawyer? A. They denied me.
Q. Either that, or did they refuse to pay for
it? A. They denied me.
Q. Did you ask them if you could hire your own at
torney? A. Yes, I did. I even named the attorney, and
they went far enough to tell me that John M. Coe was a
Communist and he’s not allowed on the station. That was
the man I was going to hire.
Q. Did they say you couldn’t hire another attorney
besides Mr. John M. Coe? A. Yes, they did. They told
me I couldn’t have another attorney to come on the sta
tion.
Q. Who is “they”? A. Beg pardon?
Q. Who is “they” that’s telling you all these
things? A. Mr. Foster.
[378] Q. What position does he hold with the Naval
Air Station, or did he hold? A. He was the top man at
270
the Naval Air Station in the civilian capacity. Mr.
Vinyard, who was his assistant; Mr. Vinson, who was
assistant to him; Mr. Villar, who was the immediate super
visor.
Q. And you’re telling us that all these top officials at
the Naval Air Station under the Civil Service System told
you you could not have an attorney to represent you?
A. Yes, they did.
Q. And you subsequently decided to run for the City
Council of the City of Pensacola, is that it, after you were
terminated? A. Yes.
Q. Could you briefly go over again your campaign in
that particular election? I believe you said you had one
volunteer helper. A. One volunteer helper.
Q. Is there any particular, did you ask other people to
help you in the campaign or just nobody else
volunteered? A. I asked a few people to help and the
most of the people that I asked to help was afraid they
might lose their job if they helped me campaign.
* * * * % *
[399] REDIRECT EXAMINATION
BY MR. BLACKSHER:
Q. Mr. Taite, have at-large elections in the city elec
tions as well as in the school board and county commission
had any effect on your not offering as a candidate again
since 1955? A. Yes.
Q. Why is that, Mr. Taite? A. Because of the ex
pense —
THE COURT: You’re plowing new ground, aren’t you,
Counselor. You’re opening up a new area.
271
MR. BLACKSHER: No, sir. There was testimony,
there was cross examination of Mr. Taite Concerning his
willingness to offer in the election that he did run in and he
was not afraid to offer, and why he did, and I was just try
ing to close that up, why he was willing to offer.
THE COURT: I’ll let you go ahead but if you get them
on their feet again, then you do. Proceed, sir.
Q. Excuse me. You may answer it, Mr. Taite.
A. Because of the expense incurred in an at-large elec
tion and the chances of winning, would discourage
anybody.
* * * * * * * *
TESTIMONY OF OTHA LEVERETTE
[401] OTHA LEVERETTE, called as a witness by the
plaintiffs, being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. MENEFEE:
Q. Reverend Leverette, were you sworn the first day
of trial? A. Yes, I was.
Q. Would you please state your name and address for
the record. A. I’m Reverend Otha Leverette, 1541 East
Leonard Street, Pensacola.
Q. Thank you, sir. And at what church are you
pastor, please sir? A. Saint John Devine Baptist
Church.
Q. How long have you been there? [402] Fourteen
years.
Q. When did you first come to Pensacola? A. The
second time, 1964.
Q. Okay, sir, and when was the first time then?
A. Nineteen forty-one.
272
Q. How long were you in Pensacoia at that time?
A. I was here from ’41 until ’48.
Q. Okay, sir. Reverend Leverette, have you offered
yourself as a candidate for public office? A. Yes, I
have.
Q. And when was that and what position? A.
Nineteen seventy for the school board, district four.
Q. Place Four? A. District Four.
Q. District Four. Were you a candidate in the
Democratic Primary? A. No.
Q. Would you please explain. A. Well, I didn’t
have any opposition in the first election, in the primary. I
didn t have opposition till I got to the general election.
THE COURT: Well, you did run in the primary without
opposition? Is that what you’re saying?
[403] A. I didn’t have any opposition.
THE COURT: I know, but you were entered in the
primary? Yo had no opposition?
A. Right.
THE COURT: You ran in the primary as a Democrat or
Republican?
A. Democrat.
THE COURT: I see. And you had no opposition in the
Democratic primary?
A. Right.
THE COURT: And then you had opposition in the
general election?
A. Yes, sir.
THE COURT: All right, sir.
273
Q. And who was your opponent in the general elec
tion? A. Mr. Leeper.
Q. I see, sir. And what was the result of that
race? A. Well —
Q. Who won? A. He won.
Q. Okay, sir. He was the Republican nominee?
A. Right.
Q. Okay, sir. Have you ever run for public office
[404] other than this one time? A. No, that was the
first time.
Q. Okay, sir. Have you ever run for public [404] office
other than this one time? A. No, that was the first time,
on the school board and I felt like there should be a black
on the school board.
Q. Okay, sir. Why did you decide to run for the school
board as opposed to county commission or perhaps city
council? A. Well, at the time I just decided to run for
the school board because I had, well, I had a wife teaching
in the school system, had sons and daughters teaching in
the school system, a lot of members teaching in the
school system, and I just thought that I would run.
Q. Okay, sir. How did you assess your chance of win
ning when you offered yourself as a candidate? A. Well, I
didn’t have, I didn’t feel like I had much of a chance and
what I did, I ran a low key campaign, and to tell you the
truth, they really didn’t know who I was.
Q. Who is “they”? A. I mean the whites. They
thought I was white.
MR. RAY: Objection, Your Honor, to hearsay.
THE COURT: Objection is sustained to that one and
that last answer is stricken from the record.
274
Q. Reverend Leverette, by the time of election was it
public knowledge that you were a black running for of
fice? A. Say what now?
MR. RAY: Objection to hearsay. That’s the reverse side
of the coin.
THE COURT: When you say it was public knowledge, I
don’t see how you can.
MR. MENEFEE: Well, Your Honor, I think we had a
stipulation that pictures were regularly published in the
paper.
THE COURT: You have that stipulation in there
someplace but now you’re asking him to get it to an area
which is just completely hearsay. Objection sustained.
Q. I’ll go directly to that. Reverend Leverette, by the
time the election occurred was your picture published in
the papers or campaign circulars? A. No, not my pic
ture, and I never did, I never did get on television. They
tried to get me on television and I never did get on televi
sion. I stayed off television.
Q. Was your picture ever published in flyers put out
by the Democratic Party? [406] A. yes, my picture was
published by flyers here, “Meet the Democrats.”
Q. I see. Okay, sir.
THE COURT: What kind of a publication? Oh, that
was just campaign literature that was passed out at the
time?
A. This was just before the general election.
THE COURT: Yes, sir.
A. Probably a week before.
THE COURT: Yes, sir.
Q. And that was put out by the Democratic Party?
A. Right.
Q. Okay, sir. Reverend Leverette, would you describe
your efforts to raise funds to conduct your campaign,
what success and difficulty you had.
A. Well, I had a hard time trying to raise funds for my
campaign. I’m pastor of a large church and our members,
they helped me to raise campaign money. For example, I
called several places. I called some of the banks and was
telling them, you know, I’d like to have a donation to run
for public office, and what they told me, said, “We ain’t
going to waste no money up on you,” and they knew me.
MR. RAY: Objection, Your Honor; hearsay.
THE COURT: He is getting a little bit far on [407] this
one too.
MR. MENEFEE: Yes, sir.
THE COURT: That was hearsay, of course.
Q. Yes, sir. How much were you able to raise to con
duct your cam paign , R everend L ev ere tte ,
approximately? A. Approximately twelve hundred
dollars.
Q. I see, sir. How large is your church, Reverend
Leverette? A. We have about a thousand on the roll.
About six hundred fifty attend morning services every
Sunday morning.
Q. Okay, sir, how did you conduct your campaign in
the black community? How did you approach blacks in
the community? A. Oh, I just asked them to vote for
me and I said to them that I was running. I said, “You vote
for the best man.” This is what I done, just get out and
asked them to vote. I went from door to door.
275
276
Q. Okay, sir, did you also solicit votes in the white
community? A. Yes, I did.
Q. How did you do that? A. Well, I had some
friends, for example, that was in 1969, the last of ’69.
There was a meeting held in Cordova Park by Dr. Ralph
Chandler and several other [408] persons, and Reverend
Brooks and Reverend Matthews and Mr. Marshall and
their wives and myself, we was invited. So in this meeting
there I expressed to them that I had, I was going to run for
school board, and Dr. Ralph Chandler, he wanted to run
for school board. After he decided I was going to run he
said, well, he wouldn’t run and he said I didn’t have a
chance, and so I said to him, I said, “Well, I’m going to
run, chance or no chance. I’m going to run.” So we had
this meeting and out of this meeting I just made up my
mind I was going to run.
Q. Okay, sir. Was your race a factor in your defeat in
this election? A. Yes, I know it was. Up until, as I said,
up until, just up until this went out, maybe I would have
won the election up until this went out but after this went
out I had members who works at Monsanto and the paper-
mill and Navy Yard and different other places and people
in other churches, and after this went out, when they say
that I was black on this picture here, they come back and
said to me, said, “Reverend,” said, “They said they’re not
going to vote for you because you’re black,” and they
thought I was white and they said they changed their mind
and they didn’t vote for me.
