League of United Latin American Citizens (LULAC), Council #4434 v. Morales Supplemental Brief on Rehearing En Banc of Plaintiff-Intervenor-Appellees

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

LATIN AMERICAN CITIZENS

JIM MATTOX

L FROM THE UNITED STATES 
FOR THE WESTERN DISTRICT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 
. , • ON REMAND FROM THE SUPREME COURT

JOHN R. DUNNE
Assistant Attorney General

JESSICA DUNSAY SILVER 
MARK L. GROSS 

Attorneys
Department of Justice 
P.O. BOX 66078 
Washington, D.C 
(202) 514-2172

20035-6078

li It

V>7-'
‘ •'TJVV*

T y w / ’



TABLE OF CONTENTS

INTEREST OF THE UNITED STATES 
SUMMARY OF ARGUMENT .... 
ARGUMENT:

THE DISTRICT COURT MUST DETERMINE 
WHETHER AT-LARGE ELECTION OF TRIAL 
JUDGES IN TEXAS IS SUBSTANTIALLY 
RELATED TO A STRONG GOVERNMENTAL 
INTEREST, AND WHETHER THE WEIGHT OF THAT 
INTEREST IS SUFFICIENT TO OVERCOME THE 
EXTENT OF PROVEN DILUTION .........

A. Congress Has Determined That
Proof That An Electoral Process 
Advances Legitimate State 
Interests Is Insufficient To 
Maintain A Process Which Results 
In Dilution .........

II.

B. When Asserting the Strength of 
the State's Interest, The Court 
Should Determine Whether it Has 
Been Consistently Applied and 
Whether There Are Alternative 
Methods Of Election Which May 
Advance The State's Interest But 
Result In Less Dilution ....

THE CASE SHOULD BE REMANDED FOR 
CONSIDERATION OF THE STATE'S INTEREST 
UNDER THE CORRECT STANDARD ....

A. The Importance Of The State's
Interest Is An Issue Of Fact To 
Be Assessed By The District Court 
As Part Of The Totality of 
Circumstances ...........

B. The Record Does Not Permit Only
The Conclusion That The State Has 
A Strong Interest In Its Method 
of Electing Trial Judges ......

CONCLUSION ......

-  l  -

1
1

PAGE

3

3

8

10

11

13
20



TABLE OF AUTHORITIES
CASES:
g-Q-lden v * City of Mobile. 571 F.2d 238 (5th Cir.1978) ...............................

Bradley v. Swearingen. 525 S.W.2d 289 (Tex. Civ.App. 1975) ....................................

Chisom v. Edwards, 839 F.2d 1056, cert, denied, 488 
U.S. 955 (1988) .................................

chisom v - Roemer. Ill S. Ct. 2354 (1991) .........
Clark v. Jeter. 486 U.S. 456 (1988) ..............
Gregory v. Ashcroft. I l l  s .  Ct. 2 3 9 5  ( 1 9 9 1 )  ......
Hendrix v. Joseph. 559 F.2d 1265 (5th Cir. 1977) ..
Houston Lawyers Ass'n v . Attorney General of Tevas. 

Ill S. Ct. 2376 (1991) ...... ........... .......[
Icicle Foods v. Worthington. 475 U.S. 709 (1986) ..

i?61971^n V * ~grniqari/ 467 S.W . 2d 621 (Tex. Civ. App.

LULAC v. Clements, 902 F.2d 293 (5th Cir. 1990) ...
&artm v . Ajjain, 658 F. Supp. 1183 (S.D. Miss.1987) ............................

Clipper v. U-Haul Co. . 516 S.W.2d 470 .............
On; v. Orr/ 440 U.S. 268 (1979) ..................
Pickett v. Brown. 462 U.S. 1 (1987) ..............
Pullman Standard v. Swint, 456 U.S. 273 (1982)
Robinson v. Comm'rs Court Anderson Countv. 505 F.2d 

674 (5th Cir. 1974) .............................
Borers v. Lodge. 458 U.S. 613 (1982) .............
South Carolina v. Katzenbach. 383 U.S. 301 

(1966) ..................................

Thornburg v. Singles. 478 U.S. 30 (1986) .........

3

14

9

8
6 ,  9 

8 
9

1 , 6 , 11, 
1 2 ,  19 
11

14

19

14

14

10, 11 
9

11

3

7

3

passim

PAGE

- ii



CASES (cont'd^; PAGE
Wallace v. House, 515 F.2d 619 (5th Cir. 1975), vac. 

on other grounds, 425 U.S. 947 (1976) .... 4
Wengler v. Druqqists Mutual Ins. Co. , 4 4 6 U.S. 1 4 p(1980) ...............
Whitcomb v. Chavis. 408 u.s. too. (1971) ..........

y

5
White v. Reqester. 412 U.S. 7ss (1973) ........... 5
Z_jmmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) 

aff'd sub nom, East Carroll Parish v. Marshall.
424 U.S. 636 (1976) ...... O  T  A

Zulauf v. State, 591 S.W.2d 869 
1979) .............. (Tex. Crim. App.

t / 4

CONSTITUTION AND STATUTES:

1 4

Texas Constitution, Article V 
Section 7a (i) (1985) .......
Section 18(a) (1985) ...... l  o  

1 *7
Voting Rights Act of 1965, as amended, 42 U.S.C. 

1973, Section 2 ............
1 /

Age Discrimination in Employment 
U.S.C. 621 et seq......... Act of 1967, 29

passim

n

MISCELLANEOUS:
/

Fed. R. Civ. P. 52(a) ........

S. Rep. No. 417, 97th Cong., 2d Sess. (1982) . 3, 4, 5, 
12

iii



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 90-8014
LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al.,

Plaintiffs-Appellees 
v.

JIM MATTOX, et al. ,

Defendants-Appellants

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 
ON REMAND FROM THE SUPREME COURT

INTEREST OF THE UNITED STATES
This case addresses the application of the dilution analysis 

of Section 2 of the Voting Rights Act of 1965, as amended, 42 
U.S.C. 1973, to elected trial court judges. The United States 
has primary responsibility for enforcement of Section 2, and this 
Court's decision will be important to those responsibilities.
The United States filed amicus briefs in this case before a panel 
of this Court and before the en banc Court, and presented oral 
argument before the en banc Court.

SUMMARY OF ARGUMENT
Houston Lawyers,., Ass'n v. Attorney General of Texas, m  s. 

Ct. 2376 (1991), holds that a state's interest in its method of 
electing trial court judges is a factor which a court must 
consider under the "totality of circumstances" test for judging 
vote dilution. The issues before this Court involve how to 
consider the state's interest within that framework.



