Motion to Dismiss

    vv y Fs Es 

iN 5% & po ‘ Wl hr 3 | 

IN THE UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF ALABAMA 
RECZIVED 

NORTHERN DIVISTON 
86 Ji 15 Fi 12 U7 

“mn 

JOHN DILLARD, ET ALS + 

U.S. Qictiici col 
PLALRTIFE®) MIDDLE CISTRICT OF ALA. 

vs." * CASE NUMBER 85-T-1332-N 

CRENSHAW COUNTY, ALABAMA, ET ALS * 

DEFENDANTS LE 

MOTION TO DISMISS 

Comes now the Defendant, Coffee County, Alabama, qua County; 

Marion Brunson, in his official capacity as Probate Judge; Jim Ellis, in his 

official capacity as Circuit Clerk; and Brice R. Paul, in his official 

capacity as Sheriff of Coffee County, and moves the Court as follows: 

1. To dismiss the above cause of action because the Complaint 

fails to state a claim against the Defendants upon which relief can be 

granted, 

2. To dismiss this cause of action because the Complaint fails to 

state that there has been any failure on the part of the governing body of 

Coffee County, Alabama, to equitably apportion its districts from which the 

members of said body were nominated and elected. 

3. That the class action should be dismissed as these said 

Defendants are not applicable in this class as they are already under a 

Federal Court Order, namely a reapportionment plan approved on or about 

December 1, 1971, and which was approved and adopted by this Court by formal 

 



  

Order entered on December 22, 1971. (See attached Exhibit A). This said, res 

judicata and collateral estoppel are appropriate as to these Defendants. 

4. That the Defendants do not waive any other grounds that they 

might have in different Motions to Dismiss. 
" 

ROWE, ROWE & SAWYER 

C 

BY: 0) A pen 
Warren Rowe 

Rowe, Rowe & Sawyer 

P.. 0. Box 150 

Enterprise, Alabama 3633] 

(205) 347-3401 

  

  

CERTIFICATE OF SERVICE 

1, Warren Rowe, hereby certify that I have mailed a copy of the 

foregoing Motion to Dismiss to all counsel of record by placing a copy of the 

game in the United States mail, postage prepaid and properly addressed to 

them this the [4 day of January, 1986. 

  

  Of” Counsel 

 



  
  

pT i Sa 4 id _ TRY EARP 

i oh 

hj 

  

IN THE UNITED STATES DISTRICT COURT FCR THE {IDLE 

DISTRICT OF ALABAMA, SOUTHERN DIVISIO! 

FILED 

DEC 22 1971 

I aii P. GGRDON, CLERK 

J. COMER SIMS, WILBUR WARREN, 
G. E. ALLEN, CHARLES 

McGLOTHREN, LUTHER MARTIN 

MOATES, ROYCE HERRINGTON and 

JAMES M, SPEIGNER, for themselves, 
jointly and severally, and for 
all others similarly situated, 

ny   

Plaintiffs, 

vs. . CIVIL ACTION NO. 1170-S 

) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 

WILLIAM J. BAXLEY, Attorney ) 
General of the State of Alabama; ) 

ROBERT S. VANCE, Chairman of the ) 
Alabama State Democratic Executive ) 
Comr!ttee; J. R. BENNETT, JR., ) 4 
Che. rman of the Alabama State ) 

Republican Executive Committee; ) 

JAMES L., SAWYER, Judge of Probate ) 
of Coffee County, Alabama; ) 

RALPH SPARKS, Sheriff of Coffee ) 
County, Alabama; JACKSON W, STOKES, ) 
Chairman of the Coffee County Demo-=- ) 
cratic Executive Committee; T, R, ) 
BOWDOIN (BOWDEN), Chairman of the ) 
Coffee County Republican Executive ) 
Committee; and ALBERT G. DYESS, ) 

BYRON B. GALLOWAY, FLOURNOY ) 
WHITMAN, BUSTER BOWDEN, as ) 
members of the Coffee County ) 

Commissioners Court, ) 

) 
) Defendants, 

Se o— w—— ww 

This action has been initiated by J, Comer Sims and pther 

citizens of the United States and of the State of Alabama, who reside in 

Coffee County, Alabama and who are duly qualified and registered electors in 

said State and County, Plaintiffs bring this action on their own behalf and on 

behalf of all other qualified electors in Coffee County who plaintiffs claim are 

denied the right of free and equal suffrage and of equal protection of the laws. 