Q. How did other Democratic candidates fare that
year on the Democratic Ticket? [409] A. Well, all of the
Democrats won but two on here.
Q. Who else lost? A. Mr. Ray Meador, he lost, and
Mr. Clyde Touart. All of the others, they won.
277
THE COURT: That was three of you? You were on
there too?
A. That’s right, I was on there too.
Q. What offices were those other two Democrats run
ning for? A. One of them was running for sheriff, I
believe Mr. Touart, and Mr. Ray Meador was running for
state representative.
Q. Okay, sir. Was there also being held at the same
time the governor’s race? A. Yes, it was, 1970.
Q. And who was the Democratic nominee at that time
for governor? A. You mean for governor?
Q. Yes, sir. A. Governor Reubin Askew.
Q. I see. And he was successful? A. Yes, he was
successful.
Q. With this experience have you considered running
again for at-large election in the county? [410] A. No, I
wouldn’t run, not unless something changed, not
like it is now, because I wouldn’t have a chance because
they know who I am now. I can’t fool them no more now.
They know who I am. And then I’ve been discouraged so
much by my own family and my membership. They said
no use of running, say no use of running, no blacks can
win. We have only one black, well, two blacks, have ever
been elected to public office here in the county.
Q- Okay, sir. Thank you. During the campaign did
you encounter any difficulty encouraging black citizens to
turn out and vote for you? A. Black citizens?
Q- Yes, sir. A. No, I don’t believe so, not the black.
Q- Okay, sir. A. I received some phone calls. I
^°nt know who it was, though. I received several phone
cahs and still receive some phone calls.
278
Q. Just a moment, sir. During the campaign did you
receive any threats or harassment? A. Yes, I did.
Q. Would you please tell us about those. A. I
received several phone calls saying, saying, “You’re too
smart, nigger, you got to die.” Said, “Nigger, [411] you’re
going to have to get out of town. You must not have been
born here, Nigger. You must have come from somewhere
else.”
Q. Okay, sir. A. And then just hang up. I don’t know
who it was. They’d just hang up.
Q. Okay, sir. Did you approach any white political
leaders for assistance during your campaign? A. Yes, I
did.
Q. And what sort of response did you get?
A. Well, Sheriff Bill Davis, he was in office then. He
helped me some and I helped him some. I didn’t get any
finances out of him but just, you know, we kind of work
ed together.
Q. Did you, the night of the election when the results
were coming in, have, what expectation did you have the
night of the election when the results were coming in as to
your success? A. Well, 1 had high hopes. I was leading.
THE COURT: Counsel, with all deference to you, any
man running for office always has high hopes and high ex
pectations. I don’t know what that’s got to do with
anything about this case.
MR. MENEFEE: Okay, sir. Judge, I think there was a
particular incident that Sheriff — [414] Williams and
Don Spence, both of whom were elected to the city coun
cil. How do you account for their success, very briefly?
Mr. Williams has won twice in opposed races and Dr.
Spence has been successful one time for city council. How
279
do you account for their success in the city elections?
A. Well, before -
MR. CATON: Your Honor, before the witness answers
that question, I don’t know that he’s been qualified as an
expert to give such a political opinion as to how he ac
counts for it.
THE COURT: I don’t know that it’s calling for expert
testimony. This is giving what he believes is the reason for
it, I believe. We can let him answer and you can move to
strike it. If he gets to an area he can’t testify you can move
to strike.
MR. CATON: If I could just state my other grounds.
Even if it’s a nonexpert opinion then it has no relevance in
this case.
THE COURT: I’m going to let him answer the ques
tion, sir.
Q. Thank you, sir. Go ahead, Reverend. A. Well,
Hollice Williams was appointed first to the city council.
After he was appointed to the city council he went in and
Hollice Williams doesn’t, he just
* * * * * * *
280
TESTIMONY OF DR. DONALD SPENCE
[460] DR. DONALD DALE SPENCE,
Called as a witness by the plaintiffs, being first duly
sworn, testified as follows:
DIRECT EXAMINATION
BY MR. MENEFFE:
Q. Would you please state your name and address for
the record. A. Donald Dale Spence.
THE COURT: What was the name? A. Donald Dale
Spence.
THE COURT: You said F. L. Henderson.
DEPUTY CLERK: I’m sorry, Your Honor, somebody
gave me the wrong name.
THE COURT: This is Dr. Spence?
A. Yes, sir.
Q. Your address, Dr. Spence? A. 617 North
DeVilliers Street, Pensacola, Florida.
Q. Okay, sir, what is your occupation? A. I am a
dentist.
Q. Okay, sir, when were you admitted to the practice
of dentistry? A. Nineteen sixty.
Q. Where did you attend high school? [461] A.
Johnstown Catholic High School, Johnstown; Penn
sylvania.
Q. And college? A. Morris Brown College, Atlan
ta, Georgia.
281
Q. Graduate school? A. Howard University,
Washington, D.C.
Q. When did you finish at Howard University, please?
A. Nineteen sixty.
Q. Nineteen sixty? A. Yes, sir.
Q. When did you come to the Pensacola area?
A. I came to Pensacola in 1950.
Q. What occupation did you have prior to becoming a
dentist? A. I’ve been an insurance agent in Pensacola.
I’ve been a high school teacher, a high school principal,
Naval Air Station apprentice, Naval Air Station licensed
mechanic and a practicing dentist and a newspaper
reporter.
Q. Thank you, sir. Dr. Spence, would please tell us
on what occasions you have offered yourself as a can
didate for public office. A. I have been a candidate for
public office in Escambia County, Florida, on three
separate occasions. [462] I’ve run for the city council on
Pensacola twice and I ran for the Escambia County School
board once.
Q. Okay, sir, and when was the first time that you ran
for the Pensacola City Council? A. Oh, I think it was
1964.
Q. Sixty-four? A. Sixty-four or sixty-three.
Q. Okay. And when was the second time that you ran
for the Pensacola City Council? A. I think it was about
‘75, ‘74 or ‘75.
Q. Okay, sir.
THE COURT: You said the county commission, I
believe, Doctor. A. No, sir, I said the county school
board.
282
THE COURT: You ran twice for the county commis
sion? A. No, 1 ran twice for the city council.
THE COURT: City council. Thank you, sir. I was a lit
tle mixed up. And once for the school board? A. Once
for the school board.
THE COURT: All right, sir. The first time you ran for
the city council was when, did you say? A. Sixty-four.
THE COURT: All right, sir.
MR. MENEFEE: Excuse me, Your Honor, that was
[463] 1963. I think that’s correct.
THE COURT: Do you accept his
correction? A. Yes, sir. Yes, sir, ‘63 or ‘64 term,
something like that.
Q. And then in 1976 did you seek election to the coun
ty school board? A. Yes, I did.
Q. Dr. Spence, have you been active in politics other
than on these three occasions? A. Yes, I’ve served on
campaign committees for Haydon Burns and Senator
Stone and I’ve tried to help Judge Joseph Hatcher and any
number of black candidates that have run I’ve helped, so
I’ve been active in politics, either running or trying to get
people registered to vote or trying to instruct people in the
need for voting or trying to help other candidates get
prepared. So I think that all of my life in Pensacola I have
been concerned with politics and I’ve been very much ac
tive in it.
Q. Okay, sir. For the record, are you black? A. Well,
1 guess so. 1 really, the term “black” eludes me in a lot of
cases because I think that being perfectly candid, when
you say black, I’m a Negro.
Q. Okay, sir. A. And to me the term, classifying all
283
blacks, [464] all Negroes as black, to me is not a good
term because when I was a child coming up if you called all
Negroes, “You are black,” you would get a black eye from
it. I was taught by my mother and father to call people by
their names and the term, “Are you black,” and all of the
blacks believe this, it doesn’t ring a good bell with me. So
I’m a proud American Negro.
THE COURT: You make the distinction between
Caucasian and Negro races and not between black and
white races? Is that what you’re telling me? A. That’s
what I’m saying.
THE COURT: Thank you, sir.
Q. Thank you, sir. I just wanted it to reflect in the
record. Dr. Spence, you’ve just told us you’ve been active
in some efforts to encourage voter registration. Would
you please describe some of your efforts there and give us
some dates when you were active. A. Well, you can just
name all of the years and I can look out in the audience
and I can remember the weekend that Reverend Ken
drick’s wife and myself and Miss Sue Lewis sitting over
there and some of us put approximately nine hundred
minority voters on the books, going house to house and so
forth.
THE COURT: That was in a voter registration drive?
[465] A.Voter registration drive under the auspices of
the NAACP. And I see Mr. McCray. We tried some of
the, we had a black Jaycees here some years ago and we
started Little League baseball and we also pushed off into
a voter registration drive. I think that every time you meet
with a group of ministers we talk about what can we do to
get people registered to vote. So I think for black profes
sional man in Pensacola or Escambia County, I think that
your whole life, if you believe in politics, I think every day
284
you live the life of trying to upgrade our people into
registering and voting. And I think that you just are in
volved almost intimately with all of your contacts, your
social clubs, your fraternities, your churches, just a cons
tant thing, “We need to vote, we need to take care of our
heritage.”