2
When Congress amended Section 2 in 1982, it established that 

elimination of racially dilutive electoral systems was of such 
importance that electoral systems supported by race-neutral and 
legitimate governmental interest nonetheless must be abandoned in 
favor of systems which do not dilute minority voting. Congress 
relied in large measure on this Court's opinion in Zimmer v. 
McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973), aff'd sub nom. 
gast Carroll Parish School Bd. v. Marshall. 424 U.S. 636 (1976), 
which stated that courts should determine whether the state's 
electoral scheme is supported by "strong" state interests before 
weighing that interest against proof of dilution. With respect 
to elected judges, the state must show that its electoral system 
advances "strong" state interests; only after that is proven, may 
the court weigh those interests against the extent of dilution.

The plaintiff has the burden of proving dilution. At the 
same time, however, proof of dilution creates a presumption that 
the electoral system should not stand. The state has the burden 
of rebutting that presumption with evidence of a strong state 
interest which justifies the dilution. The plaintiff may rebut 
the state's proof with evidence demonstrating that the interests 
are not strong because, for example, the electoral schemes are 
not consistently applied, or that interest can be advanced 
through an alternative electoral system. If the court concludes 
that the state interest is strong, it must then weigh it against 
proven dilution under the totality of circumstances standard.



3
ARGUMENT

I
THE DISTRICT COURT MUST DETERMINE WHETHER AT-LARGE ELECTION 

OF TRIAL JUDGES IN TEXAS IS SUBSTANTIALLY RELATED TO A STRONG 
GOVERNMENTAL INTEREST, AND WHETHER THE WEIGHT OF THAT INTEREST 

IS SUFFICIENT TO OVERCOME THE EXTENT OF PROVEN DILUTION
A. Congress Has Determined That Proof That An Electoral 

Process Advances Legitimate State Interests Is 
Insufficient To Maintain A Process Which Results In Dilution

When enacting and amending the Voting Rights Act, Congress 
determined that the elimination of voting discrimination and
racially unfair voting practices is vital to remedying the 
effects of decades of racial discrimination. South Carolina v. 
Katzenb^ch, 383 U.S. 301, 315 (1966). In describing the results 
test, the Senate Report, accompanying the 1982 Amendments, stated 
that an electoral scheme supported by "legitimate" state 
interests nonetheless must be altered where its use results in' ■ 
the dilution of minority voting strength. "[E]ven a consistently 
applied practice * * * would not negate a plaintiff's showing 
through other factors [derived from Zimmer v. McKeithen- 485 F.2d 
1297 (5th Cir. 1973), aff'd sub nom. East Carroll Parish v. 
Marshall, 424 U.S. 636 (1976)] that the challenged practice 
denies minorities fair access to the [electoral] process." S. 
Rep. No. 417, 97th Cong., 2d Sess. 29, n.117 (1982).

A number of the cases the Senate Report cited (id. at 32) , 
as examples of proper application of the dilution inquiry, 
invalidated voting procedures despite the fact that these 
procedures advanced legitimate governmental aims. See, e.a.. 
Robinson v. Commissioner's Court Anderson Countv. 505 F.2d 674, 
680 (5th Cir. 1974). In Bolden v. City of Mobile. 571 F.2d 238,



4
244 (5th Cir. 1978), for example, this Court stated that while 
"tcJity-wide representation is a legitimate interest * * * the 
district court was warranted in finding that the city's interests 
in its at-large plan did not outweigh the strong showings by the 
appellees under the other Zimmer criteria." Zimmer itself 
referred to consideration of a "strong state policy divorced from 
the maintenance of racial considerations" (emphasis added), 485 
F.2d at 1305, as a factor a court may consider when assessing 
whether an electoral scheme was dilutive.

The dilutive effect of at-large elections on minority voting 
strength was of considerable importance to Congress in 1982. 
Congress knew that many localities had enacted at-large systems 
for legitimate governmental reasons, and no one disputed that 
there was legitimate governmental support for at-large elections, 
see Wallace v. House, 515 F.2d 619, 633 (5th Cir. 1975), vacated 
on other grounds, 425 U.S. 947 (1976), and explicitly relied on a 
list of 23 lower court decisions that applied dilution 
principles. S. Rep. No. 417, supra, at 32. All involved 
legislative or executive positions, and the courts held that even 
where race-neutral grounds for the at-large elections were 
asserted, where the electoral scheme was dilutive, single-member 
districting was required.

In applying Section 2 to the election of judges, however, 
analysis should be informed, by the fact that the role of judges 
differs from those of legislative and executive officials. In 
balancing the strength of race-neutral state policies against 
evidence of vote dilution under the "totality of circumstances," 
it is obviously pertinent to consider the nature of the office at



5
issue. The most obvious difference is that while legislators, 
and, perhaps to a lesser extent, executive officials are expected 
to advance and protect the interest of their constituents, and 
are elected to do just that, judges are expected to be fair and 
impartial. Thus, "responsiveness" to minority voters is not a 
relevant concern in evaluating judicial elections.

The important state interest in ensuring a fair and 
impartial judiciary must also be carefully considered in 
evaluating a state's decision to elect judges at-large. The 
State may believe that judges should be discouraged from thinking 
of themselves as representing only a portion of a particular 
jurisdiction. In addition, a state may determine that small 
electoral districts must be avoided in order to prevent a 
relatively discrete segment of the jurisdiction from controlling 
the election of judges. A state may determine that fairness, ' - 
impartiality, and public confidence are significantly aided where 

PeoPle who may generally appear before a particular judge 
have a voice in the election of that judge. Considering the 
State's interest —  which may be different in both nature and 
magnitude for the at-large election of judges than the at-large 
election of legislators —  is therefore consistent with the 
principle in the case law and legislative history that "the 
question whether the political processes are 'equally open' 
depends upon a searching practical evaluation of the 'past and 
present reality' and on a 'functional' view of the political 
process." Thornburg v. Ginqles. 478 U.S. 30, 45 (1986) (quoting 
S. Rep. No. 417, supra, at 30 & n.120). See White v. Reaester.
412 U.S. 755, 766-767 (1973); Whitcomb v. Chavis. 403 U.S. 124,



6
149-155 (1971).

Although state interest in at-large elections must be given 
greater consideration with respect to judicial elections, it

need be considered only if such elections are necessary to 
maintain this fundamental nature of the judicial offices. 
Therefore, in order for the state's interest in electing its 
judges at-large to be weighed against proof of dilution, a state 
or locality must show that its practice is supported by "strong" 
or compelling," not merely "legitimate," governmental aims.

The method the Supreme Court employs to review state 
interests when it applies mid-level constitutional scrutiny 
provides some guidance in determining whether the state has 
demonstrated a strong interest in its method of electing judges. 
The substantive measure exacted in mid-level constitutional 
scrutiny whether a state has established that its practice is 
"substantially related to an important governmental interest,"

v * — ter' 486 U *S. 456, 461 (1988) —  provides guidance on 
the inquiry the Court makes to determine whether a state has a 
governmental interest greater than "legitimate."

