Supplemental Brief for Appellees

    f

1504 579 FEDER^U. S.UPPINMENT

knows, the common laws of the vaiious

.Lt".'t"ra to resemble e4ch other closely'

Aftir*gf, the differences may impair the

;iitty -ot 
tt " 

federal government to imple-

ment some programs and thus require the

promulgation of a uniform federal common

i"* trlZ, a federal official could guide his

""iion. 
along the lines of the common law

in the state-in which he serves, if his ac-

iion. "." 
confined to that state' or to the

"ont"ot. 
of the "majority rule", if his activ-

iti". ,t" not confined to one state' ln
It o." intt n.es in which an official follow-

in*-tt " 
majority rule is sued, he would be

.o'""i"a by the qualified immunity of Har-

ior., b".ur." he either should not have been

rl"tonuUly required to have known of the

rrl", o, ttre rule could be deemed to not

have been clearLY established'

The second contention, that officials

mgtrt Ue hampered by state law.imposing

ii"fiifity for their legitimate actions'--also

i*t. ."tit. If the federal law the official

*tt ona"t conflicts with state law' the

Sopr"*".y Clause of the Constitution en-

.ri". tf,"i the state law must yield' U-!

Con.t. art. VI, cl' 2' Moreover' the offi-

eials' right to remove any action brought

against him for his official acts from state

ciurt to federal court guarantees the de-

fendant a forum familiar with, and sympa-

in"ti. to, federal law. 28 U'S'C' 5 1442'

t3l If this Court were writing on an

empiy slarc, it would hold that federal offi-

"iuit 
tr.t as defendant Roberts were enti-

it"a to only a qualified immunity defense

against common law torts' See Queen t"

T'"nnrrru ValleY AuthoritY, 689 F'zd 80'

8? (6th Cir.1982) (Merritt, J', dissenting)'

c"ri. aenlrd, 
- 

U'S. 

-' 
103 S'Ct' 17?0'

?6 L.Ed.zd 344 (1933) (arguing that most

federal officials should be entitled to only a

oualified immunitl- defense); Gronger t"

iiorrtt,583 F.2d 78I, ?86-8? (6th Cir'19?8)

(Merritt. J., dissenting) (arguing' in a post-

Bzlz decision, that IRS agents should be

entitled to only a qualified immunity de-

fense against a common law tort action)'

However, given the Supreme Court's care-

fut aistingulshing of Barr in Bal:' this

Court must concltrde lhat Barr remalns

viable. Queen. sttPra. at 84 (majority T'l:
ion): Note. 52 TemP'L'Q' 102, 102-OB

(19?9): Texas Note at ?93, 19?9 Wis'L'$ev'

OOa,'AtS-tg. Defendant Roberm is tHere-

fore entitled to an absolute immunity in the

common law actions.

Therefore, this Court orders that defend-

ant Gilles Roberts' motion for summary

iudEment as to plaintiffs' common law tort

"t^1"*. 
be GRANTED, but that his motion

be DENIED as to any Biuerts action the

plaintiffs may have' However, the com-

ilalnt not having been amended to include

a constitutional tort, even after it having

bee, recognized that plaintiffs could plead

one, see note 1 supra, plaintiffs' action

against defendant Roberts will be automat-

i.-"tty ai.*itsed if plaintiffs do not amend

their comPlaint within ten daYs'

of a,

whic
and
ful
Rigl
u.s.

l

2.1

side
of
pro,

sivt
ticu
un(
at-l
dis,
eff
tior
5'
3.

Larry CHAPTAT. et al" Plaintiffs'

John C. NICHOLSON' et al"
Defendants'

Civ. A. No. CV82-PT-1879-J'

United States District Court'
N.D. Alabama'
JasPer Division'

Fetr. 13, 1984'

Class action was brought, on behalf of

all black citizens of citv, under voter dilu-

tion provision of the Voting Rights Act'

p."-ulng that the court direct holding of

immedlate special election, that the city be

di.tri.t"d, and that aldermen be elected

from and by districts' The District Court'

Propst, J., 
-held 

that evidenee was insuffi-

ci"ni to establish statutory voter dilution

cause of action.

Judgment for defe'ndants'

1. B1"61g6ns c=l2
The lf,rj t.rtlreltdntent to the Voting

Rights Acr i ll' rts ti "voter dilution" cause

stz
ar(
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,
CHAPMAN v. NICHOLSON 1505

of action based oi state lawl "r1;.ilJ:Tffi,ti;'rtatutory voter ditution causi of
which result in discrimination in voting, action, although the "primary" factors aqp
and dires not require a finding of purpose- due more weight than "enhancing,, facb6.
ful or intentional discrimination. voting voting Rights Act of 1965, s 2(b), as
Rights Act of 1965, 5 2(b), as amended, 42 amended, 42 U.S.C.A. S lg?S(b).
u.s.c.A. s 1e73(b).

See publication Words and Phrases
for other judicial constructions and
definitions.

2. Elections el2
Primary factors which should be con-

sidered in statutory "voter dilution" cause
of action are lack of minority access to
process of slating candidates, unrespon-
siveness by legislators to a minority's par-
ticularized interests, tenuous state policy
underlying preference for multimember or
at-large distrieting, and existence of past
discrimination which in general precludes
effective minority participation in the elec-
tion system. Voting Rights Aet of 1965,
5 2(b), as amended, 42 U.S.C.A. 5 1g?3(b).

3. Elections el2
"Primary" factors to be considered in

statutory "voter dilution" cause of action
are enhanced by findings of existence of
large districts, existence of antisingle shot
voting provisions, existence of majority
vote requirements, and lack of provision
for at-large candidates running from partic-
ular geographical subdistricts. Voting
Rights Act of 1965, S 2(b), as amended, 42
u.s.c.A. s 1973(b).

4. Elections @12
Typical factors which would need to be

proven in a statutory "voter dilution" cause
of action include the existence of racially
polarized voting in the political subdivision,
political campaigns characterized by overt
or subtle racial appeals, and consistent fail-
ure of minority candidates for public office.
Voting Rigrhts Act of 1965, S 2(b), as
amended, 42 U.S.C.A. S 19?3(b).

5. Elections 612
Not all of the judicially established fac-

tors need be proven in order for plaintiff to

l. Plaintiffs have made no effort to offer direcr
evidence of discriminatory purpose as rcquired
by the Fourteenth and Fifteenth Amendmenrs.
Mobile y. Bolden,446 U.S. 55, IOO S.Cr. t49O, 6.1

6. Elections €-12
To prove a constitutional claim of voter

dilution, mere disproportionate effects are
not enought to invalidate an at-large voting
plan. U.S.C.A. C,onst.Amends. 14, 1b.