Q. Okay, sir. Dr. Spence, what prompted you to seek
election to the city council in 1963?
A. Well, when I came to Pensacola, I came to Pen
sacola as a teacher, insurance man, and became a teacher,
and one of my students was Charlie Taite and Charlie
Taite at the Adult Veterans School, I’d heard rumors
down through the years in Pensacola of the great injustices
that were done at a particular time. I don’t know the
details of it. It was sometime in the space of first black
man to run for an office in the City of [466] Pensacola was
given a great injustice due to the fact that when he went
to bed at night there was almost a tie race or the black can
didate was way ahead of a very knowledgeable, influential
white person and the next morning when he woke up, the
election was all, you know, the other way around and the
black candidate, who happened to be Charlie Taite, was
soundly defeated. And whenever I would have a social
studies class, in those days in high school you taught
science, English, math, whatever, you taught the course
out of secondhand books but you had to teach the course,
and I d say, “let’s have a social studies discussion.” Then
automatically it would be, “Well, what about whites and
blacks in politics. When a black person votes, does it really
count?” And then I would say, “Why, sure,” and I could
quote the list of presidential elections where one vote
turned the election around and so forth and say, “Your
vote does count,” and invariably I’d be slapped in the face,
285
“Let me tell you one about what happened in Pensacola,”
and then that Charlie Taite got beat and the election was,
they thought, taken from him, and they said, “Well, Doc
tor, Mr. Spence, why don’t you, you know, run for elec
tion for something?” And I think down through the years
this was in the back of my mind. So I went off to dental
school and came back and when I [467] came back there
was a cry in Pensacola, “Black people need to get involved
in the political aspect. You need to do this, you need to
do that. Dr. Spence, you are the one to do this. Dr.
Augustus put out the school board suit. Mr. Jones did
this. Now it’s your turn to pay your more or less dues to
the community. You can’t be hurt. You work for yourself.
I can’t do it. I work for the City of Pensacola. I’ll lose my
job. 1 can’t do it. I work for the school board. They’ll fire
me.” Or if it’s a lady, “I work for Mrs. Anne, and she
wouldn’t have me back if I do so and so. You are the one.
They can’t get you, Doc, so you run and we will back
you.” So I had an innate desire to be in politics. I love my
country and I love Pensacola and this county and 1 think if
I’m going to make my living here, if I am to take from
what Escambia county has to give me, 1 think that I owe it
to Escambia County to serve on some of its boards to help
set the policies of this county. I think it’s every black man’s
duty in this county to register and to vote and to run for
public office one time in his life, whether he’s beaten or
not. I think he should run. I think you should try to give
something back to the county that supports you. I make
my living here. I reared my children here and I want to
help set the policy here, and I did this out of a commit
ment [468] to my county and my country.
Q. Dr. Spence when you made this decision to run,
how did you assess your chances? A. Well, when I
ran for city council the first time, you’re speaking of?
286
Q. Yes, sir, 1963. A. Well, when I ran at that time
there weren’t as many blacks registered to vote as there
were now. There was still a certain fear possibly in the
hearts of some people from the old school about register
ing to vote and getting involved and so forth. You’d see
them at the poll, you know, but I thought the people I
knew, and I thought I was a pretty nice fellow and easy to
get along, and I thought I was reasonably intelligent and I
thought I could read and write and I thought that I could,
you know, contribute to the county, I mean to the city
council. I also was aware of the fact that the man I as run
ning against was a pretty strong candidate. I thought that I
would run close under him at that particular time.
Q. I see. What were the results? A. If I’m not
mistaken I think I ran in a runoff with him and I think he,
I ran in the runoff, I’m pretty sure, and he beat me in the
runoff. I got a runoff with him and he beat me and he
went on to become the Mayor of Pensacola.
[469] Q. Dr. Spence, how did you conduct your
campaign in 1963? What sort of media did you use? How
did you contact the voters? How did you raise funds and
what success did you have? A. Well, I didn’t raise
many funds. You know, it isn’t too fashionable, not too
fashionable, I would say, among people in the lower in
come brackets to give a lot of money to political cam
paigns. They’ll give you their vote but at that first election
I don’t think I had much money. I think the way I got
around, I went to my fraternity, my church, my friends,
and asked them to pass the word around, “Let’s get some
pride up,” putting me there. 1 didn’t know many people of
the other race to talk to except the ones I worked with at
the Naval Air Station. No, I wasn’t working at the Naval
Air Station, excuse me. Patients that I would see and peo
ple that you would meet in just your general walk through
287
life. So I didn’t have any money other than what I had in
my own pocket for this political campaign. I probably
have, as I did in all my campaigns, I made the cardinal sin
of not attacking my opponent. I’ve never attacked another
opponent I’ve run against. When I ran for the city council,
I wanted the citizens of Pensacola and Escambia County
to elect me, and I’ve said this on all offices I’ve held. I
don’t want you to think of me as just being a [470] Negro
candidate on a board. I want you to think of me as
a thinking person who can do something for you. I don’t
want you just to say, “I’m going to vote for him because he
lives on my street.” I want you to say, “I want to vote for
him because I saw him figure out this problem. He did
pretty good.” So I never attacked anyone that I ran
against. I knew plenty of things that I could have used and
they probably knew some things they could use but in any
of my campaigns I never had any personal attacks and
neither did I make personal attacks. I just stated, “I
wanted to be your candidate and I’m qualified. I’ll do a
good job and I’m alert,” and so forth, and that’s the way I
campaigned.
Q. Okay, Dr. Spence. When the results were in, and
now looking back on it, how do you assess the fact of your
race as it interacted into the results of the
election? A. Well, I’ve made many mistakes in my life
and I made a very big mistake right after the first time I
ran for city council. I remember very vividly I was called
on the, I was at a victory party and a friend of mine,
Calvin Harris, who died, and we were having a sort of a
semi-celebration, and I remember, I don’t know whether
Mr. Morgan called me or someone from WBOP called me
and they said, “Dr. Spence, how do you feel? You’ve just
been [471] beaten for your city council election. How do
you feel at this time?” And I became very, very indig
288
nant because I said that in somewhat frenzy, I remember
what I said and they washed my face with it for fifteen
years, I said, “If the black people in this community would
get up off their seats and vote that we could turn this coun
ty around and I could have won this election if you had
done what you’re supposed to.” And of course I didn’t say
it as nicely as that. And of course my friends told me
about that down through the years, “Dr. Spence, so and so
and so.” But lately after I became elected to office and I
had access to records of things I found out that the black
people in Escambia County, and I must apologize for my
years then, the black people in Escambia County can be
applauded because based on percentages they’ve done as
well as anyone else in voting. Every race that I ran for elec
tion, my people came forth and voted for me in black or
nearly ail-black precincts to the tune of approximately 94,
95, 96 percent. When a white candidate ran in the same
precinct when there was no black candidate running, they
voted three or four percentage points lower. In the white
precincts I didn’t do as well so I must apologize to my
black constituency. They voted, say on, based on a hun
dred voter basis, when I was running or some of the other
black candidates were running, they [472] would vote 28,
29 percent, anywhere bet wen 25 and 29 percent of the
black registered voters. The white registered voters in this
county vote 25, 26 percent. So I’m saying that when I was
running black people came out. They voted to their
capacity, so I apologize. The black people did stand
behind me. They did vote, but I didn’t have a chance with
just those five precincts.
Q. Doctor, back to my question. Was your race a fac
tor in your defeat in that election? A. I would think so.
Q. How would you describe it, as a major factor, a
minor consideration? A. I would make a statement in
289
my personal opinion if the Lord himself was black and ran
for political office in Escambia County he’d be defeated.
Q. Okay, sir. Dr. Spence, let’s move on to the most re
cent city council race. You were appointed to the city
council in 1974, I believe. Would you please tell us how
that came about and then we’ll get into the election
itself. A. Well, I don’t know exactly how, If I may
digress, I don’t want to take up too much of your time but
I think law is probably something like history. You’ve got
to go back and go back to how it first came. The first time
that, when right after my defeat for the city council, [473]
two or three months later or whatever time frame it
may be, there came a vacancy on the City Council of Pen
sacola. The particular candidate that defeated me called
me on the phone and he said, “Dr. Spence,” he said, “1
respected you because of the fact that when we had our
race you didn’t attack me as a black man attacking a white
man because we were running for the same job and we just
talked about what you could do and what I could do.”