Unlike the inquiry in mid-level scrutiny, however, even were 
the state to prove that its interest is strong, and that its 
method of election is substantially related to that strong 
interest, the state's interest does not automatically prevail 
under Section 2, but rather is to be assessed as one of the 
factors in the totality of the circumstances. As the Supreme 
Court stated in Houston Lawyers Ass'n (ill s. Ct. 2376, 2381 
(1991) ; emphasis added), "Because the State's interest in 
maintaining an at-large, district-wide electoral scheme for



7
single-member offices is merely one factor to be considered in 
evaluating the 'totality of circumstances,' that interest rinoc; 
not automatically, and in every case, outweigh proof of racial 
vote dilution.'1' As the analysis and weighing of the totality of 
circumstances requires "an intensely local appraisal," Gincrles. 
478 U.S. at 79 (quoting Rogers v. Lodge. 458  U.S. 6 1 3 ,  622 

( 1 9 8 2 ) ), no simple rule will govern all factual records.
The State asserts, based on Gregory v. Ashcroft. Ill s .  Ct. 

2 3 9 5  ( 1 9 9 1 ) ,  that its method of electing judges is protected from 
federal intrusion by doctrines of federalism; because Congress 
failed to specify that the dilution test of Section 2 applies to 
judges, the State asserts, Congress has left undisturbed the 
state's constitutional prerogatives respecting the choice of 
electoral schemes for judges, and so its choice of electing 
judges at-large necessarily survives scrutiny. Gregory offers- - 
the state no protection here. In Gregory, the Court held that 
Congress, when it amended the Age Discrimination in Employment 
Act to include public employees' did not unambiguously state its 
intention to reach the retention of state judges. That sort of 
ambiguity is not present in the Voting Rights Act, however. The 
Voting Rights Act is clearly intended to affect state 
prerogatives on the method of electing all public officials, 
including judges. The Supreme Court's decision in Chisom v. 
Roemep, ill s .  Ct. 2354  ( 1 9 9 1 ) ,  specifically held that Congress 
intended the dilution test to apply to all elected officials, 
including elected judges. It is Chisom and the Supreme Court's 
decision here which govern.



8
B. When Assessing The Strength Of The State's Interest,

The Court Should Determine Whether It Has Been 
Consistently Applied And Whether There Are Alternative 
Methods Of Election Which May Advance The State's 
Interest But Result In Less Dilution.

In a voting case such as this one, once the state proves 
that the at-large method of election of trial judges is 
substantially related to strong state interests, the plaintiffs 
may show either that the state does not consistently advance that 
interest in all areas of state law, suggesting that the interest 
is not so substantial as the state now asserts, or that the 
interest, even if it is strong and consistently maintained, may 
be achieved by electoral methods which do not dilute minority 
voting strength.-1/ Plaintiffs may demonstrate that the state's 
interest is not consistently honored in state laws or practices, 
suggesting that it is not a strong interest.-2/ For example, in 

v * 5̂ ter, supra, a Pennsylvania statute provided that an" • 
illegitimate child, before seeking support from the father, must 
file a paternity action, and that all such paternity actions 
ordinarily must be brought within six years of birth. The 
Supreme Court held, inter alia, that Pennsylvania officials 
failed to show that the six year statute of limitations was 
substantially related to the state's interest in "avoiding the 
litigation of stale or fraudulent claims," id. at 464, citing a

„ . JVld®nce that the at-large system was only recently adopted
would undercut a state's assertion that its method advances a 
strong state interest. See, e.q., Hendrix v. Joseph. 559 F.2d
prove till ihth Jrlr:.1977)• In addition, where a plaintiff can prove that the adoption or maintenance of the state's electoral 
system was motivated by racial discrimination, the state's 
interest would be due no deference.

^  Administrative convenience is not a strong state interest 
^ n^ler v * Druggists Mutual Ins. Co.. 446 U.S. 142, 152 (1980).



9
number of instances where Pennsylvania law "permits the issue of 
paternity to be litigated more than six years after the birth of 
an illegitimate child." See also Pickett v. Brown. 462 U.S. 1, 
14-15 (1983) , where the Court, using a similar analysis, held 
that Tennessee's statute limiting paternity actions to two years 
a^ter birth as a precondition to a support action for 
illegitimate children, failed because other provisions of state 
law ignored the two-year limit, undercutting the state's argument 
that the limit was important to eliminating fraudulent claims.

In addition, plaintiffs may demonstrate that the state's 
interest may be protected by an alternative electoral scheme that 
reduces or eliminates the dilutive effect on minority voting 
strength. In those instances, the electoral scheme is not 
substantially related to the strong interest. For example, in

v. Orr, 440 U.S. 268 (1979), an Alabama statute provided that 
husbands, but not wives, may be required to pay alimony. The 
state, in defending the statute, asserted that one aim of the Act 
was to provide for needy spouses, and assumed that sex could be 
used as a "proxy" for need. Id^ at 280. The Court, recognizing 
that "assisting needy spouses is a legitimate and important 
governmental objective," nevertheless held the statute 
unconstitutional, noting that there were other means for the 
state to determine which spouses were in fact needy, with little 
added inconvenience to the state. Id̂ _ at 280-282.

For example, even if the state proves both that maintaining 
the linkage between a court's electoral and jurisdictional 
boundaries strongly advances the state's interest in the 
accountability of its judges, and that maintaining such



10
accountability advances other substantial interests, it may be 
that districts smaller than the county-wide districts which now 
exist can be created which will maintain accountability but 
remedy dilution. Only after such proof has been received can the 
court accurately assess the strength of the state's asserted 
interest. If the court finds that the state's interest is strong 
and cannot be achieved in some other way, it should balance that 
interest against proven dilution.

Congress has created a presumption against electoral schemes 
which dilute minority voting strength. For that reason, the 
burden of proving a strong state interest substantially related 
to the practice in question is on the state. Again, that is 
analogous to the state burden under a constitutional analysis.
The state's burden is not met by a simple assertion of interest, 
but must be proven by reliable evidence. After the state's ‘ - 
evidence fully defines its interests, the plaintiffs should be 
given the opportunity to demonstrate that the interest either is 
not sufficiently important, based on the facts of the case, to 
maintain the dilutive practice, or that the interest can be 
achieved in a way which does not result in dilution.

11
THE CASE SHOULD BE REMANDED FOR CONSIDERATION OF 
THE STATE'S INTEREST UNDER THE CORRECT STANDARD

The district court's assessment of the strength of the 
state's interest is largely a question of fact, not of law, 
requiring the district court to make an informed local appraisal 
of the appropriate facts. While the record before this Court, in 
our view, does not permit only the conclusion that the state has 
a strong interest in its method of electing trial judges, see



11
Pullman-Standard v. Swint. 456 U.S. 273, 292 (1982), it is also 
clear that the district court improperly assessed the evidence. 
As this Court defers to findings of fact based on proper legal 
standards, a remand is necessary to permit the district court to 
make an informed assessment about the strength of the state's 
interest. See Icicle Seafoods. Inc, v. Worthington. 475 U.S.
709, 714 (1986). It may also be necessary on remand for the 

court to allow the defendants to introduce evidence 
demonstrating that the State's interests are legitimate and 
important that this defendants did not introduce at trial due to 
the district court's erroneous view of the law. The district 
court should therefore be left free to determine in the first 
instance whether the record should be reopened so that such 
evidence can be adduced.