7. Municipal Corporations c,80
Evidence that most black citizens of

city lived in contiguous area which could be
made a separate voting district but that
there was only one large district, that the
election Bystem required majority vote, and
that in over 30 years under a different
form of city government, there had been
two black candidates who were not elected
to one of three positions was insufficient to
establish statutory voter dilution cause of
action, absent evidence of lack of minority
access to process of slating candidates, un-
responsiveness to particularized interests,
established preference for at-large district-
ing, or direct evidence of past discrimina-
tion. Voting Rights Act of 1965, S 2(b), as
amended, 42 U.S.C.A. S 1973(b).

Hoyt Elliott, Hoyt Elliott, Jr., Jasper,
Ala., for plaintiffs.

Morris W. Savage, Jasper, Ala., for de-
fendants.

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

PROPST, District Judge.

This voter dilution case eame before the
eourt for trial in Jasper, Alabama on De-
cember 14, 1983. Plaintiffs seek a determi-
nation that the City of Jasper's at-large
system of decting city officials discrimi-
nates against black persons and as such
violates Section 2 of the Voting Rights Act
of 1965, as amended in 1982, 42 U.S.C.
5 19?3.'

L.Ed.2d 47 (1980). Neither is the type "dilu-
tiorr" addressed bv Rcrnoid. r.. Sirzt 377 U.S.
5-3.i 84 S.Cr. 1362, l2 I..Ed.2d -i06 (t964), appli.
cai,l,



r606 5?9 FEDER+L SUPPLEMENT
I

BACKGROUND OF SECTION 2

AMENDMENT

Section 2 as amended reads:

5 19?3 Denial or abridgement of right to
vote on account of race or color

through voting qualifications or pre-

requisites; establishment of violation

(a) No voting qualification or prerequi-

site to voting or standard, practice' or

procedure shall be imposed or applied by

any State or political subdivision in a

*ann". which resulls in a denial or

abridgement of the right of any citizen of
the Unitea Sbtes to vote on account of
race or color, or in contravention of the

guarantees set forth in section

igzs(uxfltz) of this title, as provided in

subsection (b) of this section'
(b) A violation of subsection (a) of this

section is established if, based on the

totality of circumstances, it is shown that
the po-litical processes leading to nomina-

tion ot election in the State or political

subdivision are not equally open to par-

ticipation by members of a class of citi-

zens protected by subsection (a) of this

section in that its members have less

opporiunity than other members of the

eiectorate to participate in the political

process and to elect representatives of
iheir choice. The extent to which mem-

bers of a protected class have been elect-

ed to office in the State or political subdi-

vision is one circumstance which may be

considered: Prouided, That nothing in
this section establishes a right to have

members of a protected class elected in

numbers equal to their proportion in the

population.
(As amended Pub.L. 97-205, S 3, June

29, t982,96 Stat. 134.)

42 U.S.C.A. S 19?3 (Supp.1983) (emphasis

added).

Section 2 was amended in an attempt to

nullify the practical effect of the Supreme

Court's decision in City of Mobile u' Bol-

den, 446 ti.s. 55, 100 s.ct. 1490, 64 L.Ed.zd

4? (1980). Boldett held that state actions

which are, on their face, racially neutral

constitute a violatirir' r,l the Fourteenth and

Fifteenth Amendnit'n"' t'lrlf if motivated

by a discriminatr,r' 'rrrpose ln other

wordsy intent to discriminate is a neces-

sary element of a cause of action based

upon the Fourteenth and Fifteenth Amend-

ments. See Bolden,446 U.S' at 62-65, 100

s.ct. at 149?-1498. The court held that
the prohibitions of Section 2 of the Voting

Rights Act (as originally enacted) were no

br6ader than those of the Fifteenth Amend-

ment, Bold.en, 442 U'S' at 6M1, 100 S'Ct'

at 1495-1496, and therefore an intent to
discriminate was also a necessary element

of a cause of action founded on the Voting

Rights Act.

In the early 19?0's a line of circuit court

cases developed a "results" test for deter-

mining voting dilution violations' Under

this test, a violation could be proven either

by a showing of (1) intentional or purpose-

ful discrimination or (2) by a showing that
the statute or state action in question re-

sulted in a denial to minorities of equal

access to the electoral process' See Zim'
mer a. McKeithen,485 F.2d 1297, 1305 (5th

Cir.19?3). The Fifth Circuit in Zimmer
articulated several factors to be considered

in an attempt to clarify what constituted a

discriminatory "result" in voter dilution

cases. Impermissible vote dilution was es-

tablished under the "results" test by proof

of the existence of an aggregate of these

factors. Zimmer,485 F.zd at 1305'

The Fifth Circuit supported iLs u'idely

followed "result" test with language from

the Supreme Court opinions in White a'

Regester, 412 U.S. ?55, 93 S'Ct' 2332, 37

l.Oa.Za 314 (19?3), and Whitcomb a' Chot''

is, 403 U.S. 124, 91 S.Ct. 1858, 29 L'Ed'2d

SGg (fgZt). Both of these cases appeared

to indicate that a violation could be estab-

lished without proof of intent to discrimi-

nate. See Neaett u. Sides, 5?1 F'2d 209'

232 (5th Cir.19?8) (Wisdom, Circuit Judge,

specially concurring) ("ln lWhite and Whit-

comb) ... the Supreme Courf did not re-

quire proof of a legislative intent to dis-

criminate"). Later in the decade, however,

the Supreme Court decisions in Wash'

ington u. Daais, 426 U'S' 229, 96 S'Ct'

2040, 48 L.Ed.2d 59? (19?6), and Arlington
Heighk a. Metropolitan Housing Deuelop-

*tit Corp.,429 U.S. 252,265,97 S'Ct' 555,

563, 50 L.Ed'2d 450 (197?), east doubt on

/
the pr
lished
Circui
the el,
lationr
209,2
sible
tors r
crimir
requir

Inl
Bolde
L.Ed.
ly hel
inatio
violat
Courl
criter
to pn

rypu
den,

nI
becor
of tl
Right
roun(
edk
Secti
with<

PurPr
Alth(
gard
amer
ly br
allou
or pr

in vr
low,
fect
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I

i

t

CHA,PMAN v. NICHOLSON : 1507
Clte u 379 F.SuPP' f30a (t9&{)

t,hepremisethataviolationcouldbeestab-nominationorelectionintheStateor/
lished without proof oi-lnturt. The Fifth political subdivision are not equally open

Circuit, recognizing tt" "pp"t"'t 
changein L participatig'-b{ members of [a pro-

the elements required to ".t uri.r, such vio- tecld minority] fn that its members

lations, held in Nrrrtl ,.-ilai, 5?1 F.zd haoe less opportunity than other mem'

ZOg, ZZS(19?8), ttrat a finding oi i*p"..nir- bers of thi ilectorate to participate in

sible vote dilution ,rra"i ii,"- z, mier fac- the political ploless and to elect repre-

tors raised an ln\e'eni' oi intentional dis- seniatiaes of their choice' The extent to

crimination, thus satisfying the perceived which members of a protected class have

;;;;;;;;t or " 
rinaing oi inttnt' been elected to office " ' is one circum-

lnthelgS0decisionofCityofMobileu..tun."whichmaybeconsidered....,'
Botden,446 U.S. 55, 100 dci. lago, oa 42 u.s.c. s 19?3(b) (emphasis added)' rhis