And he said, “And I’ll always respect you as a gentleman
and I’ll always respect you as a man and now I want you to
do something for the City of Pensacola.” He said, “There
is a vacancy on the city council and there are certain peo
ple in the community feels that it’s time that a minority
takes its place in the politics of this county and we feel that
if we could get a black person appointed to the city council
at this time there would be a fairly decent chance that he
would be elected in the next election and we would have
our foot in the door of Escambia County-Pensacola
politics. Would you accept the job on the particular city
council?” I told him, I said, “Well, you know, I’m a Sagit-
tarian and I don’t particularly like gifts but I probably
would, you know, consider it, if you gave me the oppor
290
tunity. I’d hate to say that I couldn’t get elected and I had
to be appointed.”
Q. Excuse me, Doctor, about what time frame is this?
[4 7 4 ] A. I would say this is right after I ran for the
city council and lost. I would say it would have to be about
a year. All right, they checked it out and they come to find
out that District Five runs from “A” Street, District Five
runs from “A” Street west to the end of the city line and
District Four picks up at “A” Street and comes east, going
east to, I think, all the way over to Sixteenth. I’m not sure.
I think, all the way over to Sixteenth. I’m not sure. I think
that’s the frame. So they told me that since I live one block
east of “A” Street that I could not be appointed to the city
council because the man that left the city council was from
District Five. So the gentleman asked me then, “Will you
form a committee that will search the black community to
find a man that would be acceptable to be appointed to the
city council?” And we had the meeting in my office on
DeVilliers Street. Let’s see, I don’t know anyone here that
was in that particular meeting but I know we came up with
the candidates for this particular office. We recommend
ed, I think it was Benno English and we recommended
Hollice Williams and we recommended the little fellow, I
forget his name, but anyway, recommended four persons.
So I called the gentleman back and told him we’d come up
with these four people, and he said, well, Hollice Williams
was well [475] known and quite acceptable and that there
would be a possibility if there were no, anyone in the
black community that had anything against this, that more
than likely they could get it through that Hollice would be
appointed, and that’s when Hollice Williams was ap
pointed.
Q. Now, that was 1971 that he was appointed?
A. Was it?
291
Q. Or seventy? A. Was it?
Q. Nineteen seventy? A. Well, whenever it was,
the same man called me in the time frame. So after Hollice
served on the board then the other vacancy came up. Mr.
Hagler resigned to run for the House of Representatives.
There came another cry that, “This is in your district and
would you serve if you were, you know, appointed?” And
then I think it came down to the city council has to vote on
whoever it was and then one city councilman put me up. I
don’t know who put me up for appointment but then
another city councilman put another candidate up and
then the city council voted between the two of us and I
think I won six-four on the first ballot and unanimous on
the second and then I took my place on the city council.
Q. Okay, sir.
THE COURT: Now, was the other man white or [476]
black, Doctor?
A. The other fellow was white.
THE COURT: So that in that case in that city council
the black man came out ahead?
A. In that particular case, yes. I did win the appoint
ment.
THE COURT: Yes, sir.
A. Over the same candidate that I ran for election, I
ran against him in the election the following year.
THE COURT: You had run against him in the follow
ing year?
A. I ran against him right after I was appointed. Then
the next time I had to run for city council I ran against
him.
292
THE COURT: Did you beat him that time?
A. I beat him that time.
THE COURT: Then it is not true that a Ne gro cannot
get elected here?
A. Well, in this particular case I don’t think that, the
only reason this man had any chance at all, he had the
right family name. When I first started to run against him,
they said, “You won’t be able to beat him because the
Gilmore name is a longtime Pensacola name and you’ll get
beat just because of the name.” And they [477] come to
find out he was not from the local Gilmores and he wasn’t
very well known and he had switched from two or three
jobs and —
THE COURT: Race was not a factor in that election
then?
A. In that particular race I don’t —
THE COURT: Or was it? You were elected?
A. I was elected so I would say I didn’t get all the votes
because I was black because if I’d been white I would have
got them all. Now, I think I beat him by a thousand.
THE COURT: You got most of the black votes but you
also got some white votes?
A. I’d say I carried five precincts.
THE COURT: You carried five?
A. Five precincts that had more white people in it than
black.
THE COURT: So that there were white people voting
for you?
A. Right.
THE COURT: And not voting for your white oppo
nent?
293
A. But there were eight precincts. There were eight
precincts, all-white precincts, that voted for a man that in
my opinion had no business in the race. Eight [478] all-
white precincts voted for this gentleman and they knew
nothing about him. Only five precincts, I don’t know
whether I carried the five, I know I scored votes in those
five precincts, but there are thirteen, in Pensacola there
are thirteen predominantly all-white precincts and in those
thirteen precincts I lost eight of them to a man that
nobody in town knew that well.
Q. And you were running as an incumbent at that
time? A. I was running as an incumbent.
Q. Dr. Spence, who was it from the city council or
leadership in the city that was interested in seeing a black
appointed to the city council, what individuals? A. Let
me see. I would think that, I don’t know, I’d hate to say.
My gut feeling would be that possibly Barney Burks -
could I call on counsel over there, Mr. Caton? I think it
was Mr. Burks was the one I thought, probably Mr. Burks
and Howard Mitchell and Carl Mertins and Vince
Whibbs. I think those were the four that wanted it.
Q. Now, Dr. Spence, when you were relating the
meeting that you had in your office to suggest names to
Mr. Burks and the others - ? A. No, no, you’re talking
about my appointment [479] or Hollice’s?
Q. Well, I assume that it was the same individuals? A.
No.
Q. Okay, the individuals you just named, Mr. Burks
and the others, when was that? A. That was for when I
was appointed.
Q. 1 see. Who was it when Mr. Williams was ap
pointed? A. Mr. Williams was appointed, it was
Charlie Soule.
294
Q. Okay, sir. A. Charlie Soule and his group.
Q. When you were relating that meeting, you said that
you and the others who met with you attempted to come
up with a list of three or four black citizens who were ac
ceptable. What do you mean by acceptable? A. Well, I
would say to be acceptable would be a person that had
some name recognition in the white community and some
one that they just didn’t detest and someone that the
could live with and someone that quite a few of them knew
and someone that had an outside chance of being
reelected, and I would think if you would just name some
one that no one, someone that just walked in to town
and no one knew him and he didn’t have any roots here
[480] at all, that wouldn’t particularly be a good can
didate, or someone that had skirmishes with the police or
different things like that. So we thought it would have to
be someone that was more or less an upstanding,
outstanding citizen.
Q. But did you consider black leaders who had been
active in civil rights movements as being acceptable?
A. Well, I know, I don’t think that the history of the
town speaks that our black leaders that have gone out on a
limb, will never be appointed to boards, certainly not to
elected official bodies. We’ve had many opportunities to
appoint some of our outspoken leaders and they’re never
appointed.
THE COURT: Doctor, it’s true too that there haven’t
been many Ku Klux Klan members appointed to those
boards either?
A. Well -
THE COURT: I guess you see what I’m driving at, sir.
People like yourself and Hollice Williams who were not so
way out front trying to promote blacks regardless of
295
merit, perhaps, perhaps not the right word, but were really
so aggressive, may have had problems getting appointed,
just like people who represented the other end of that spec
trum, for example, I haven’t heard [481] of many of them
getting appointed. But people like yourself and
Hollice Williams have been appointed, have you not?
A. Yes, I was appointed.
THE COURT: I give you another example. If General
Chappie James had come back here and wanted to run for
office is there any doubt in your mind he would have got
ten by far the majority of votes in this county, both black
and white? A. I don’t believe he could have won a
county commissioner race.
THE COURT: General James?
A. No, sir. He might have won a House of Represen
tatives race but I doubt if he could have won a county
commissioner’s race.
THE COURT: Why do you say that?
A. He would have been beat before he got above Nine
Mile Road.
THE COURT: Why do you say that?
A. You might have had other people from the whole
district who would vote for him on the merit that he con
tributed to his country.
THE COURT: Why would he be elected to the House of
Representatives?
A. You would have a wider spectrum.
[482] THE COURT: The same people would vote for
him. The House of Representatives members are elected in
the same election as the county commissioners.
296
A. Aren’t the House of Representatives elected from
some of the other counties too? Say whether Chappie was
running for Bob Sikes’, he may come from Okaloosa.
THE COURT: It may cross the line
A. It would cross the line. The point I’m trying to
make here, Judge, I don’t know about how many Ku Klux
members are appointed to some boards. I’ve been around
some boards when they said that, well, they look at them a
long time, but, see, I would say that Chappie might could
win with the Eglin population voting for him and some of
the Fort Walton people, some of these people that have
moved down from Northern areas and so forth. They may
just take the man at his image, but I’m saying from the
Nine Mile Road to the Century line there’s not a chance
for a black candidate. When I ran for school board and I
was in that hospital bed, they came down and told me,
said, “Dr. Spence, you lost the election. How do you feel
about it?” I said, “Wait a minute, wait a minute, how am I
going to lose the election? They haven’t counted District
Four downtown.” They said, “It doesn’t make no dif
ference. You got wiped out in Cantonment. You [483j got
wiped out in twelve and eleven. You got wiped out in
MaDavid, you got wiped out in Century, you got wiped
out up there.” They started bringing in the votes, they
come in close, and, Buddy, when you start going to Nine
Mile Road the sun is shut off, and Chappie would not win
a county commissioner’s race in this county unless every
black person voted for him and he carried the thirteen
white precincts in Pensacola and then I would like to look
at the statistics to see if that would be enough to offset that
fifteen hundred votes out of twelve. I think there’s sixteen
out of eleven, that polling place right off where 29 goes
this way and the new roads go through there and they sit
and vote there; they kill your black candidates right there.