A. The Importance Of The State's Interest Is An Issue 
Of Fact To Be Assessed By The District Court As Part 
Of The Totality Of Circumstances

The Supreme Court, in its decision in Houston Lawyers Ass'n. 
stated that the state's interest in its method of electing trial 
judges is but one of the factors the district court must assess 
when it determines whether, under the "totality of 
circumstances," the electoral process results in racial dilution. 
The Court stated, "We deliberately avoid any evaluation of the 
merits of the concerns expressed in Judge Higginbotham's 
concurring opinion because we believe they are matters that are 
relevant either to an analysis of the totality of the 
circumstances that must be considered in an application of the 
results test embodied in §2, as amended, or to a consideration of 
possible remedies in the event a violation is proved * * *



12
111 S. Ct. at 2380. The Court further explained, "[T]he State's 
interest in maintaining an electoral system —  in this case, 
Texas' interest in maintaining the link between a district 
judge's jurisdiction and the area of residency of his or her 
voters is a legitimate factor to be considered by courts among 
the "totality of circumstances" in determining whether a §2 
violation has occurred." id. at 2381.

In Thornburg v. Singles, 478 U.S. 30 (1986), the Supreme 
Court stated that the determination of the "totality of 
circumstances" is a finding of fact subject to the "clearly 
erroneous" standard of appellate review. "We reaffirm our view 
that the clearly erroneous test of Rule 52(a) is the appropriate 
standard for appellate review of a finding of vote dilution."
478 U.S. at 79. The Court noted the importance of the "intensely 
local appraisal" and "searching practical evaluation of the 'past 
and present reality'" (ibid., quoting S. Rep. No. 417, surra. at 
30) the district courts perform when they determine whether, and 
to what extent, a particular plan dilutes minority voting 
strength. Id_̂  at 79. Thus, a district court's finding about the 
importance of that interest is a finding of fact subject to the 
"clearly erroneous" standard of Fed. R. civ. P. 52(a). "[T]he 
application of the clearly erroneous standard to the ultimate 
findings of vote dilution preserves the benefit of the trial 
court's particular familiarity with the indigenous political 
reality without endangering the rule of law." ibid.

At the same time, the Supreme Court stated that a district 
court's application of incorrect legal standards to its 
assessment of the facts would require a reviewing court to apply



13
a legal error standard. The choice of the standard to evaluate 
the state's interest is certainly a question of law. The Court 
has made clear that the totality of the circumstances test 
applies and that the state interest is one factor to balance 
against proof of dilution. If the district court has used the 
proper legal standard to assess the weight of the state's 
interest, the conclusion it reaches after balancing is factual.

B. The Record Does Not Permit Only The Conclusion
That The State Has A Strong Interest In Its Method 
Of Electing Trial Judges

The interests which the state asserted were advanced by 
linking a judge's jurisdictional and electoral boundaries, were: 
(1) insuring popular accountability by making judges electorally 
responsible to those within their jurisdiction, (2) avoiding bias 
and the appearance of bias caused by small electoral districts, 
and (3) administrative advantages of at-large elections, * -
including the use of specialized courts.

1. At trial, two of defendants' witnesses testified that it 
was important for a trial judge to be "accountable" to all voters 
in the county. Professor Champagne stated that at-large 
elections provided greater accountability of the judge to county 
voters, so that people who feel they were wronged by a particular 
judge may vote against that judge (Tr. 4-143). Texas Supreme 
Court Chief Judge Thomas Phillips asserted that at-large 
elections assured that judges "ought to be accountable to those 
people who can be hailed into their Court" (Tr. 5-120).

Texas does not consistently adhere to this principle, 
however. Texas justice of the peace courts, which are lower 
level trial courts, are elected from sub-county "precincts" while



14
having jurisdiction over the entire county.-2/ in addition, Texas 

c°urts actually have jurisdiction over cases arising 
beyond the county. Parties can, by agreement, give a county 
court venue over a case which does not arise within the county. 
See Nipper v. UrHaul Co., 516 S.W.2d 467, 470 (Tex. Civ. App. 
1974)? Jepnigan v. Jerniaan. 467 S.W. 2d 621 (Tex. Civ. App. 
1971). Accordingly, Texas recognizes that trial judges may have 
jurisdiction over people who do not reside in the county, 
undermining the argument that keeping the electoral and 
jurisdictional areas coterminous is an important state 
interest.4/

Under Texas practice, individuals commonly are before judges 
in counties in which they neither live nor vote. In addition, as 
Chief Judge Phillips acknowledged, in Texas, district court 
judges "often" are called to sit in other counties to help with 
docket control (Tr. 5-120), and the residents of the county in

the subdistrict from which the justice of the peace is 
elected is used for venue purposes, justices of the peace can 
exercise jurisdiction throughout the county. "[A] justice of the
mrec?nc?Ur  S** Jurisdiction.to try a casewhich irose in anotSe? precinct. Bradley v. Swearingen. 525 S.W.2d 280, 282 (Tex Civ 
App. 1975). See also Zulauf v. State. 591 S.W.2d 869, 872 & n 5’ (Tex. Crim. App. 1979). '

7?Itin V: -JIafn', 658.F* SuPP- 1183, 1195-1196 (S.D. Miss.'' the ̂ court adopted a single-member district remedy for some 
Mississippi trial judges who were elected at-large in racially 
dilutive elections,, after finding that Mississippi already 
elected some other judges from areas smaller than the court's 
jurisdiction. The court there stated fid, at 1195):

Although the state has adopted the policy of the 
post system of electing judges in multi-member judicial 
districts above the justice court level, it long ago 
adopted the policy of single-member electoral districts 
for justice court judges. The state also has the 
policy of judges deciding cases which may originate 
outside their election districts.



15
which the judge temporarily sits have no electoral recourse 
against that judge. in practice, many litigants appear before 
district judges over whom they have no electoral control.

In addition, none of the witnesses in this case explained 
precisely why this county-wide "accountability" was an important 
state interest. The witnesses acknowledged that there would 
still be voter "accountability" were judges elected from areas 
smaller than the county (Tr. 4-143). Mr. Champagne acknowledged 
that accountability is not perfect even under the present system; 
he stated that "I think the idea of judicial accountability is a 
Judge who acts improperly will have the [electoral] sword fall.
In reality it doesn't always work that way, of course. And 
sometimes the sword falls on Judges even though there is no 
impropriety" (Tr. 4-141). In our view, the evidence discussed 
above undermines the contention that county-wide "accountability" 
is important to the proper selection of district judges, or that 
insuring a measure of electoral accountability is significantly 
defeated by dividing the county into electoral districts.