Defendants include William J. Baxley as Attorney General of Alabama; Robert S. 

Vance and J. R, Bennett, Jr.,, as the Chairmen of the Alabama State Democratic 

and Republican Executive Committees, respectively: James L. Sawyer as Judge of 

Probate of Coffee County and as ex officio Chairman of the County Commission of 

Coffee County; Ralph Sparks as Sheriff of Coffee County; Jackson W, Stokes and 

T. R. Bowdoin as the Chairmen of the Coffee County Democratic and Republican 

 



  

  

Lieentive Committees, respectively; and Alber: G., Dyess, Pvron 2. C~1lowav, 

Flournoy Whitman and Buster Bowden as the duly elected, qualified and acting 

members of the County Commission of Coffee County. 

In bringing this action, plaintiffs have attacked the apportion- 

ment of the County Commission of Coffee County as established by Act No. 630 

of the 1927 Regular Session of the Alabama Legislature and by Act No. 571 of the 

1953 Regular Session of the Alabama Legislature. Under the provisions of these 

acts, the County wads divided into four districts of widely varying populations, 

each entitled to one seat on the Commission, Although the commissioners were to 

be elected from the County at large, each member of the Commission was required 

to be a resident and a qualified elector of the district from which he was elected 

By order entered October 18, 1971, this Court declared the sppot tlonnent created 

by these =cts void and violative of the Fourteenth Amendment to the Constitution 

of the United States, In reaching its decision, this Court found from the matters 

presented to it at the pretrial hearing that each district's resident on the 

Commission represented, in fact, only his district and not the County as a whole, 

See Dusch v, /‘Davis, 387 U.S, 112 (1966), Consequently, the Court ordered the 

County Commission of Coffee County to promulgate a plan remedying the consti- 

tutional infirmities extent under the past selene The Commission filed its 

proposed plan (hereinafter referred to as defendants’ plan) on December 1, 1971, 

and on December 20, 1971, this cause proceeded to a hearing at which the parties 

presented evidence, both oral and documentary, The case now is submitted upon 

the pleadings, the evidence, the defendants’ plan and the briefs of the parties. 

The defendants' plan maintains the four commission districts as 

presently constituted, It provides, however, for six, rather than. four, members 

on the County Commission, three of whom must reside in district 4, the most 

populous district, Plaintiffs argue that this plan is constitutionally unaccept-~ 

able because it fails to provide for votes of substantially equal weight as 

2 required by the United States Supreme Courts Bf See Avery v. Midland County, 
  

  

1/ Act No, 1259, House Bill 2695, 1971 Regular Session, Legislature of Alabama, 
authorizes and empowers the Coffee County Commission to divide or redivide 
Coffee County into commission districts "and to otherwise provide for the 
election of the members of the Commission." 

2/ The voting populations of the four commission districts are as follows: 
District 1 has 998 qualified and registered voters; district 2 has 1,280; 
district 3 has 4,546 and district 4 has 9,327. 