L.Ed.2d 4? (1980), the Sufreme Court clear- subsection is a general expression of the

il;[ that'a finding of intentiona] discrim- more specific zimmer factors:

inution was required to find a constitutional "[W]here a minority can demonstrate a

violation in a vote dilution case' The tuttt oi access to the process of slating

c;;l' in addition' held that Lhe zimmer candidates' the unresponsiveness of leg-

criteria were "most assuredly insufficient islators to their particularized interests, a

; ,;"" an unconstitutionally discriminato- Lnuou. state policy underlying the pr-ef-

I prrpo." in [a voter dilution] case'" Bol' erence for muiti-member or atJarge dis-

i"i, ilo u.S' at ?3, 100 S'ct' at 1503' tricting, or that the existence of past

tll Keeping this background in mind, it discririination in general precludes the

u".o.". 
"pparent 

from uottt tt'e language effective participation in the election sys-

of the 1982 amend*"nr to the voting tem' a strong case is made' Such proof

i,t*ni e.1 and the legislative history sur- is enhanced by a showing of the exist-

rolnding its passage that Congress intend- ence of large districts' majority vote re-

ed to allow a cause of action based on quirements, anti single shot voting provi-

i".tion 2 of the Act (42 u's'c' s 19?3) .iont and the lack of provision for at-

.,ritttout the requirement of a finding of large candidates running from particular

pr.p"."trf or lntentional discrimination. geo-graphicat subdistricts. The fact of

iltf,o,rgl, Bolden remains the law r+'ith re- iiruion is established upon proof of the

g"ia to-"r^titutional violations, the 1982 existence of an aggregate.of these fac-

i,ound-"nt to the Voting Rights Act clear- tors. The Supreme Court's recent pro-

i, u.o"d.n. the prohibitions of Section 2 to nouncement ii Wnlte u. Regester, supra,

"tto* 
u cause of action based on state laws demonstrates, however, that all these

or practices *'hich reszlt in discrimination i".tor. need not be proved in order to

in ,oUng. For the reasons discussed be- 
obtain relief."

|:: "*l*ru; llhilLll:;':.'li3' ;: zimn'zer'485 F 2d at 1305 rhe most strik'

court's inquiry in u"tt'iuto'ily-based vote ing similarities-between the amended sec-

dilution case to the Zl*-"1'crite'ia as they tion ztul and the Zimmer criteria are (1)

existed prior to tn"" ii'nlrrgton u. Datis the. emphasiq,::^,T,"urt,"bilitv of the polit'

and Arlington Heights decisions' ical processes to 
-minorities 

found in both'

The Congressional intent to return to the 'na 
'tzl 

the emphasis on the "totality of

zi*mercriteria i.' ;;;;p. most clearl,r' ;fi['T:ff'"rot1#ol,"JJ."Jh JiTI
ai.ptul-"d bl the language:J, s .'9: 1] ;;:.;";i;;' Zimmer LesL.

u.S.c. s 19?3(b). Section 2(b) states tr 
rn arl,iiti.n to the obvious similarities be-

'utto .,o,n,ion of subsection (a) of this tut't'r; tlrt.'^l-'*:llt,:ill::,::t*::.3lu"ti:
qectirt', i: t's'.ablishe d il, bused ort the Zitr'r' ' test' the legislative history sur-

to t a t i t v,r, ., -ffi #:*^*:: *::;',,,,i:: iril,TiilJrll" 
^L',"-1il";'i;



1508

clear that Congress igtended, by enacting
the amendment, to return ta the Zimmer
"results" test. The report of the Senate
Judiciary Committee states:

The proposed amendment of Section 2
of the Voting Rights Act is designed to
restore the legal standard that governed
voting discrimination cases prior to the
Supreme Court's decision in Bolden. In
preBolden cases plaintiffs could prevail
by showing that a challenged election
law or procedure in the context of the
total circumstances of the local electoral
process, had the result of denying a ra-
cial or language minority an equal
chance to participate in the electoral pro-
cess. Under this results test, it was not
necessary to demonstrate that the chal-
lenged election law or procedure was de-
signed or maintained for a diseriminatory
purpose.

First, prior to 1978, the lower courts
applied a results test and did not require
a showing of discriminatory intent in vot-
ing dilution cases. The seminal court of
appeals decision was Zimmer a.

McKeithen. ln Zimm.er, the Fifth Cir-
cuit, en banc made clear that dilution
cases could be maintained on either an
intent or a results basis. . . . ln Zimmer,
the court articulated the factors that the
Supreme Court had used in White Lo

appraise the impact of the multi-member
districts. The court concluded that the
fact of dilution is established upon proof
of the existence of an aggregate of these
factors. The Supreme Court's pro-
nouncement in White a. Regester, supra,
demonstrates, however, that not every
one of these factors needs to be proved
in order to obtain relief.

Zimmer was subsequently relied upon
in the vast maj<lrity of nearly tu'o dozen
reported dilution cases.

Thus, it is clear that until the Fifth
Circuit in 1978 attempted to reconcile
Washington a. Davis with White and
Whitcomb, the prevailing standard in

5?9 FtrbERAL SUPPLEMENT
I

voting dilution was the "results" test and
intent was not a prerequisite.

The amendment to the language of
Section 2 is designed to make clear that
plaintiffs need not prove a discriminatory
purpose in the adoption or maintenance
of the challenged system [or] praetice in
order to establish a violation. Plaintiffs
must either prove such intent, or alterna-
tively, must show that the challenged
syst€m or practice, in the context of all
the circumstances in the jurisdiction in
question, results in minorities being de-
nied equal access to the political process.

The "results" standard is meant to re-
store the pre-Mobile legal standard
which governed cases challenging elec-
tion systems or practices as an illegal
dilution of the minority vote. Specifical-
ly, subsection (b) embodies the test laid
down by the Supreme C,ourt in White.

If the plaintiff proceeds under the ,,re-

sults test," then the court would assess
the impact of the challenged structure or
practice on the basis of objective factors,
rather than making a determination
about the motivations which lay behind
its adoption or maintenance.

Senate Rep. No. 97417, 9?th Cong., 2d
Sess., reprinted in 1982 U.S.Code Cong. &
Ad.News 1?7, 193, 20C-l201,20S (footnotes
omitted).

1241 Although there are no reported
Eleventh Circuit cases interpreting the
1982 Amendment, it is apparent from this
legislative history that Congress intended
its 1982 amendment to section 2 to apply
the Zimmer "results" test td vote dilution
cases brought under the Voting Rights
Act. Zimmer lists four "primary" or
"principal" factors as the criteria whieh
should be considered in determining vote
dilution. Positive findings u.ith regard to
these factors provide strong er.iderrce that
minorities are denied an equl:l 6trryi6pfpnity
to participate in the poli:ii:,' lrrc)cess
These "principal" factors art:

1)

2\

8)

4)

See
fact
resl
fact
den
sysl
pro(
but
ther

tors
d

b

c

d

?tL(

far

Set
Zir
mit
tor
vol
arr

So

&
fa
ar
in
gi
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e:



t rnd

rof
that
fiory
Bnee
pin
tiffs

ne
rd
3C-

:al
rl-
&t
?.