Were the state to show that maintaining identical electoral 
and judicial boundaries is a strong state interest, the 
plaintiffs should be permitted to introduce plans which may serve 
that interest and still eliminate, or lessen, the amount of 
dilution of the present system. The Texas Constitution does not 
require the county-wide election of the district judges at issue 
here, but permits the voters to decide to elect them from sub­
county districts. see Tex. Const, art. V, §7a(i) (1985). m
fact, Professor Champagne testified that county lines were used 
to define electoral boundaries for trial judges "simply [because]



16
county Government has been, essentially since the days of the 
Texas Revolution, has been the way that governmental services are 
primarily delivered to people of the State" (Tr. 4-138) 
Accordingly, there may be ways to divide large counties into sub­
county districts, with each sub-county district having its own 
jurisdictional and electoral boundaries, which might lessen the 
extent of dilution the present county-wide system causes. In 
fact, at trial Judge Phillips, asserting opposition to any plan 
which would give a judge a smaller electoral than jurisdictional 
boundary, stated "If we wanted to go to a system where the judge 
had primary venue responsibility over an area smaller than the 
county, I don't know that I would have an objection to electing 
judges from a smaller [area] than a county" (Tr. 5-78)

2. The state and the state district court judges who 
intervened also put on witnesses who testified that creating ‘ - 
subdistricts was inadvisable because it could lead to perceptions 
of judicial bias and undue influence by special interests.-^

The state judges who testified expressed fear of sub-county

In rejecting the weight of the testimony regarding the 
effects of small electoral districts, the district court appears 
to have too narrowly characterized that testimony. The district 
court stated (Op. 75-76), "State Defendants and Defendant- 
Intervenor Wood argued that (1) judges elected from smaller 
districts would be more susceptible to undue influence bv
?hIa21Zed ?ri^e *.* * *" While the testimony at trial did raise the organized crime" possibility, see testimony of District 
Judge Entz at Tr. 4-82-83, it also raised the possibility that 
smaller electoral districts could lead to pressures from other 
sources For example, District Judge Mark Davidson testified

at *east ln Harris County, electing judges from districts 
smailer than county-wide could place more "political pressures on 
th* JU?ge (Tr* 3~265)• Professor Champagne opposed creating 
subdistricts because "[theoretically the larger the population 
you serve the more insulated a Judge would be from special 
interest group pressure" (Tr. 4-146). See also Tr. 4-191 
testimony of District Judge Carolyn Wright.



17
electoral districts. Texas' Constitution, however, permits 
voters to choose sub-county districts, and it is difficult for 
the state to argue that sub-county districts are incompatible 
with a fair and impartial judiciary. In addition, justices of 
the peace are elected from areas smaller than a county, and those 
districts, in some counties, are significantly smaller than the 
sub-county districts which could be created as a remedy in this 
case.£/ Similarly, the concern that a judge elected from a small 
electorate is more susceptible to improper pressures from special 
interests has not stopped Texas from creating judgeships in some 
counties with relatively small populations. Harris County, for 
example, has a population of nearly 2.8 million people and 59 
district judges. Even if Harris County were to be divided into 
59 subdistricts, a remedy which we do not contend this record 
requires, each district would contain approximately 47,000 ’ -
people. There are currently judges elected county-wide from 
counties with populations of similar size. By our count,!/ 96 of 
Texas' 362 district courts are elected from areas of less than 
100,000 people, and 52 of those are elected from areas of 50,000 
or less. This figure questions the importance of a state concern 
that small electoral districts endanger an impartial judiciary.

Of course, as long as a state or locality chooses to elect

^  For example, the counties at issue in this case run from
wit^lO^OOO7 ' uidern?Jrl£ 2‘8 million PeoPle' to Midland County, ^ o f ' 000* Under the Texas Constitution, counties with as few 
“  ?°'°°° P^Ple *ay be divided into at leak four" Ind as many 
as eight, subdistricts, for the justice of the peace elections. 

Permits counties with as few as 18,000 people to be
i r 5?tice of the peace pre4inctI-
q+^fJUnty P°Pulftions were determined by reference to United States Department of Commerce, 1990 Census of Population - Texas.



18
its judges, there always will be the potential for the appearance 
of conflicts of interest because elected judges are always 
accountable to voters. At present, judges in these counties are 
elected by a white majority. There is also significant question 
whether on this record the state has shown that changing the 
method of election will increase the potential for bias or 
conflicts, rather than simply making some judges more accountable 
to minority voters. Judge Entz acknowledged that he was not 
aware of any allegations of unfairness or suggestions that white 
litigants were not treated fairly by minority judges elected from 
sub-county Justice of the Peace precincts (Tr. 4-90)
Accordingly, it is not at all clear that the state demonstrated a 
consistent state interest in avoiding small judicial districts.

3. Several witnesses discussed .the administrative 
advantages of the present system of electing judges county-wide. 
The witnesses referred to the county-wide records retention, the 
fact that cases are assigned randomly to any judge within the 
county (thereby aiding docket control), and county-wide jury 
empaneling, as examples of administrative conveniences of the 
present system (see Tr. 3-257, 264; 4-257, 261). These concerns, 
however, go to retaining county-wide jurisdiction, rather than 
the method of electing judges, and there was no indication that a 
remedy for dilution could not incorporate these administrative 
conveniences. In addition, while there was testimony that 
applying the dilution test of Section 2 could disrupt the system 
Texas has in many counties of having "specialized courts" (Tr. 3- 
266), a remedy for dilution could easily maintain the use of 
specialty courts in large counties and still fully remedy the



19
<̂ ^ u^ on ky• example, dividing the specialty courts among
districts and having each district elect each type of judge.

4. The original panel decision in this case held that "the 
state's powerful interest in its structural arrangement of 
individual trial judges outweighs the potential amelioration of 
any dilution of minority interests achievable by subdistricting." 
LUMC v. Clements, 902 F.2d 293, 308 (5th Cir. 1990). This 
conclusion, in our view, is premature. First, we believe the 
panel's conclusion was affected significantly by the panel's view 
that trial judges occupy "single-person offices" and that such 
offices necessarily survive the dilution inquiry. The Supreme 
Court clearly rejected that theory in Houston Lawyers Ass'n. 
Second, there is no indication that the panel was weighing the 
"totality of circumstances," but was merely announcing that, as a 
matter of law, trial judges may be elected at-large regardless’ of 
evidence of dilution or the strength of the state's interest or 
alternative methods of election. As discussed above, there is 
much yet to consider before holding both that the state's 
interest in maintaining identical jurisdictional and electoral 
boundaries for trial judges is strong, and that the state has 
proven that electing trial judges at-large, by county, is 
significantly related to that aim, and that there are no less 
dilutive methods of accomplishing that objective. Both the 
district court, and the panel, in our view, failed to perform the 
"intensely local" weighing of the evidence Congress requires, and 
the case must be remanded for full presentation and weighing of 
the evidence. The panel's conclusion that the record sustains 
the method of election as a matter of law improperly implements



20
the dilution test and is simply premature.