297
That’s where they kill them. That’s where they execute
them, right there.
* * * * * * * * *
[496] Q. Dr. Spence, while you were on the city council
did you find that black citizens who lived outside of your
residency district would come to you with problems con
cerning city government? A. They would, yes. Anyone
in Pensacola feels that any black man that would be on
that city council belongs to them no matter where he lives.
They just come to you and ask you, “What can you do
about this?” You know, I’m your councilman. They don’t
care, because actually he voted for me. Now, in the City of
Pensacola you don’t have voting, well, you know that; no
need of me going in that. You just have to live there, but
everybody votes for you.
Q. That’s why we’re here, Doctor. A. Okay.
Q. Did you also find that to be true when you were on
the school board; that is, that black citizens throughout
the county would come to you and ask you for help on
school matters? A. On the school board I was plagued
with requests from teachers. The black teachers in Escam
bia County feel intimidated in my opinion and blacks, yes,
sir [497] black principals, mothers of students that are be
ing expelled, blue collar workers that didn’t receive
promotions or contracts, those were the type; bus drivers
that didn’t, those are the type things you would hear.
Q. Okay, sir. A. They didn’t care what district I
was from. They would come to the only member they had.
Q. Dr. Spence, if we can, let’s move on now to your
appointment to the school board. Can you tell us how that
came about, please, sir? That was 1975, I guess. A. I
was rolling along with a nice city council election with two
years of nothing to do but reading city manager’s reports
298
and rubber stamping the budget and making a few sugges
tions that never got out of committee when the Governor
of the State of Florida decided that if Escambia County
and Florida as such is going to move up into the upper
stratas of national politics and human rights that it was far
time that there would be a minority placed on one county
office in this county. At this particular time there was a
death of a very beloved school board member and there
was an opportunity to appoint a black man to this par
ticular job.
i
Q. For the record, Dr. Spence, who was that that passed
away? [498] A. Mr. L. D. McArthur.
Q. Thank you, sir. A. At this particular time the
Governor’s Office tentatively appointed a replace
ment for Mr. McArthur and there was some difficulties in
volved with the appointment and I got a long distance call
and I was asked, “Would you consider running for this
particular office,” I mean, “Would you consider accepting
an appointment if the Governor would accept you?” And I
said that, you know, “Eve just been elected to the city
council and there are some things I want to do with the city
but I do know that there are many things that need to be
done on the school board.” And I was told, “Think about
it and we’ll get back with you and we’ll run a check on you
and so forth and then we’ll see.” All right, in the meantime
1 was advised by my constituency if a black candidate can
have a constituency, whatever I had for a constituency ad
vised me not to bother around with that school board
thing over there, “Because you’ll get your neck chopped
off over there because it’s a vicious, vicious atmosphere
over there because everybody is clamoring. It’s teachers
against students, students against teachers, et cetera, et
cetera, definitely black against white, and every time there
comes a decision before that board where you have to
299
make a decision if [499] there’s a black involved, if you
take the part of the black they’ll say you’re a rubber duck
official and no good and if you don’t make it in favor of
the white constituency you’ll lose your reelection.”
Anyway I decided, weighing the factors, if I’m going to
live in this county and work in this county I’ve got to pay
my dues and I’m willing to take the risk, and I decided the
decision at this particular time for the good of this county
and this community and my race it would be more impor
tant for a black to run and to be appointed to the school
board because we already had a black person on the city
council and I thought we needed one there. And there was
an outside chance if you were appointed you might get
reelected and there would be a chance that you could open
up the doors and maybe we could round this school system
into what we would want it to be. And I accepted the ap
pointment.
Q. Dr. Spence, thank you, sir. About how long did
you serve on the school board? A. Two years.
Q. Okay, sir. During that time that you were on the
school board did you have occasion to propose an affir
mative action plan for hiring on the school
board? A. Yes. I look back on my days at the school
board and I’m just tickled to death because everything -
[500] MR. RAY: Judge, Yout Honor, this line of
testimony exceeds the scope of the pretrial stipulation on
responsiveness.
THE COURT: In what respect? I don’t know.
MR. RAY: Excuse me, Your Honor, it does not have to
do with - let me get the pretrial stipulation. Appoint
ments to nonemployment type advisory boards and com
mittees, expulsions and suspensions and administrative —
300
MR. BLACKSHER: Promotion to administrative posi
tions was one of the things that was contested.
MR. RAY: Appointment of administrators.
THE COURT: Well, if you all can’t settle it between
you I’ll take a look at it. I don’t remember the stipulation
that well.
MR. RAY: It’s a mention of affirmative action pro
gram.
THE COURT: Well, I assume the affirmative action
program is a statement of hiring more minority people in
positions with the school board as teachers and ad
ministrators and that kind of thing.
MR. RAY: Perhaps if Mr. Menefee could inquire as to
what Dr. Spence had in mind in that program that might
solve it.
THE COURT: Ask him. When you said affirmative ac
tion program, what are we talking about?
[501] A. Well, Mr. Ray is very familiar with it
because he, okay, I’m sorry, Judge, you’re right. But I was
a member of the school board, Judge, and I proposed that
the Escambia County School Board, in line with federal
policies, establish an affirmative action program for the
Escambia County School Board. The school board passed-
THE COURT: You say affirmative action program.
You mean by that to recruit more minority, members of
minority races in positions of employment with the school
board? Is that what you were talking about? What do you
mean by affirmative action program?
A. To set a policy. To set a policy stating that the
school board would judge each applicant fairly according
301
to guidelines of the affirmative action program, that there
would be equal appointments for positions not regardless
of race and so forth, the whole spectrum of the school
system, purchases, hiring, firing, the whole thing.
THE COURT: All right, sir.
A. Under the affirmative action program.
THE COURT: Mr. Ray, that’s what he’s talking about.
Do you have objection to that?
MR. RAY: Your Honor, I was under the impression
that Dr. Spence had in mind more of a program that
granted
[512] trial of a case before me, if I were to say there
was no evidence for a verdict and render judgment, you
tell me I have no perception of it. He says there was no
evidence at all. That’s what he said, and went into details,
that there was no one testified that that boy had the knife
or cut him, that there was simply no evidence to that ef
fect. I don’t consider that getting into — he was the man
sitting at the trial and that’s his version of it. You’ll have
an opportunity to contest it when it gets to you, sir. I don’t
understand that objection. The objection is overruled.
Proceed, Mr. Menefee.
Q. Now, Dr. Spence, your candidacy in 1976 for the
school board, who were your opponents in the Democratic
Primary? Do you remember? A. I ran against Dr.
Smith and Mrs. Carol Ann Marshall.
Q. Yes, sir. Were either of these opponents, had they
sought election to public office before to your
knowledge? A. Mrs. Marshall ran against Mr. L. D.
302
McArthur in the previous school board campaign. I’m not
familiar with Dr. Smith’s record.
Q. Okay, sir. What were the results? Who won the
first Democratic Primary? A. The first primary Carol
Ann pulled sixteen [513] thousand one votes. I pulled
fifteen thousand nine hundred ninety-six. Dr. Smith
pulled ten thousand two hundred approximately.
Q. Okay, sir.
THE COURT: You led? You were first or second going
in?
A. I was second.
THE COURT: Second?
A. By about twenty votes.
THE COURT: Twenty votes?
A. Twenty or thirty, something like that.
Q. And what were the results as best you can
recall? A. The runoff between Mrs. Marshall, she
pulled twenty-nine thousand sixty something. I pulled
nineteen eight, or twenty thousand.
Q. What kind of campaign did you conduct in that
election? A. I did the usual things most candidates do
in Escambia County. We went to rallies and went to the
social clubs and we talked to friends, and television ap
pearances, et cetera.
Q. Did you have much, were you able to raise funds
for your candidacy? A. I raised some funds. I don’t
know, my [514] approximate raising, you can find out
from the, I don’t know exactly; a couple thousand dollars.
Q. A couple thousand dollars. Thank you. Dr.
Spence, do you think your race was a major factor in your
303
defeat in that election? A. I think it was the only fac
tor. I just feel that the racial atmosphere due to the fre
quency of the vote down through the last twenty years in
Escambia County showing the position of voters above
Nine Mile Road has clearly stated black candidates don’t
have any chance or stature and even proven to the point
that in the previous city council election when I pulled,
there’s only been two black candidates in the history of
Escambia County to pull an all-white precinct, Hollice
Williams and myself; I pulled five precincts in the city
council race in, well, 1974-75 and those same precincts
that voted for me in the city council race, in the school
board election race I didn’t carry any of them. But when
the reports came in, the TV stations and radio stations
called me before any of the City of Pensacola precincts
were posted and they told me that, “You were beat,” and I
was beat when precinct twelve came in.