,-
'a

\ CHAPMAN v. NICHOLSON l50g
I Cltc..SD F.Supp. lSlX (!9&r) 

:
1) A lack of minority access to the pro- tsl The Fifth Circuit gave Bome guid-r

cess of slating candidatcs; ance to the district courts regarding the'
2) Unresponsiveness by legislators to the application of the Zimmer factors m Neo-

minority's particularized interests; ett a. Sides, 571 F.zd 209, n6 (1978). The ,

3) A tenuous state policy underlying the court stated that:

rna-

3ed
'all
rin
de-
r88.

B
r8

rr

t,

!
i

preference for multi-member or at-
large districting; and,

4) The existence of past discrimination
which in general precludes effective
minority partieipation in the election
system.

See Zimmer at 1305. These "primary"
factors are "enhanced" by findings with
respect to several "extra" factors. These
factors are not so directly related to the
denial to minorities of access to the political
system as are the "primary" factors, but
proof of the "extra" factors does tend to
buttress the findings made with respect to
the "primary" factors. These "extra" fac-
tors are:

a) The existence of large districts;
b) The existence of anti-single shot vot-

ing provisions;

c) The existence of majority vote require-
ments; and,

d) The lack of provision for at-large can-
didates running from particular geo-
graphical subdistricts.

See Zimmer at 1305. In addition to these
Zimmer factors, the Senate Judiciary Com-
mittee Report listed several "typical" fac-
tors which would need to be proven in a
vote dilution case. These "typical" factors
are essentially those enumerated in Zim-
mer, but the Report adds the following
factors:

1) The existence of racially polarized vot-
ing in the political subdivision;

2) Political campaigns characterized by
overt or subtle racial appeals; and,

3) Consistent failure of minority candi-
dates for public office.

See Sen.Rep. 97-417 at 2&-29, 1982 U.S.
Code Cong. at 206-207. Although these
factors do not fit neatly into the Zimmer
analysis as either "primary" or "enhanc-
ing" factors, they should be addressed and
given weight when all the factors are con-
sidered "in the totality of the circumstanc-
es. 42 ll.S.C. S 1973(b).

Zimmer establishes certain subissues,
the criteria, that a trial court must ad-
dress before it can reach the ultimate
issue of dilution. In essence, the criteria
are directions that tell the trial court
what type of circumstantial evidence can
make out a dilution case. The court
must address each subissue, if relevant
to the particular case at hand,ts and de-
termine whether the evidence under that
criterion weighs in favor of or against a
finding of dilution. The court is next to
view the findings under the criteria as a
whole, i.e., "in the aggregal&," Zimrner,
485 F.zd at 1305, giving due regard to
the significance and strength of the find-
ing under each subissue, to determine if
the ultimate inference of dilution is per-
missible, and, if so, whether the eyidence
preponderates in its favor. See Blacks
United for Lasting Leadership, Inc. o.

City of Shreoeport,5Tl F.2d at 25L.

23 As we note in Black United lor l.sling
l*adership, Inc. v. City ol Shreveport,5Tl F.2d
248,255 n. 6, (5th Cir.l978), dependent upon
the nature of the scheme undcr attack, not all
of the criteria ma1'be relevant, and additional
factors ma5, have probative force. Notwith-
standing, the multifactor tesr established in
Zintmer is the touchstone in dilution cases, and
the trial judge must look to it for guidance in
determining what subissues may be appropri-
ate.

Neuett at 226. The difficulty arises in
"giving due regard to the significance and
strength of the finding under each subis-
sue." It is clear that all of the factors do
not need to be proved in order for the
plaintiff to prcvail. . Zimmer at 1305. It is '
similarly obvious that the "primary" fac-
tors, due to their close correlation with the
ultimate issue of denial of minority access
to the electoral process, are due more
weight than the "enhancing" factors, which
are facially race neutral. Beyond these
guiding principles, the district court is ap
parently on its own in deciding if the
"aggregate" of the criteria or the "totality

I



1510

of circumstances" dictates a finding of vote
dilution. This court will, therefore, exam-
ine the above "results test" factors seri-
atim, making findings with regard to each
factor if possible, and then weigh the fac-
tors "in the aggregate" or in the ,,totality
of circumstances" in order to determine if
there has been a Voting Rights Act viola-
tion.

FINDINGS OF FACT
Since 1946, Jasper has been governed by

a City Commission consisting of three
members elected by the voters of the city
at large. On June 23, 1981, the electorate
of the city voted to change its form of
government to the mayor-alderman form.
After the June 23 election, an action was
filed in state court seeking a declaratory
judgment as to when the officers under the
new form were to be elected and to take
office. For a history of this litigation, see
City of Josper a. Daugherty, 424 So.2d 615
(A1a.1982). The Supreme Court of
Alabama held that the election of the new
city officials is to be held on the second
Tuesday in July 1984, with the new offi-
cials to take office under the new form on
October l, 1984.2

This aetion was commenced on August
31, 1982, prior to the decision of the Su-
preme Court of Alabama. The action has
been certified as a class action. Plaintiffs
represent all the blaek citizens of Jasper.
The plaintiffs prayed that the court direct
the holding of an immediate special elec-
tion, that the city be districted, and that
aldermen be elected from and by districts.

Unlike the "voluminous" evidence in
Neuett u. Sides, supra, the evidence in this
case was sketchy and skimpy.3 No expert
testimony has been offered to assist the
court in its analysis of the limited evidence.
The court will first make findings of the
underlying facts and then relate these find-
ings to lhe Zimmer criteria.

2. The Commission form remains effective until
October l, 1984.

3. While thc courl c!rscouragcd plainrifls ir orn
sermonizing in a gcnt,rei u.ar about undrsi;r.rtrd
Constitutionel prirrcinl.: and secking c()ninr(.it!.
as to *helher plairriilt: sutrs.-ritrcd to thcsc priri

579 FEDbRAL SUPPLEMENT

' ,rderlying Fac*
Since the Commission form of govern-

ment was established in 1946, there have
been two black candidates for the City
Commission. James B. Vincent was a can-
didate for Commissioner in Lg72 and re-
ceived 318 votes. Other candidates re-
ceived 1,062 and 93 votes, respectively.
L.D. Thomas was a Commissioner in 1gT9
and received 322 votes. Other candidates
received 4L3, 325, 507, 447 and ?9 votes,
respectively. Neither Vincent nor Thomas
was elected.a Of course, there is no histo-
ry of candidacy or elections under the
recently adopted mayor-alderman form.