CONCLUSION
This case should be remanded to the district court for 

further proceedings.

Respectfully submitted,
JOHN R . DUNNE

Assistant Attorney General

JESSICA DUNSAY SILVER 
MARK L. GROSS 

Attorneys
Department of Justice 
P.O. Box 66078
Washington, D.C. 20035-6078 
(202) 514-2172



CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief For 

The United States As Amicus Curiae On Remand From the Supreme 
Court were mailed to each of the following addressees:

Rolando L. Rios, Esq.
201 N. St. Mary's St., #521 
San Antonio, TX 78205
Gabrielle K. McDonald, Esq. 
Matthews & Branscomb 
301 Congress Avenue 
#2050
Austin, TX 78701
John L. Hill, Jr., Esq. 
Liddell, Sapp, Zivley, Hill 

& LaBoon
3300 Texas Commerce Tower 
Houston, TX 77002
David R. Richards, Esq.
600 West 7th Street 
Austin, TX 78701
Seagal V. Wheatley, Esq. 
Donald R. Philbin, Jr., Esq. 
Oppenheimer, Rosenberg Et A1 
711 Navarro, #600 
San Antonio, TX 78205
Ken Oden, Esq.
Travis County Atty's Office 
Stokes Building, 3rd Floor 
314 West 11th Street ■ 
Austin, TX 78707
James Greenleaf Boyle, Esq. 
801 Congress Suite #250 
Austin, TX 78701
E. Brice Cunningham, Esq.
777 S. R.L. Thornton Frwy. 
Suite 121 
Dallas, TX 75203
Darrell Frank Smith, Esq. 
10999 Interstate 10 #905 
San Antonio, TX 78230



2
Susan Finkelstein, Esq.
405 N. St. Mary's 
Suite 910
San Antonio, TX 78205
C. Lani Guinier, Esq.
University of Pennsylvania 

School of Law 
3400 Chestnut Street 
Philadelphia, PA 19104
Pamela C. Karlan, Esq.
University of Virginia 

School of Law 
Charlottesville, VA 22901
R. James George, Jr., Esq.
Graves, Dougherty, Hearon & Moody 
2300 NCNB Tower 
515 Congress Avenue 
Austin, TX 78767

by overnight mail:

Joseph E. Clements, Esq.
Porter & Clements 
700 Louisiana Street 
3500 RepublicBank Center 
Houston, TX 77002
Edward B. Cloutman, III, Esq. 
Mullinax, Wells, Baab & Cloutman 
3301 Elm St.
Dallas, TX 75226-1637
William L. Garrett, Esq.
Garrett Thompson, Esq.
8300 Douglas, Suite 800 
Dallas, TX 75225
Dan Morales, Esq.
Renea Hicks, Esq.
Price Daniel Building 
209 West 14th 
Austin, TX 78701



3
Sherrilyn Ifill, Esq.
NAACP Legal Defense & Education 

Fund
99 Hudson St.
16th Floor
New York, NY 10013
Robert H. Mow, Jr., Esq.
Bobby M. Rubarts, Esq.
David C. Godbey, Esq.
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, TX 75201

This 15th day of October, 1991.

MARK L. GROSS 
Attorney



I n  th e

BUUb (Emtrt nf Appeals
F ob the F ieth Circuit

No. 25172

E verline Lewis and Margaret T russ,

Appellants,
v.

The H o u sin g  A u t h o r it y  of t h e  C it y  of

T alladega , A l a b a m a , et al,
Appellees.

ap pe a l  from  t h e  u n it e d  states  d istric t  court

FOR THE NORTHERN DISTRICT OF ALABAMA

RECORD ON APPEAL

Peter A. Hall 
Orzell Billingsley, Jr.

1630 Fourth Avenue, North 
Birmingham, Alabama

Jack Greenberg 
Charles H. Jones, Jr.
Charles Stephen Ralston 
Gabrielle A. K irk

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



I N D E X

PAGE

Complaint.............................................. ......................... -....  1

Appendix A  Annexed to Complaint ........ ............. - 10

Appendix B Annexed to Complaint -................—  11

Appendix C Annexed to Complaint ....................... 12

Motion for Temporary Restraining Order .....................  13

Motion for Preliminary Injunction ............................... - 16

Order for Hearing on Preliminary Injunction............. 19

Order dated February 10, 1967 ......................................  20

B on d ....................................................................................... 23

Order dated February 20, 1967 ......................................  25

Motion to Dismiss .............................................................. 27

Motion in Opposition to Defendants’ Motion to Dis­
miss .........................................................-.........................  32

Supplemental Motion to Dismiss ..................................  34

Exhibit “A ” Annexed to Foregoing Motion ......... 36

Exhibit “B” Annexed to Foregoing Motion ......... 37

Order of Dismissal .....      38

Motion for Relief From an Order 40



ii

PAGE

Order on Motion for Relief ................................ ...........  42

Motion in Response to Defendants’ Supplemental Mo­
tion to Dismiss ......................................................... ......  43

Memorandum in Support of Plaintiffs’ Motion in Re­
sponse to Defendants’ Supplemental Motion to Dis­
miss ............................... ...................................................  45

Order on Motion for Relief From the Order of June
2,1967 ..........................................................................    49

Notice of Appeal ......         52

Clerk’s Certificate ..............................................................  54



I n  th e

Inttefr Alette Itstrirt Cmirt
F oe t h e  Noethebn Disteict of A labama 

E astebn Division 

Civil A ction No. CA 67-106

E vebline Lewis and Mabgabet Tbuss,

v.
Plaintiffs,

The H ousing A hthoeity oe the City of Talladega, 
A labama, and W illiam J. Muneoe, individually and 
in his capacity as Executive Director of the Hous­
ing Authority of the City of Talladega,

Defendants.

Complaint

I
The jurisdiction of this Court is invoked pursuant to 

Title 28, TJ.S.C. §§ 1343(3), 1343(4) and 2201. This is a 
suit for injunctive relief authorized by Title 42, TJ.S.C. 
§ 1983 to he commenced by any citizen of the United States 
or other persons within the jurisdiction thereof to redress 
the deprivation under color of statute, ordinance, regula­
tion, custom or usage of the state of rights, privileges and 
immunities secured by the Constitution and the laws of the 
United States. The rights, privileges and immunities sought 
herein to be redressed are those secured by the due process



2

and equal protection clauses of the Constitution of the 
United States and by the United States Housing Act, 
42 U.S.C. §§ 1401 et seq. and regulations promulgated 
thereunder and by § 601 of the Civil Eights Act of 1964. 
This is also a suit for a declaratory judgment of rights 
established under the above enumerated statutes and con­
stitutional provisions.

