Escambia County, FL v. McMillan Joint Appendix Vol. I

    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.

* * * * *