Jasper has a population of ll,8g4. It has
1,971 black citizens. The voting population
of Jasper is 8,802 of which 1,496 are black.
There was no evidence that black citizens
in Jasper have ever been denied the right
to vote. There was no evidence that any
black citizen has ever been harassed or
intimidated during the voting process.
While the court might assume that, at
some point in history, black citizens were
discouraged by poll taxes and other means
from registering, several of the black wit-
nesses testified that they voted up to B0
years ago without difficulty. There was
certainly no evidence that black citizens in
Jasper have had as much difficulty in vot-
ing as has been experienced by black citi-
zens in some Southern communities. All
voting registration is administered by
Walker County of which Jasper is the coun-
ty seat. In recent vears deputy registrars,
including black citizens, have been appoint-
ed to conduct home registrations. All
black and white voters in the community
vote at one central location, the City Audi-
torium. There was no evidence that all
black voters vote at the same boxes.

Prior to about 1969 all black children in
Jasper attended county schools which vvere
located outside the city limits of Jasper.

ciples, the courl made it plain thar plaintiff s
u,ould not be Iimitcd in their prt'scrrlriiion of
actual evidence.

4. There is no evidence that rhcrc h:., i:,
thc histcirl of Jaspc.r, bcen otht-; i.. .. .,1

dates for municipal officc.

/ Durir
whik
cated
argut
"dua,
such
nob
of ar
the f
counl
whit*
meml
are
Ther,
scho<

these
04/Lt
Most
the r

of th
whicl
votin

All
open
of th
an at
zens
al sit
inw
side.
ly pa
area
facili
of nr

whitr
imatr
as tl
The
princ
partl
stant
t*'o :

sona
the
findi
thert
non-r
tenar

5. St
the

6. Ir
hrx,



,

CHAPMAN v. NICHOLSON
Clte u 579 F.SuPP. lS(X (19&l)

govern-
e have
5 City
l I can-
rnd re-
bes re-
ctively.
r 1979
didates

votes,
homas
r histo-
er the
rln.

It has
ulation
black.
itizens
r right
Bt any
led or
:ocess.

et, at
, were
means
:k wit-
to 30

e was
ens in
n vot-
k citi-
.Ail
dbv
coun-
trars,
point-

Alt
runity
Audi-
rt all

en in
were
lsper.

intiffs
ion of

rcr, in
hndi-

During the period prior to'1969, Jasper's hood.s Except f6r evidence relating to Mu-

white children attended public schooli lo nicipal Park there was no evidence that

cated within the city limits. while it is predominantly_ white-neighborhoods, non-

arguable that Jasper has never operated a adjacent to Memorial. Park, have recrea-

"d"ual" school system, the court find. thut tional facilities superior to those in tire
such an argumlnt is meaningless in that black neighborhood.6 The Park & Recrea-

zo black children attended JJsper schools tion Department has had a black member

of any type prior to 1969. Prior to 1969, for over ten years'

the facilities for city black students in the The plaintiffs' complaints and evidence

county system were inferior to those of the concerning non-responsiveness to black

white students in the city system' The neighborhood needs is fairly summarized in

members of the City Board of Education Plaintiffs' Exhibit 4' The findings of the

are appointed by the city commission. Secretary of the Treasury in said exhibit

There "." no black members. The city are reasonably supported by the evidence

school system has 62 teachers. Eight of in this case and, except as hereinafter stat-

these teachers are black. Eighteen and ed, the court adopts said findings.

04/100 percent of the students are black. The Secretary of the Treasury found
Most of the city's black citizens reside in some evidence of racial disparity in two
the southerly and southwesterly portions subject areas. The Secretary found that
of the city in one generally contiguous area the street assessment program of the city
which could be reasonably included in one impacted more severely on black citizens
voting district. and resulted in a disparity in paved streets.

All recreational facilities in Jasper are While the Secretary placed some emphasis

open to both black and white citizens. One on amounts assessed for over 24 years

of the main recreational sites is located in which had been written off by the city' the

an area in which predominantly black citi- court does not find the amounts to be of

zens reside. The other primary recreation- great significaaee. The amounts written

al site (Memorial Park) ls outside the area off were relatively small and were all on

in which predominantly black citizens re- debts in excess of 20 years old. Under

side. Memorial Park is in the northwester- Alabama law, such assessments would be

ly part of the city and is included in a large uncollectible' While it is appropriate that

area in which a city school and other public revenue sharing funds be used to relieve

facilities are located. There are a number the disparity' the court does not find that

ofneighborhoodsinwhichpredominantlyassessmentsforstreetimprovementsby
white citizens reside which are also approx- the city had its genesis in racial discrimina-

imatelythesamedistancefromthisparktionorthattherewasdiscriminationinthe
as the predominantly black neighborhood. application of the assessment policy' Since

The plaintiffs' attempted ascription of the the findings and recommendations of the

principal park as being a ,,whlte" park is Secretarr* were made, street improvements

partly subjective. The-court notes no sub- have been made in the black community'

itantiat diiferences in the facilities of the There is some support for the finding of

two recreational sites which cannot be rea- the Secretary that maintenance of recrea-

sonably attributed to the one park being tional facilities at Memorial Park has been

the principal city park. Other than the better tlran that at the black neighborhood

findings oi th" S"..utary of the Treasury, recreational site. This is partially ex-

there L no credible evidence that the citv is plained by misuse of the facilities. There

non-responsive to the equipping and main- has also been an effort to correct any such

tenance of the site in the black neighbor- disparitv'

5. See later discussion u'ith regard to findings of tcrminolog\ as used bv the parties' The refer-

thc secretar], of Treasurl'. ('lllc is lo neigtrborhood areas u'here the vasl

5. In referring to "black" and "u'hitc" ncighb.r Ilraj.rit'of thc residcnts are of one of the tu'o

hoods, thc court is generally using th' s;tlr:'

1511



t5t2 5?9 FEDERAL SUPPLEMENT

The City Housing AuthoritY has had

black members for a number of years'

The racial makeup of the public housing

developments is as follows:
1. Blanton-l4 units-% of occupants

are black;

2. Bankhead-all oceupants are white;

3. Massey-59 of 150 occuPants are

black;

4. Carver-24 units-all black;

5. Western Elderly Project-all white;

6. Haley-l3 black residents and 29

white residents;

7. Eastern Elderly Unit-S blacks and

47 whites.

Thirty-Four percent of the total public

housing occupants are black. Sixteen and

09/100 percent of Jasper's citizens are

black. There was no evidence of any racial
disparities in public housing.

In about 1974, JasPer was allocated

$1,400,000.00 in Community Development
Program funds to be expended in steps

over a period of five years. Lt leasL 40%'

of these funds were expended on various
projects in the predominantly black neigh-

borhoods. The substantially larger portion
of the remaining funds were expended on

downtown projects.

There was no substantial evidence that in
the last fifteen years the city has had a

history of discrimination in employment.
This finding is based primarily on a lack of
evidence.

Ultimate Facts

The court makes the following ultimate
findings of fact pursuant tn Zimmer and

the added factors suggested by the legisla-

tive history of the amendment to Section 2.