II

This is a proceeding for an injunction enjoining the 
defendants from:

A. Continuing to enforce its policy of automatically 
evicting any family living in any one of its public housing 
projects if a member of that family has or is expecting 
an illegitimate child;

B. Continuing to evict or threatening to evict tenants 
living in any one of its public housing projects without 
indicating the reasons for the eviction and without giving 
them a fair hearing on the alleged charges for the eviction;

C. Instituting any proceedings to evict or further 
threatening to evict plaintiffs and the classes they repre­
sent ;

D. Continuing to segregate the said public housing 
projects on the basis of race or color;

E. Failing to comply with federal regulations relating 
to the operation of public housing projects constructed 
with the aid of federal funds; in particular, those regula­
tions that require that notices be posted stating that all 
projects are open to all applicants regardless of race or 
color.

Complaint



3

This is also a proceeding for a declaratory judgment 
that defendants’ aforementioned policies and practices are 
violative of rights secured by the due process and equal 
protection clauses of the Constitution of the United States, 
by the United States Housing Act (42 U.S.C. §§ 1401 
et seq.) and regulations promulgated thereunder and by 
§ 601 of the Civil Bights Act of 1964.

III
Plaintiffs bring this action on their behalf and on behalf 

of all other persons similarly situated pursuant to Rules 
23(a) and 23(b)(2) of the Federal Rules of Civil Proce­
dure. The members of the classes (as will be set out in 
paragraph IY  below) on whose behalf this suit is, brought 
are similarly affected by the policies, practices, rules and 
regulations of the defendants complained of herein. The 
members of the classes on whose behalf this suit is brought 
are so numerous as to make it impracticable to bring each 
one of them individually before this Court. There are 
common questions of law and fact involved. The claims 
of the representatives are typical of the claims of the 
class they represent and the representatives adequately 
represent and protect the interests of the class. Defen­
dants have acted in a way which is generally applicable 
to the members of the classes.

IV
The named plaintiffs in this case are:

A. Everline Lewis is a Negro citizen of Alabama and 
a resident of Talladega, Alabama. She is presently a 
tenant in the Knoxville Homes, a public housing project 
of the City of Talladega, but is threatened with eviction

Complaint



4

because her daughter, who is not living with her, is ex­
pecting an illegitimate child. (See attached letter—Ap­
pendix A.) She represents herself and all other persons 
similarly situated who are threatened with eviction or 
have been evicted because a member of their family is 
expecting or has an illegitimate child.

B. Margaret Truss is a Negro citizen of Alabama and 
a resident of Talladega, Alabama. She is presently a 
tenant in the Knoxville Homes, a public housing project 
of the City of Talladega, but is threatened with eviction 
because she is expecting an illegitimate child. (See at­
tached letter—Appendix B.) She represents herself and 
all other persons similarly situated who are threatened 
with eviction or have been evicted because they are ex­
pecting an illegitimate child.

V

The named defendants in this case are:

A. The Housing Authority of the City of Talladega 
which is charged under state and local laws with the oper­
ation of the public housing projects in the City of Talladega 
and is responsible for the promulgation of all regulations 
pertaining thereto.

B. William J. Munroe, who is executive director of the 
Housing Authority of the City of Talladega, Alabama. 
In this capacity he is responsible for the operation of the 
housing projects operated by the Housing Authority of 
the City of Talladega and for the enforcement of all rules 
and regulations promulgated by said Housing Authority.

Complaint



VI

Defendants, acting under color of authority vested in 
them by the laws of the State of Alabama and the ordi­
nances of the City of Talladega, have pursued and are 
presently pursuing policies and practices which violate 
the constitutional rights of the plaintiffs and those of the 
members of the classes which they represent.

On December 1, 1964, defendant housing authority in­
stituted and has since maintained a policy of automatically 
evicting any tenant family from any one of its public hous­
ing projects if any member of that family has or is ex­
pecting an illegitimate child. (See attached letter—Ap­
pendix C.) Defendants have carried out this policy with 
reference to the named plaintiffs as follows:

Plaintiff Everline Lewis, the mother of seven children, 
is presently residing in the Knoxville Homes, a public 
housing project operated by defendants. In a letter dated 
January 23, 1967, she was notified to move from her house 
within ten days of the date of the letter. She was subse­
quently notified that she must vacate the premises she 
occupies by February 10, 1967. She is entitled to remain 
in possession of her present residence under the standards 
and provisions of the state and federal statutes author­
izing the housing project herein involved. Nevertheless, 
she has been required to vacate these premises for the 
ostensible reason that her daughter is expecting an il­
legitimate child although her daughter does not live with 
her.

Plaintiff, Margaret Truss, the mother of three children, 
is presently residing in the Knoxville Homes, a public 
housing project operated by defendants. In a letter dated

Complaint



6

January 23, 1967, she was notified that she would be re­
quired to move from the house she occupies within ten 
days from the date of the letter. She was subsequently 
notified that she would have to vacate these premises by 
February 10, 1967. She is entitled to remain in posses­
sion of the premises she now occupies under the standards 
and provisions of the state and federal statutes author­
izing the said housing projects. Nevertheless, the defendant 
housing authority is requiring her to vacate these prem­
ises for the ostensible reason that she is expecting an 
illegitimate child.

The above plaintiffs are threatened with immediate, 
grave and irreparable injury because their eviction from 
this public housing project will force them to live in sub­
standard, unsanitary, unsafe and crowded living condi­
tions to the detriment of themselves and their children. 
In addition, if plaintiffs are evicted, the status quo of this 
action will be destroyed and will render the prosecution 
of this suit difficult, if not impossible, in its present posture.

VII

The adoption and enforcement by defendants of their 
above-mentioned policies have resulted in a denial to the 
plaintiffs of rights secured to them by the Constitution 
and the laws of the United States in the following partic­
ulars :

A. Plaintiffs have been denied the equal protection 
of the laws in that they will be evicted from the public 
housing project owned and operated by agencies and agents 
of the State of Alabama on a basis wholly arbitrary and 
irrational and not bearing a reasonable relationship to 
the purposes and functions of public housing.

Complaint



7

B. The plaintiffs have been denied due process of law 
in that they will be evicted from the public housing project 
owned and operated by agencies and agents of the State 
of Alabama without being told the reason for this eviction 
and without being given an opportunity to defend against 
such eviction in a fair hearing.

C. Plaintiffs have been denied equal protection of the 
laws in that defendants have operated and are continuing 
to operate the public housing projects of the City of Tal­
ladega on a segregated basis.

D. Moreover, the actions of the defendants thus de­
scribed violate the express intent and purpose of the public 
housing laws of the United States under which funds were 
granted for the establishment of the housing projects un­
der the control of the defendants.

VIII

Plaintiffs and the class which they represent have suf­
fered and will continue to suffer irreparable injury by the 
policies, practices, customs and usages of defendants com­
plained of herein until the same are enjoined by this Court. 
Plaintiffs have no other adequate remedy at law to redress 
the grievances herein set forth than this suit for injunctive 
relief.