THE COURT: Doctor, you say that in the school board
race you didn’t carry those five precincts you carried [515]
in the city race?
A. No, sir.
THE COURT: What do you assign that to? You don’t
assign that to race then, do you?
A. I’m thinking that this was, I think, and I know it’s
bad in law, sir, I think it was racially polarized because I’m
the same man they voted for in the city council race. I’m
the same person.
THE COURT: That’s my point. They once voted for
you and next time didn’t. How can you say there was racial
polarization as far as you’re concerned? They never would
have voted for you the first time if they felt that way.
A. I think the first time I ran the other candidate
304
didn’t present any image at all but in this particular school
board race I figured the two of us ran that were running so
close up, that I felt after the first primary, I figured that
Mrs. Marshall would split the ten thousand between her; I
figured Dr. Smith pulled ten thousand and we both pulled
twenty thousand. I figured that according to my way of
figuring politics and percentages and so forth that she
would have pulled approximately five of his and I would
have pulled five and it would have been a matter of
twenty-five thousand apiece going in and we’d have split
people that came to the [516] second primary that didn’t
come, but it didn’t come that way. The way it came, I
stayed almost level and the ten thousand that the other
white candidate came about went all to the other white
candidate.
Q. Dr. Spence, do you think the fact that you were,
well, let me rephrase this. Were there events, the ones
we’ve already discussed such as student discipline matters,
school board policy matters, that came up between your
election to the city council in 1975 and your candidacy for
the school board in ’76, also the Rebel flag incident? Were
those events a major factor in your candidacy, the way
voters perceived you in 1976? A. Well, definitely. This
is a Southern community that has great roots, more, say,
in racial symbols and differences and so forth, and when I
was on the school board when the particular incident, I
imagine you’re referring to the Escambia High School inci
dent, I remember very vividly where I was and what I was
doing at the time that I heard the news. I was at the city
recreation gymnasium at a basketball game and somebody
came up and told me that the voting at Escambia High
School went such and such a way and right then and there
I said, well, 1 said, “There is going to be a lot of controver
sy down the line.” If I had voted —
305
[517] MR. RAY: Your Honor, we object to this line of
testimony on the basis that the Escambia High issue was
an issue involved in the Augustus litigation in this court.
That litigation has been excluded pursuant to the pretrial
stipulation.
THE COURT: That I agree with, Mr. Ray, but we’re
not talking about that phase of it; we’re talking now about
the election afterwards and that was not excluded. As a
matter of fact if you want to exclude it, it might be a little
to your disadvantage. We’re talking about, in fact I
shouldn’t say that, but I was getting ready to ask him a
question a little later if you didn’t about the election. He
said that he was turned out of office, he thinks, because of
the racial factor in that election after the controversy came
up. We’re talking about the election and that’s all. We’re
not going into —
MR. RAY: I perceive Dr. Spence going into a descrip
tion of what that controversy was and how he voted.
THE COURT: We don’t need to go into that. That’s
been stipulated before us. We’re only interested as far as
that’s concerned on the election and what happened in the
election and that kind of thing, Doctor. Mr. Menefee, I
think that’s correct, is it not?
MR. MENEFEE: Yes, sir.
THE COURT: We don’t want to get into detail on that.
[518] A. I’ll just say I felt very definitely my pursu
ing that, the nickname situation at that particular high
school, very definitely was to my disadvantage as a politi
cian.
THE COURT: Well, all right, sir. Go ahead.
A. I would say that it wasn’t popular to conduct
yourself in the manner that I did on the school board dur
306
ing this particular controversy. I would say that it was not
racially popular.
THE COURT: Well, isn’t it true that there were three of
you who were running for election after all that controver
sy, the other two being white? All three of you were
defeated for election.
A. Right, but I don’t want to get into it.
THE COURT: You don’t think that means anything to
you? You have no idea or thought that the people of this
county, black and white, were so tired of what had gone
on out at that Escambia County School Board that the
voters in this county, black and white, were saying, “We’re
not going to reelect incumbent school board members”?
You don’t think that was a factor in that race?
A. No, sir, because I acted like a pure gentleman in
that race and I’m going to tell you —
THE COURT: My point is that, well, I thought I [519]
said it, that there were people in this county who had got
ten awfully tired of that situation at Escambia High
School that had gone on so long and that, rightly or
wrongly, they were saying to the school board members,
“You let this thing go on so long,” and that that was a fac
tor in the defeat both of you and the other two incumbent
school board members in that race. All three of you were
defeated.
A. I don’t think so. The reason I don’t think so —
THE COURT: You don’t think that was the problem?
A. I don’t think that . The fact was this. When this
particular thing came up, I was asked by people in this
community to try to resolve this particular thing. Now, the
other gentleman lost his election. There were two of us
running, 1 think, just two.
307
THE COURT: there were three. I believe I’m correct.
A. Just two, Carl West and myself.
THE COURT: Weren’t there three?
A. No. Carl West and myself. Gindl, Leeper and Bell
stayed there.
THE COURT: Just two. All right, go ahead.
A. Carl West had been there several years and [520]
when this particular thing came up we said, “We want to
solve this particular problem.” I wanted to solve it because
people getting whipped out there and getting hit out there
were black people. The people being abused were my peo
ple, so there’s no reason in the world, me as a black politi
cian, trying to represent my people, wanting this thing to
continue. All I wanted for black children in Escambia
High School to get was a quality education. I’m not going
to preach that but I was asked, “Dr. Spence, why can’t we
settle this thing gentleman to gentleman?” Carl West was
told, Carl West was told by the powers to be and he sat
right beside me and we talked about it and he told me,
said, “Don,” he said, “This is —
MR. RAY: Objection, Your Honor. Hearsay.
A. Okay, I’m sorry.
THE COURT: You’re going a long way from answering
my question. I mean all the things that went on in the
school board meeting have nothing to do with the question
about what caused the defeat of yourself and Mr. West
there.
A. I feel I was defeated because I was black. Mr. West
did not campaign. Mr. West did not attend a single rally.
He did not do anything to be reelected.
THE COURT: You don’t agree with the contention
308
made by counsel in this case that the fact that you and [521]
Mr. West had gone in there and had stood by your guns
and knocked out that Rebel name, that that was a factor in
your defeat? You don’t agree with that then?
A. Yes, because —
THE COURT: They say it was a factor in the defeat of
both you and Mr. West. You don’t agree with that?
A. I say, I’m saying it was a factor but I think it was a
racial factor because the black people still voted for me.
My black constituency held true to 96 percent.
MR. MENEFEE: Judge, may I?
THE COURT: I’m going to turn him back to you, sir.
You go right ahead.
MR. MENEFEE: Well, Your Honor made the observa
tion the voters of Escambia County had perhaps disgust or
whatever with the incumbents —
THE COURT: That’s right. I was suggesting that a fac
tor in his defeat and Mr. West’s defeat was the possibility
or the probability that the people of this county, black and
white, had gotten pretty tired of that situation at Escambia
High School and, rightly or wrongly, were blaming
members of that board for it and voting against them in an
election tor that reason, and he says he doesn’t agree with
that.
[522] MR. MENEFEE: Plaintiffs’ exhibit 15, the regres
sion analysis, the scattergram for Dr. Spence’s election or
campaign, shows that of those five precincts that are in ex
cess of 90 percent black they gave Dr. Spence in excess of
90 percent of their vote.
THE COURT : I understand that. Nonetheless other
people in the county didn’t vote for him and didn't vote for
Mr. West and 1 was just approaching that phase of it.
309
MR. RAY: Your Honor, if Mr. Meneffe -
THE COURT: He says he does not believe that was a
factor, and let’s go on.
MR. RAY: Will I have a chance to present argument at
this point?
THE COURT: You’re right, sir. We’ll ignore that and
we’ll go ahead. Mr. Menefee, let’s get back to interroga
tion.
MR. MENEFEE: Okay, sir.
DIRECT EXAMINATION RESUMED
BY MR. MENEFEE:
Q. Dr.Spence, going back to your appointment to the
city council in 1975 or 1974, and then you ran in 1975, do
you think it helped your candidacy, the fact that you had
been appointed to the city council before you ran?
A. No question about it. I would never have made
[523] it if I hadn’t been appointed.
Q. Dr. Spence, you have several times referred to the
area above Nine Mile Road in connection with your race
for the school board. If you would, how would you assess
the chances of a black candidate running in the City of
Pensacola, all of which is below the Nine Mile Road?
A. Well, I think that a black candidate running in the Ci
ty of Pensacola at this particular time, if he didn’t carry
half of the thirteen predominantly white precincts, he
couldn’t make it
MR. MENEFEE: Thank you, sir. I have no further
questions.
;|o|c)|e)ic)|c)|e»|c»|c)|c
310
TESTIMONY OF BILLY TENNANT
***********;
[573] DIRECT EXAMINATION
BY MR. BLACKSHER:
Q. Mr. Tennant, could we have your name and ad
dress, please? A. B.G. Tennant, 4 Teakwood Drive.