Primary Factors

1. Lack of minority aecess to the pro-

cess of slating candidates.

There is no substantial evidence of any

lack of aet'ess to the process of slating

7. Onc blr. k citizen u'ho testified, Underwood,
appclrs :', have a particularly strong voice at

Citl i1...: T'hcrc u'as no indication that City
Hall ir:r. not objectively considered his con-

candidates for city elections or, indeed, that
there has been such slating' Neither has

there been any evidence that black citizens
have been hindered in qualifying as candi-

dates, campaigning or voting'

2. Unresponsiveness to particularized

interests.

There has been no substantial evidence

which would support a claim of unrespon-

siveness. While there may be evidence of
isolated incidents of specific requests not

receiving immediate attention, said inatten-

tion appears more tlaical of a municipality
being financially unable to immediately re-

act to all its citizens' perceived needs, rath-
er than being based on race. Jasper's offi-
cials appear to have taken a progressive,

non-racial approach to city management.

There was no evidence of an appeal by

candidates for city offices based on racial
prejudice. There was no evidence that the

majority is exploiting their political status

to the detriment of the minority. The

court finds no evidence that there is a lack

of concern for the needs of the black com-

munity. The contrary appears indicated.

There was no substantial evidence of public

funds being expended for the primary ad-

vantage of the majority. The contrary
may be indicated. While it may be appro-

priate that revenue sharing funds be used

to avoid the necessity of assessments for
public improvements, there is no indication

that the street assessment program was

conceived or administered with a racial

bias. Both the evidence and the lack of
evidence require a finding that there is no

state of "unresPonsiveness." 7

3. Preference for atJarge districting.

The incoming Board of Aldermqp will
have the option, under state law, to provide

by appropriate ordinance or resolution that
at succeeding elections, aldermen be elect-

ed from numbered districts' In view of
this option there is no apparent state poli-

cy, "tenuous" or otherwise, preferring at-

The court announced at the conclusion of the

trial that there appeared to be no substantial
evidence of "unresponsiveness." Reflection has

not changed this imPression. .

large votia
571 F.2d at

4. Effer

There vr

discriminat
tem. If tl
been such
substantial
tive minor
system. T

rated elecl
governmel
been electr
clusion by
Whatever
the defeal
eannot att
ity particil

1. Exis

There b
city, there
trict.

2. Exit
provisions

The fol
pra, appe

There
vision s
position
proach
sequen(
shot, m
sive mir
votes o

bered 1

elimina
nority
candida
ber rac

571 F.2d

3. Ma

There
4. Thr

didates n
subdistrir

Thert'
sion 'l'l
thir i

t. A. rn.:



,, T'-
large voting. See heaett
5?1 F.2d aL 230.

4. Elfect of past discrimination.
There was no direct evidence of past

discrimination in the Jasper political sys-
tem. If the court assumes that there has
been such past discrimination, there is no
substantial evidence that it preeludes effec-
tive minority partieipation in the election
system. The fact that, in two widely sepa-
rated elections under a different form of
government, two black candidates have not
been elected, does not establish such a pre-
clusion by a preponderance of the evidence.
lVhatever factors may have contributed to
the defeat of these candidates, the court
cannot attribute it to a preclusion of minor-
ity participation.

Enhancing Factors

l. Existence of large districts.
There being at-large voting by the whole

city, there is obviously only one large dis-
trict.

2. Existence of antisingle shot voting
provisions.

The following finding from Neaett, su-
pra, appearc appropriate:

There is no antlsingle shot voting pro-
vision since candidates run for numbered
positions. The numbered position ap-
proach does have some of the same con-
sequences however as an anti-single
shot, multi-member race; because a cohe-
sive minority is unable to eoncentrate its
votes on a single candidate. The num-
bered position approach does, however,
eliminate the problem caused when a mi-
nority group is unable to field enough
candidates in anti-single shot, multi-mem-
ber races.

571 F.zd at 230.

3. Majority vote requirements.

There is a majority vote requirement.
4. The lack of provision for at-large can-

didates running from particular geographic
subdistricts.

There is presently a lack of such a provi-
sion. The court will consider the effect of
this factor in its ultimate conclusion.

E. As indicarcd. there is apparentll.no such long

t

CHAPMAN v. NICHOLSON
' Cltcr3T9FSupp. tS(X (t9&{)

a. Si(es, su.pra, Section 2 Legislagve History

t5l3
Factors'

As indicated the Seetion 2 amendment/
legislative history discusses three other
factors, some of which overlap the Zimmer
factors.

1. Polarized voting.

The evidence that each of the black can-
didates received a similar vote would tend
to indicate polarized voting. There is no
other evidence of polarized voting.

2. Overt or subtle racial appeals.

As indicated, there was no evidence of
political campaigns being characterized by
such appeals.

3. Consistent failure of minority candi-
dates for public office.

The court cannot conclude that the fail-
ure of the minority to elect either of two
candidates to three positions during a peri-
od of over thirty years can be considered a
"consistent" failure to elect minority candi-
dates. There has been no experience under
the new syst€m.

Final Conclusion

The court will now weigh the above stat-
ed factors to determine if the criteria in the
aggregate indicate a racially motiuated
dilution or a resulting denial of equal ac-
cess to the political process. Of course, not
all of the factors need be proved in order
for plaintiffs to obtain relief.

It is significant that the plaintiffs have
not proved any of the primary factors.
The plaintiffs' failure to demonstrate a lack
of access to the political process or an
unresponsiveness to the minority interests
weighs heavily against an inference of ei-
ther intentional discrimination or a finding
that the total cireumitances of the electoral
process have the result or effect of deny-
ing a racial minority an equal chanee to
participate in the electoral process. Even
assuming that the state has a ,,tenuous,,

policv underlving a preference for ,,at-

large" r r,ti'rg.' this alone vuould be insuffi-

rant! i., .).



cient to make out a ease under Zimmer.
See Neaett, supra, S?1 F.zd aLZZg.

Although there is evidence of the exist-
ence of a large district, the existence of
majority vote requirements and the lack of
provision for at-large candidates running
from particular geographical subdistrictsl
none of these findings are sufficient to
overcome the statutory provision which
specifically proseribes a determination that
a protected class has a right to have mem-
bers "elected in numbers equal to their
p-roportion in the population.', Although
the court has given due consideration L
legislative history, it cannot ignore the
clear language of the statute.