 



    BN at Aa _— a aa A v ie 
  

  

390 U.S. 474 (1968); see also Kirkpatrick v, Preisler, 394 U.S. 526. 
  

This Court is not persuaded by plaintiffs' argument, Tisch v, 

Davis, supra, held that an otherwise nondiscriminatory plim is not invalid 
  

when it uses districts "merely as the basis of residence for candidates, not 

for voting or representation", since each commissioner represents the county 

as a whole and not just the district in which he resides. See also Goldblatt 
  

v. Dallas, 414 F.2d 774 (5th Cir. 1969); Taylor v. Monroe Co. Bd. of Spvrs., 
  

394 U.S, 333 (5th Cir, 1968), Although the plaintiffs' evidence in this case 

disclosed that under the previous apportionment of Coffee County, the commissioners 

functioned primarily as administrators of the County road amd bridge construction 

program, that at least with regard to that function each commissioner, in fact, 

represented only his own district, and that such apportionment discriminated 

against residents of district 4, this Court finds that defemdants' proposed 

plan provides a proper mechanism through which past deficiemcies may be rectified, 

Pursuant to defendants' new apportionment scheme, district & is afforded three 

of the six seats on the County Commission. In addition, the County Judge of 

Probate, who serves as ex officio Chairman of the Commissiom and who votes 

to break ties, runs for office from the County at large and, consequently, is 

most likely to be a resident of district 4, When the Probate Judge is a resident 

of that district, as is the present Probate Judge, district %4 will have a 

majority of the votes on the Commission. Thus, under defendants' proposed plan, 

nothing can prevent the Commission from administering its road construction and 

maintenance program, ag well as all other of its functions, on a county-wide 

basis. The commissioners have the authority to ensure that each of them, in 

fact, roprevents the County as a whole, 

In objecting to defendants' plan, plaintiffs suggest that under 

Alabama law the Commission may lack the authority to add two seats to its 

composition, See Act No, 1259, House Bill 2695, passed in the 1971 Regular 

Session of the Alabama Legislature, approved by the Governor on September 22, 

1971. This Court concludes that the Commission does have such power. Should 

this conclusion prove incorrect, however, the judgment rendered here still will 

be valid as the Court, having decided upon the proper disposition of this case, 

adopts defendants' proposed plan as the plan of the Court. The plan is adopted, 

of course, with the understanding that the vote of each commissioner will be 

equal to the vote of each other commissioner. 

 



  

Ia 47 APPT SS Nl GAN AAR SALA eC a A i Bod ln kal Bik i ia i andl BT EA A 

R% 

. 

  

Accordingly, it is the ORDER, JUDGMENT and DECREE of this Court: 

l. That the defendants, t._ir successors in oificc, :-.1 those 

acting in their behalf or in concert with them, be and each is hereby enjoined 

from failing to conduct or failing to cause to be conducted, in 1972, an election 

for the commissioners of the Coffee County Commission in accordance with the 

following apportionment plan: 

The Coffee County, Alabama commission districts 
shall remain as presently constituted in four 
districts, The Coffee County Commission shall be 
composed of six commissioners, one of whom must be 
a resident and qualified elector of district 1 as 
it is now composed and constituted; one of whom 
must be a resident and qualified elector of district 
2 as it is now composed and constituted; one of 

: whom must be a resident and qualified elector of 
. district 3 as it 1s now composed and constituted; 

and three of whom must be residents and qualified 
electors of district 4 as it is now composed and 
constituted; all of whom shall be elected by the 
qualified electors of the entire County at large 
at the time and in the manner prescribed by law, 
The vote of each commissioner on the Coffee County 
Commission will be equal to the vote of each other 

> | commissioner, i 

It is the further ORDER, JUDGMENT and DECREE of this Court: 

+ 1. That the apportionment of the Coffee County, Alabama Commission, 

as herein ordered and directed, shall be effective upon the filing of this 

decree, with the terms of office of those elected to the Commission seats as 

herein established to commence on the day after the general election to be 

held in November, 1972; 

2, That jurisdiction of this cause be and the same is hereby 

retained for all purposes, 

It is further ORDERED that the court costs incurred in this pro- 

ceeding be and they are hereby taxed against the defendants. 

Done, this the 22nd day of December, 1971, 

pr (Gene ude   

  

UNITED STATES DISTRICT JUDGEX