Q. Are you presently employed by the Escambia
County Health Department? A. Yes, I am.
[574] Q. What is your position there? A. I’m
director of Environmental Health.
Q. Mr. Tennant, how long have you lived in Pen
sacola? A. Well, since 1936, but I’m a native of the
county.
Q. Mr. Tennant, were you in recent years appointed
by the Escambia County Commission to a committee to
study charter government? A. Yes, I was. '
Q. What year was that? A. Approximately three
years ago.
Q. All right, did you become the chairman of that so-
called Charter Study Committee? A. Yes, I did.
MR. BLACKSHER: Does the Court need any kind of
development of what charter government means?
THE COURT: I think not.
MR. BLACKSHER: Or we can just presume everybody
knows that.
THE COURT: Unless somebody wants it on the record,
come to think of it. We might ask Mr. Tennant, tell us
very briefly what charter government is, its overall concept
as opposed to other types we have now.
311
A. The overall concept of charter government is to
[575] bring home rule to county government. In other
words it’s a constitution for the county government similar
to the state constitution or United States Constitution.
Q. Can we agree the Constitution of Florida provides
alternative government forms for counties, either the form
under the general laws or a charter form which provides
more autonomy for the local government?
A. Yes, it does.
THE COURT: It’s not as opposed to consolidation of
government? I was thinking it had that aspect.
A. Well, it could be consolidation but it could also not
be consolidation. It could be either direction. It could
allow for the cities to remain as they are or it could, a
charter could consolidate the city and county government.
THE COURT: That ought to be enough for record pur
poses, I would think, don’t you agree?
MR. BLACKSHER: Judge, I think the story is that
there were a lot of other voters in Escambia County who
had that impression too.
THE COURT: Well, I thought it was one of the
background purposes in it, although home autonomy was
the main, overriding purpose too. We’ve had some of both
of it going on. Maybe I was mixed up. Go ahead. Your
study, Mr. Tennant, was mostly for autonomy, that is, to
[576] bring local home rule to the county?
A. That’s true, Judge, My study indicated it would
possibly be better since the voters had previously rejected
the consolidation of city and county government to
establish a charter allowing a charter for the county
government and allowing the city government to remain.
312
Q. I show you a document marked plaintiffs’ exhibit
98. As you identify that, if the Court permits, I can
shor ten this by asking him some leading
questions. A. Yes, this is the report prepared by, a ma
jority report prepared by the five-member committee ap
pointed originally by the Board of County Commis
sioners.
Q. Could you tell us who was on the committee,
please? A. Mr. Adrian Blanton; Mr. Ashton
Brosnaham, Jr.; Mrs. Jacqueline Simmons; Mr. Frank
Westmark; and myself.
Q. Okay, sir, could you just briefly tell us who each of
those people is.? A. Mr. Blanton works for Gulf
Power. Mr. Brosnaham is a retired postmaster for the
county. Mrs. Simmons is a school teacher.
Q. And she’s black, isn’t she? A. Yes, she is. And
Mr. Westmark is with St. Regis Paper Company, and of
course I’m with the Health Department.
[577] Q. In that proposal by the committee that was,
I take it, submitted eventually to the county commission,
is that correct? A. That is correct.
Q. Would you show the Court in that document what
you propose with regard to apportioning the Escambia
County Commission.? A. This proposal was presented
to the Board of County Commissioners to expand the ex
isting county commission from five people to seven peo
ple, with five persons being elected within districts and two
people being elected at-large.
Q. Does the proposal contain an apology or rationale
for this particular apportionment starting on page
24? A. Yes, it does.
313
Q. Without reading all of that, since it is in the record,
could you just briefly tell us what the committee’s ra
tionale for that apportionment was? A. Well, the com
mittee’s rationale was simply that it was a case of
economics, that it was costing, the committee, I believe,
evaluated the cost of running for a Board of County Com
missioner’s seat for approximately twenty thousand
dollars, and in order to cut down the cost of running and
in order to provide a more meaningful representation [578]
and closer identification and scrutiny of the commis
sioners, that the rationale was to elect the commissioners
from districts and at large so as to give a balanced
representation.
Q. In the committee discussions was the opportunity
for minorities to elect candidates discussed with respect to
the district elections? A. There was some general dis
cussions along those lines and of course the committee was
looking at the case in Mobile, but I believe the overriding
thought as far as the committee was concerned was to be
able to lessen the cost of running for public office and also
to make it a little more, well, to improve the possibility of
people having to secure large sums of money from various
people in order to run.
Q. All right, sir. Although not - excuse me, Your
Honor. On page 25 of the proposal when it says the
charter government study committee felt that the commis
sion should be enlarged to insure that the plan of represen
tation would be equitable, representative and responsive,
did that include the idea that even minority groups would
have better representation? A. You could infer that, I
believe, but as I said, the overriding consideration was
economics.
314
Q. I understand, sir. Now, Mr. Tennant, would [579]
you identify the next document, which is marked as
plaintiffs’ exhibit 99? A. Yes. This is the minority
report. Bear in mind that this document, the original
document that went to the Board of County Commis
sioners, was a majority report. Three members of the com
mittee were for it and two were against it. And this docu
ment is the answer of the minority report to the Board of
County Commissioners.
THE COURT: Did it also go to the board for its con
sideration?
A. Yes, sir.
THE COURT: Both reports?
A. Yes, it did.
Q. Both reports went to the Escambia County Com
mission? A. Yes, it did.
Q. All right, for the record, the minority report also
proposes single-member districts, does it not, at the top of
the second page? A. Yes, it says, “Election of county
commissioners: A total of five, shall be by districts and on
a nonpartisan basis.”
Q. All right, sir, so in effect the minority was actually
recommending dropping the two at-large votes and just
having district elections?
[580] A. This is right, based upon the economics.
Q. The cost? A. The cost.
Q. Okay, now, what happened when the majority and
minority reports of the first committee were submitted to
the Escambia County Commission? A. A review was
made by the board and an additional committee was ap-
315
pointed consisting of myself and Mr. Brosnaham, since I
was on the majority side and Mr. Brosnaham was on the
minority side. Another committee was formed by the com
mission to review the differences between the majority and
the minority report and come back with another docu
ment.
Q. All right, sir, who else was on the committee
besides you and Mr. Brosnaham, the second study com
mittee, we’ll call it? A. There was myself, Mr.
Brosnaham. I can’t, I don’t remember, you know, the total
membership.
Q. Was Commissioner Deese, County Commissioner
Deese, on it? A. I believe Mr. Deese was on it.
Q. Was Mr. Lott on the second committee? A. I
really don’t know who all was on that second committee.
Q. All right. [581] A. But the record is at the
court house and I’m sure you can establish that. But I
believe that Mr. Deese was a member of the committee.
Q. Okay. A. I think Mr. Lott served the committee
as the county attorney.
Q. Was a Ms. Pat Jones from the League of Women
Voters on that second committee? A. Yes, I think she
was.
Q. All right, sir, do you recall whether there were any
black members of that second committee? A. I don’t
believe there was.
Q. Okay, now, I show you a document marked for
identification as plaintiffs’ 100, and could you tell the
Court what that is? A. Yes. This is the document that
was developed by the second committee.
Q. Was that document also presented to the county
316
commission as the recommendation of the second study
committee? A. Yes, it was.
Q. Does that document cail for district elections of
county commissioners? A. I believe that it does, sir.
Q. Could you find that and maybe I can help you,
[582] because it’s tough to. Yes, it’s section
201? A. Section 201 reads: “The legislative power of
the county shall be vested in the Escambia County Com
mission, hereafter referred to as the Commission. There
shall be five Commission districts and one commissioner
member shall be elected from each district by voters of
that district.” And it limits the terms of the commissioners
to three consecutive terms.
Q. Okay, sir, was there any minority report to that
recommendation? A. No, there was not.
Q. Were all of the members of the committee in agree
ment with the proposal that was submitted? A. To my
knowledge, yes.
Q. Do you recall Commissioner Deese being opposed
to that report? A. No, I don’t.
Q. What happened when this second charter proposal
was submitted to the county commission? A. It was
submitted to the commission for their edification, and
bear in mind that both committees were a committee ap
pointed by the Board of County Commissioners and any
document prepared by the committee would have to go to
the Board of County Commissioners for final ratification
or for whatever usage they would prefer to [583] put it
to.
Q. All right, sir, and what usage, with respect to the
reapportionment part of the charter proposal what did the
county commission do? A. The commissioners felt like
the at-large representation was a more reasonable and fair
approach to electing the Board of County Commissioners
and therefore they changed that part of the document.
317
Q. Changed the district elections to at-large
elections? A. That’s right.
Q. All right, sir. A. I might also point out too that
there was discussion in the second committee on the at-
large election and there was opposition to the district elec
tions within the framework of that committee but a ma
jority vote voted that there should be district elections and
that’s the way it came out.