A comparison of the evidence in this case
to that in Neuett indicates that the plain-
tiffs' evidence in Neuett, although insuffi-
cient, was much more substantial than that
presented by the plaintiffs here. ln Net_
ett, the black citizens constituted a majori_
ty of the voters in some of the districts and
slightly Iess than b0%. of the voters for the
city as a whole. The trial court found that
voting rather strictly followed racial lines
in a "winner take-all', election system; that
there was an all-white governing body
whose decisions ',tended to reflect their
own perspectives and the attitudes of those
who elected them, to the relative detriment
of the black minority, including such mat-
ters as appointments to other boards and
agencies of the city.', Further, after elect-
ing six members to the city council in 1g6g,
the black citizens elected none in 1972.
The trial court concluded, after applying
the Zimmer factors, that no i-p".-i..iUt"
dilution of black voting existed under the
Fairfield syst€m. 521 F.2d 230_81. The
Circuit Court affirmed. Neaett was a pre-
Bolden case decided under standards slmi_
lar to those that are now established by
Section 2. The restraints of Arlingtoi
Heighk, supra, and, ll/ashington a. DLuis,
supra, felt by Lhe Zimmer and Netteil
courts are not now applicable to a Section 2
case. However, the Section 2 proviso
against a right based solely on proportion-
ate voting is now applicable.

579 FEDERAL.SUPPLEMENT
* 

,4,71 Considering plaintiffs, evidence
as attempting to prove a constitutional
elaim, it is clear that mere ,,disproportion-

ate effects are not enough to invalidate an
at-large plan ....,, Neuett, supra, S7l
F.2d at 222. Considering plaintiffs, evi-
denee as attempting to establish a statuto-
ry claim, it tends to prove nothing except
that members of the protected class have
not been, in two elections held before any
eleetions under the new form of govern_
ment, "elected in numbers equal to their
proportion in the population.,, This is a
case in which the only substantial evidence
favorable to plaintiffs is that:

(1) Most black citizens live in a contigu_
ous area which could be made a separate
district. There is onlv one large district.
Candidates are not required to reside in the
district they will represent.

(2) In over 30 years under a different
form of government, there have been two
black candidates who were not eleeted to
one of three positions.

(3) The election system requires a major_
ity vote.

In the absence of substantial evidence
against the defendants on the other fac_
tors, a judgment in plaintiffs, favor on
these factors alone would fly in the face of
the statutorl' proviso ,,that nothing in this
section establishes a right to have members
of a protected class elected in numbers
equal to their proportion in the population.,'
If Congress had intended that municipali_
ties in all events be districted so as to allow
for elections *'ithin such districts by pro-
tected groups it could have perhaps so pro_
vided. It did not do so.

The court finally concludes that p?ain_
tiffs' evidence is insufficient under both an
intentional discrimination analysis and. a re-
szlLs analysis. Judgment r+,ill be entered
for the defendants.

An order in accordance u'ith this Mt,rrru
randum Opinion will be conterr.rporant,r,,.rsl.,.
entered herewith.

1514

Evidene

PART OI

I. Unpaoet

A. Evide

It was al
Alabama, hr

community

The City
that the Cit
for street
State Statut
been in effe,
City officia
have also b
such as the
istration), t

Grants, and
for street i

tion also dis

expended rr
for a street

An analys
the on-site
there are a

dwellings in
proximately
dwellings.
streets in I

disclosed th
residential r

streets. incl
pied resider
28.1% white
Approximat
dwellings fr
only 0.0095
ings front o

dential dwel
ing unpaver

Street Name

Florida Aven
Birmingham
28th Street
5th Street
unnamed
Eth Stre*:
SOth Strret



I
I
I

iir

CHAPMAN v. NICHOLSON
. Cttc USD F.Sapp. rJO{ (19&r)

Attachment i*x.r" Flom

t.
I

15r5

To

&lth Sk?et
(Frisco)
25th Sleet

26th Street
Gamble,
dead end

Wslker Avenue
unnamed :
l0th Avenue
23rd Street

Highland Ave.
Uth Street
Gamble Avenue

Stlrd Strcet
S. of 29th St.
27th Street
et Coke Oven

Road
Railroad Track
Florida Ave.
28th Stneet

The investigation further shows that the
City enforces the assessment policy; how-
ever, the policy is not strietly enforced for
colleeting assessment fees. The evidence
shows that the City currently has charged
off in 1978-$4,108.5?; 19?9-g2,690.82;
1980-93,921.17 for property owners fail-
ing to pay assessment fees approximately
24 years old. The City's assessment policy
has probably restrained blaek citizens from
requesting the City to provide street pav-
ing service, since black families comprise
43.7%' of the City's lower income families,
and are less able to pay the assessed cost
of street paving.

B. Proposed Remedy:

Submit a plan to the Office of Revenue
Sharing for approval which will ensure that
street paving is provided on a substantially
equal basis in the black and white residen-
tial neighborhoods. The plan should pro-
vide the specific dates when the work will
begin and specific dates when the work will
be substantially eomplete. It should also
indicate the number and locations of black
and white residential dr.r'ellings affected by
the improvemenls and/or additions.

II. Sidewalks

A. Evidence:

It was alleged that the City of Jasper,
Alabama, has failed to provide the black
eommunit;- with sidewalks.

There are approximately 209 residential
dwellings in the City of Jasper which front
on streets with sidewalks, including 34 or
167{ blaclc residential dw.ellings. The U.S.
Census data shou's that black du.ellings
comprise 552 or 15.3'z of the total dwell-
ings in the City of Jasper. Although only
one street is identified as having a sidewalk
in the black area, the number of black
dwellings served reflects parity with the

ddenee

Ltional
ortion-
8te an

[ 571

s' evi-
afuto-
xeept

have
? an!/
rvern-

their
isa

lenee

"enl
two
It0

jor-

,rs

li-
w
G
D

)-

n

t-

t

tigu.
rrate
.rict.
r the

0ce

bc-

on
of
ris
['s

Evidence Lnd Proposed Remedies

. Jasper, AlabJma

PART OF PLAINTIFF'S EXHIBIT 4

l. Unpaued Streets

A. Evidence:

It was alleged that the City of Jasper,
Alabama, has failed to provide the black
community with adequately paved streets.

The City of Jasper, Alabama, contends
that the City applies an assessment policy
for street paving pursuant to Alabama
State Statutes. The assessment poliey has
been in effect since 1921 or earlier. Jasper
City officials asserbed that City streets
have also been paved by other programs
such as the WPA (llork Progress Admin-
istration ), Community Development Block
Grants, and Alabama State Gasoline Tax
for street improvements. The investiga-
tion also disclosed that the City of Jasper
expended revenue sharing funds in 19?5
for a street resurfacing project.

An analysis of the available evidence and
the on-site investigation disclosed that
there are approximately 3,600 residential
dwellings in Jasper, Alabama, including ap-
proximately 552 or 15.3% black residential
dwellings. An on-site tour of the unpaved
streets in the City of Jasper, Alabama,
disclosed that there are approximatel-"- 108
residential dwellings fronting on unpaved
streets, including 74 or 77.8% black occu-
pied residential dwellings and only 2g or
28.1% whiLe occupied residential dwellings.
Approximately 137 of all black occupied
dwellings front on unpaved streels, while
only 0.00957 of all white occupied dwell-
ings front on unpaved streels. Black resi-
dential du'ellings are located on the follow-
ing unpaved streets.