THE COURT: You say there was some opposition to
which part of it?
A. The second committee.
THE COURT: There was some opposition in going to
districts rather than at-large?
A. Yes, there was.
Q. Let me show you a document that’s already in
[584] evidence, and it’s plaintiffs exhibit 72, and would
you just identify that document.
A. This is the final charter that was put before the
electors for ratification or rejection.
THE COURT: What exhibit? What number is that?
MR. BLACKSHER: It’s 72, Your Honor, and it’s
already in evidence and it is in fact a copy of the charter
that was published in the local newspaper and submitted
to the voters.
A. This is true.
Q. What was the date? Is there a date on
there? A. For referendum on November 8, 1977.
Q. Okay, sir, was there a unanimous vote of the coun
ty commission to change the district elections to at-large
elections, do you know? A. I don’t know. I wasn’t pre
sent at the time that the commissioners took a final vote,
but I would assume that that would be so.
318
Q. Okay, so the referendum considered a charter pro
posal that included not district elections but at-large elec
tions? A. This is true.
Q. And was the charter proposal or referendum
defeated? A. Yes, it was.
[585] Q. All right. Mr. Tennant, are you presently
serving on another commission to study charter govern
ment for Escambia County? A. Yes, I am.
Q. Just tell us briefly what that commission is and
how it was formed. A. This is a charter commission
that has been appointed by the legislative delegation to
write a proposed charter to be submitted to the voters for
ratification or rejection.
Q. W as it ap p o in ted by the leg isla tive
delegation? A. Yes, it was.
Q. And will there, from this commission, result
another referendum on charter government? A. Yes,
there will.
Q. When will that referendum most probably
be? A. I have no idea at this time but it’s my understan
ding it will be sometime in 1979, before July the 1st, I
believe. The commission has to finish its document and
the referendum has to be held during the year 1979.
Q. Will this charter commission be considering reap
portionment among other things in respect to the charter
government? [586] A. I’m sure that it will.
Q. Is there any way to predict what the commission as
a whole ultimately will propose with respect to
districting? A. I have no way of predicting that.
MR. BLACKSHER: All right. Your Honor, we offer in
evidence plaintiffs’ exhibits 98, 99 and 100.
THE COURT: They come in without objection?
319
MR. LOTT: Your Honor, the only objection that we
would have is to the relevancy of this whole line of ques
tioning on the ground that the county commissioners are
defending this law suit and obviously feel that general elec
tions, at-large elections, are more beneficial to the public
than single-member districts, and that’s the most the
evidence could prove.
THE COURT: Well, all these things may or may not
give us a picture at the end of it, Mr. Lott. I’m going to
overrule your objection, if that’s the objection to it.
MR. BLACKSHER: We have no further questions of
Mr. Tennant.
CROSS EXAMINATION
Q. Mr. Tennant, I believe you mentioned on direct ex
amination that the feeling of the charter [587] commis
sion or charter committee that was studying charter
government at the request of the county commissioners
was basically that the cost of election was too great in the
at-large system. Is that basically correct? A. This is
basically correct.
Q. How much of a role did racial consideration or the
ability to carve up the county into small districts in order
to enable minorities to have a better chance of representa
tion play? A. I think as far as the racial implications in
making that decision was minimal. I don’t believe that
there was any consideration given that would override in
any way the economic consideration that the committee
was reviewing because our study indicated the cost of run
ning for office was getting to be quite a sum of money and
therefore the person running for an at-large office,
because of that sum of money, would have to raise con
siderable money from some source.
320
Q. In connection with the determination, you men
tioned in your direct examination that you considered
something of the effect of the Mobile litigation, is that
correct? A. That’s right.
Q. Isn’t it true, Mr. Tennant, that the only considera
tion that was really given in this regard was [588] the fact
that the committee felt that if federal law were to re
quire that single-member districts be adopted that the
committee would rather adopt it itself rather than have the
federal courts adopt it for the committee? A. That’s
true. That’s true. The thought was that the people should
have an opportunity to express their opinion in this area
rather than have the federal courts adjudicate that this is
the position that elected people ought to be elected, the
method by which people ought to be elected.
Q. All right, now, Mr. Tennant, what was the
philosophy behind the charter government as proposed by
your charter committee as far as the function of the Board
of County Commissioners? A. The charter would
strengthen the authority of the Board of County Corn-
commissioners to handle problems that are basically of a
local nature.
Q. Let me clarify my question. What I’m trying to
figure out, get out here, is whether or not the county com
missioners under the charter form that you proposed
would have the same kind of administrative respon
sibilities as they presently do or whether they’d be limited
to more of a policy-making body. A. Well, under the
charter proposed by both committees the commission
would be more of a policy-setting [589] board and
would not act as an administrative and policy board but
strictly more or less as a legislative policy-making board
rather than strictly an administrative policy-making
board.
321
Q. So the function of an individual county commis
sioner would have been modified somewhat from the pre
sent commission in that the county commissioner would
not be concerned with the day-to-day affairs of the county
but would rather be concerned basically with policy
making, is that correct? A. That’s correct.
Q. So therefore an individual county commissioner’s
activities would be somewhat less than they would be
under the present system, is that correct? A. That
would be true as far as administrative functions, but so in
crease their legislative powers.
Q. I see. But their day-to-day activities in performing
their job would be decreased under the proposed
charter? A. That’s true, yes.
Q. Okay, and in that instance would you expect as a
result of the charter that the county commissioners would
have the same kind of salaries that they would have had as
if they continued under their present system, or do you
have any opinion on that? [590] A. Well, neither
one of the committees recommended establishing any
salaries within the framework of the charter. They
recommended or did write into the charter that the general
legislation which establishes the salaries of all boards of
county commissioners over the state would be the prevail
ing wage rates for the elected county commissioners.
Q. Okay, but my point is that under the proposed
form of county government that you were proposing in
your charter committee the individual county commis
sioners would be doing in effect less work and therefore
the kind of job they had was somewhat diminished and the
fact that they would have to go to considerable expense in
an election county-wide would make a considerable dif
ference in the fact they weren’t going to have that much
322
authority and power when they completed and got
there. A. Yes, sir, that was certainly taken into con
sideration.
Q. Okay, Mr. Tennant, you’re fairly familiar with the
concept of charter government in escambia county as in
dicated by your testimony that you have served on three
committees and are presently serving on a committee ap
pointed by the Legislature for charter government. Would
you say that it’s a fair statement that there’s substantial
difference of opinion in Escambia County as to [591]
whether at-large or single-member districts are preferable?
A. Yes, I would say that would be a fair statement,
Mr. Lott, that there are considerable differences of opin
ion among the people on that particular point. In fact
there was differences of opinion on the second committee
on that point.
Q. And the purpose of the charter proposal was to
have an opportunity for a decision to be made and that
decision was made by the county commissioners in favor
of at-large elections when it was presented to them, is that
correct? A. That’s correct, and it was certainly within
the commissioners’ prerogative and authority to do this
because, as you know, both committees were appointed by
the Board of County Commissioners to develop informa
tion for the Board of County Commissioners and to
develop a proposed charter for their review and analysis
prior to any referendum. That was true, yes, sir. That’s
true.
MR. LOTT: No further questions.
THE COURT: You say there are substantial differences
in opinion. What are the reasons, as you know them, at
least, for the differences in opinion? From your committee
I understand your chief reason was economic.
323
[592] A. Yes, sir.
THE COURT: The cost of running. Were there other
reasons that you know of?
A. Weil, some of the reasons was, as I stated here, was
that if there were to be district elections that it’s better for
the people to determine the method district elections
rather than the method being formulated or put into effect
by the federal courts. That was one of them. The other is
that the people that felt like that at-large voting was more
representative because of the fact that there was no dilu
tion of anybody’s vote from the standpoint of running at-
large, every person’s vote was substantially equal accor
ding to the information that came from various members
of the committees. And I believe at one time that that was
brought out in the original committee, Your Honor.
THE COURT: Yes, sir.
A. But the overriding basis by which both committees
operated was one of economics.
THE COURT: Yes, sir, I understood that.
A. That it’s much cheaper to run an election within a
district than it is to run an election countywide.
THE COURT: Mr. Blacksher, I should have waited till
you finished. I’ll let you go ahead.
REDIRECT EXAMINATION
[593] Q. One question.
THE COURT: Yes, sir. Go right ahead.
Q. If the idea of the committee or the intent of the
committee was to give the people of Escambia County the
chance to express their own opinion about district elec
tions rather than have a court decide for them, is it fair to
324
say that the county commissioners excised that provision
and did not give the people of Escambia County the op
portunity to make that choice?
MR. LOTT: Objection, Your Honor. That question is
plainly argumentative.
THE COURT: That objection is sustained.
MR. BLACKSHER: That’s all we have.
THE COURT: Mr. Tennant is excused from further at
tendance, is he not?
MR.BLACKSHER: Yes, he is.
THE COURT: Mr. Tennant you’re excused from fur
ther attendance, your next witness, Mr. Blacksher.
* * * * *