Florida Avenue
Birmingham
28th Street
sth Street
unnamcd
Sth Street
30tL Srrttt

CrutcMield
29th Street
dead end
Zth Street
3lst St. South
25th Street
31st Street

degd end
r/th Street
Gamble
dead end
dead end
24th Street
dead end

ToStrcet Name From



1516

total percentage (15.3%\ of b-lack dwellings
in the City.

B. Proposed RemedY:

No Remedy Requested

III. Curbs and Gutters

A. Evidence:

It was alleged that the City of Jasper,

Alabama, has failed to provide the black

community with curbs and gutters.

An analysis of the available evidence and

on-site investigation disclosed that there

are approximately 549 residential dwellings

in the City of Jasper which front on a

street or street segment with curbs and

gutters. There are approximately 92

(16.8%) black dwellings fronting on a street
or street segment with curbs and gutters,
and approximately 457 (83.2%) white dwell-
ings which front on a street or street seg-

ment with curbs and gutters. Black resi-

dential dwellings comprise 15.3% of Lhe

City's total dwellings. Thus, the number
of black residential dwellings fronting
streets with curbs and gutters reflect pari
ty with the total percentage (15.3%) of
black residential dwellings in the City of
Jasper.

B. Proposed RemedY:

No Remedy Requested

IV. Drainage

A. Evidence:

It was alleged that the City of Jasper,

Alabama, has failed to provide the black
community with adequate drainage.

On January 28, L982, an on-site tour was

conducted of the City's streets during the

course of a heavy rainfall which lasted

approximately 2rlz hours. No flooding of
open ditches or properties was observed;

however, on some streets there was water
in potholes.

An analysis of the available evidence
(City Drainage Map) shows that the under-

ground drainage system is located predomi-

nantly in the business sector of Jasper.

The on-site investigation disclosed that Jas-

per's drainage system is comlrosed niainll'
of open ditches in residential areas u'hich

drains into Town Creek and East Iiranch

5?9 FEDER$I, SUPPLEMENT

Creek.' The investigation also disclosdd

that a Housing and Urban Development

fund grant was used to install drainage on

Crutchfield Boulevard which is located in

the black community. Since open ditches

are the major drainage system in the City,

there is no apparent disparity in the provi-

sion of drainage services.

B. Proposed RemedY:

No Remedy Requested

V. Sewer Service

A. Evidence:

It was alleged that the City of Jasper,

Alabama, has failed to provide the black

community with sewer service.

The on-site investigation disclosed that
the City does not provide sewer service'

City Officials stated that sewer service is
provided by an autonomous board, The Jas-

per Utilities Board. The City does not pro-

vide the board any financial assistance or

services.

The Jasper Utilities Board took sewer

service responsibility from the City in 1971'

The Utilities Board must generate its oper-

ating funds from the sen'ices it provides

for customers. Thus, customers are

charged the full price for services provided'

B. Proposed RemedY:

No Remedy Requested

VI. Street Lights

A. Evidence:

It was alleged that the City of Jasper,

Alabama, has failed to provide the black

community with adequate street lighting.

An analysis of the street lighting map

shows street lighLs positioned o4 approxi-

mately each corner in the City. The evi
dence further shows that the City Manager

approved each street light addition request-

ed b-"- Jasper residents. The Alabama Pou'-

er Company confirmed the City's practice

regarding the manner in which requested

street lights have been installed in the Citl-.

Tlre investigiition also showed that the citi-

zens arr al,parently aware of the procedurt'

I

I

i

I

/

FR

in effe,
ists in

B. l

NoI

VII. )

A.

Itw
Alabar
commr-
recrea'

The
investi
City o
white
ties in

City
ed rer

citizen
witner
ationa
zens,
distan
facilit
tennis

The
equip
list s)

simila
cility
recrel
in thr
the c

morit
Souti
Soutl
floorr
and/r
bowlr
pairir
wall
and r

riora
cracl
patci
scrib
Park

B.

Su

$lrirr
n rait



,,

FRATERNALORDER OF POLICE, SHERIFF'S LODGE,v. BRESCHER 1517
, Clrc u 579 F.Supp. l5l7 (19&{) 

:

in effect. Thus, no apparent disparity ex- shower facility, the repairing and painting
isls in the City's provision of street lights. of the surface of the Southside Pool, arid

rd
It
m
in
B
t,
ri-

k

t

s

B. Proposed Remedy:

No Remedy Requested

VIL Recreation

A. Evidence:

It was alleged that the City of Jasper,
Alabama, has failed to provide the black
community with adequate maintenance of
recreational facilities.

The available evidence and the on-site
investigation shows that there are eight
City operated recreational facilities in the
white area and three City operated facili-
ties in the black area.

City Officials stated that all City operat-
ed recreational facilities are open to all
citizens of Jasper. The complainant and
witnesses assert that all of the City's recre-
ational facilities are indeed open to all citi-
zens, but black citizens must travel longer
distances if they wish to use recreational
facilities located in white areas (pool and
tennis courLs).

The City of Jasper provided a list of
equipment located at each facility. This
list shows that the equipment is relativell'
similar at white and black recreational fa-
cility locations. The on-site tour of the
recreational facilities disclosed a disparity
in the manner in which the City maintains
the changing and shou'er facilities at Me-
morial Park Pool in the white area and the
Southside Pool in the black area. The
Southside Pool's changing area has dirty
floors, paint peeling off the floor, rust
and/or stains in the commodes and face
bou'ls. an entrance door which needs re-
pairing, a water pipe protruding from the
wall u'ith a faucet for an additional shower,
and shower stall partitions which are dete-
riorating. The Southside Pool's surface is
cracked in several places and is in need of
patching and painting. The conditions de-

scribed above do not exist at Memorial
Park Pool.

B. Proposed Remedy:

Submit a plan to the Offiee of Revenue
Sharing for approral which will correct the
maintenance conditions in the changing and

will ensure that maintenance will be provid-
ed at all swimming pool facilities on a,

substantially equal basis.

FRATERNAL ORDER OF POLICE,
SHERIFF'S LODGE NO. 32, and

Robert Deak, Plaintiffs,

v.

George A. BRESCHER, as Sheriff of
Broward County, Florida,

Defendant.

No. 83-6327-CMAG.

United States District Court,
S.D. Florida, N.D.

Feb. 13, 1984.

Deputy sheriffs' organization brought
aetion seeking to have deputies declared to
be public employees entitled to labor repre-
sentation. Sheriff moved to dismiss. The
District Court, Gonzalez, J., held that prior
action by another deputy sheriffs' organi-
zation seeking the same relief barred the
action.

Motion granted.

l. Federal Civil Procedure el64
Adequacy of class representation is vi-

tal in order to prot€ct due process rights of
absent clasS members, to afford finality to
orders and judgment in class proceeding,
and to protect defendant from inconsistent
adjudications and expense of defending
several suits.

2. Judgment @677
Prior class ir('t1orr brought b1' organiza-

tion of deputi' sheriffs to have deputies
declared to lr,.' 1,ul,lic em|lovees entltled to