W h e r e f o r e , plaintiffs pray that this Court issue a tem­
porary restraining order and, after advancing the cause 
on the docket ordering a speedy hearing of this action 
according to law and holding such hearing, enter a prelim­
inary and permanent injunction enjoining defendants and

Complaint



8

their agents, employees, successors and all persons in ac­
tive concert and participation with them from:

(1) continuing to enforce the policy of automatically 
evicting any family living in any one of its public housing 
projects if a member of that family has or is expecting 
an illegitimate child;

(2) continuing to evict or threatening to evict tenants 
living in any one of its public housing projects without 
indicating the reasons for the eviction and without giving 
them a fair hearing on the alleged charges for the eviction;

(3) instituting any proceedings to evict, or further 
threatening to evict, plaintiffs and the classes they repre­
sent;

(4) continuing to segregate the said public housing 
projects on the basis of race or color; and

(5) failing to comply with federal regulations relating 
to the operation of public housing projects constructed 
with the aid of federal funds; in particular, those regula­
tions that require that notices be posted stating that all 
projects are open to all applicants regardless of race 
or color.

Plaintiffs also pray for a declaratory judgment that 
they may not be evicted on the grounds set out above and 
that the policies and practices set out above violate rights 
protected by the Constitution and the laws of the United 
States.

Plaintiffs further pray that this Court will allow them 
their costs herein, reasonable attorneys’ fees and grant

Complaint



9

such further, additional or alternative relief as may appear 
to the court to be equitable and just.

Respectfully submitted,

/ s /  Qrzell B illingsley, Jr.
Orzell B illingsley, Jr.
P eter A. H all

1630 Fourth Avenue North 
Birmingham, Alabama 35203

Charles H . J ones, Jr.
Charles S tephen R alston 
Jack Greenberg

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs 

(Verified February 10,1967.)

Complaint

F iled in  Clerk’s Office 
N orthern D istrict of A labama

F eb 10 1967

W illiam E. Davis 
Clerk, TJ. S. D istrict Court

By Jewel M. M assey 
Deputy Clerk



10

Appendix A Annexed to Complaint

Cttbky Couet

HOUSING AUTHORITY
OP THE

CITY OF TALLADEGA

151 Cubby Coubt 
T alladega, A la.

K noxville H omes

January 23, 1967

Mrs. Everline Lewis 
44 Knoxville Homes 
Talladega, Alabama

Dear Tenant:
Yon are hereby notified to move from the house you now 
occupy, 44 Knoxville Home, within 10 days from the above
date.

Very truly yours,

H ousing A uthobity op the 
City op T alladega

/ s /  W illiam J. M unboe 
W illiam J. M unboe

Executive Director

W JM /h



11

HOUSING AUTHORITY
OF THE

CITY OF TALLADEGA 
151 Cubby Coubt 
T alladega, A la.

Cubby Coubt K noxville H omes

Appendix B Annexed to Complaint

January 23, 1967

Mrs. Margaret Truss 
50 Knoxville Homes 
Talladega, Alabama

Dear Tenant:

You are hereby notified to move from the house you now 
occupy, 50 Knoxville Homes, within 10 days from the 
above date.

Very truly yours,

H ousing A uthobity of the 
City of T alladega

/ s /  W illiam J. M unboe 
W illiam J. M unboe 
Executive Director

W JM A



12

EFFECTIVE DECEMBER 1, 1964, ANY ILLEGITI­
MATE CHILD BORN TO ANY MEMBER OF A 
TENANT FAMILY WILL AUTOMATICALLY BRING 
ABOUT THE EVICTION OF THAT FAMILY.

AFTER DECEMBER 1, 1964, IF IT BECOMES AP­
PARENT THAT A  PERSON IS EXPECTING AN 
ILLEGITIMATE CHILD, THE FAMILY WILL BE 
EVICTED IMMEDIATELY.

THE PURPOSE OF THIS LETTER IS TO MAKE 
THE POLICY OF THE HOUSING AUTHORITY 
COMPLETELY CLEAR TO THE TENANT.

NO EXCEPTIONS W ILL BE MADE.

Appendix C Annexed to Complaint

W illiam J. Munroe 
E xecutive Director

H ousing A uthority of the 
City of Talladega, A labama

February 21, 1964.



13

IN THE UNITED STATES DISTRICT COURT 

Fob the Northern District of A labama 

E astern Division

Motion for Temporary Restraining Order

[same title]

Motion for Temporary Restraining Order

Plaintiffs move this Court for a temporary restraining 
order, without notice, restraining defendants and each 
of them, their agents, servants, employees and successors 
from:
1. Evicting or threatening to evict from any public 

housing project under the control of defendants, plaintiff 
Everline Lewis and other members of her class on the 
ground that a member of her family, although not living 
with her is expecting an illegitimate child:

2. Evicting or threatening to evict from any public 
housing project under the control of the defendants, plain­
tiff Margaret Truss and other members of her class on 
the ground that she is expecting an illegitimate child;

3. Instituting any proceedings to evict, or further 
threatening to evict, plaintiffs and/or any members of the 
classes they represent and;

4. Evicting or threatening to evict plaintiffs and other 
members of their class from public housing projects under 
the control of defendants, without:



14

a. proper and sufficient notice;

b. adequate and reasonable grounds;

c. granting a fair hearing on the charges allegedly 
permitting or requiring their eviction.

Plaintiffs pray that this relief be granted, pending hear­
ing and determination of their motion for preliminary or 
interlocutory injunctions on the ground that immediate and 
irreparable injury, loss and damage will result to them 
and the members of their class before notice can be served 
and a hearing had thereon, as more fully appears from 
the complaint attached hereto.

The critical question is whether defendants may, pur­
suant to an established policy, properly evict or threaten 
to evict the named plaintiffs and members of their class 
from public housing projects in the City of Talladega be­
cause a member of their family (or they themselves) is 
expecting or has an illegitimate child. The named plaintiffs 
have been notified that they must vacate the premises 
they presently occupy by February 10, 1987. As long as 
defendants continue to maintain their present policy, other 
tenants in the public housing projects of the City of Tal­
ladega are in danger of being evicted or threatened with 
eviction. If these evictions are not enjoined irreparable 
injury will result, since plaintiffs will be forced to leave 
the premises controlled by defendants and will have to 
live in sub-standard housing, to the detriment of their 
health and that of their children. Further, unless this 
Court acts to immediately grant the requested temporary 
restraining order plaintiffs may be irretrievably denied, 
by their eviction, the right to have their federal consti­
tutional claims litigated in federal court because the oc­
currence of the evictions may render their claims moot.

Motion for Temporary Restraining Order



15

Therefore, a temporary restraining order is required in 
order to preserve the status quo pending the final resolu­
tion of the issues more fully raised by the complaint of the 
plaintiffs.

The reason and grounds for a temporary restraining 
order and a preliminary injunction are set out more fully 
in plaintiffs’ brief in support of this motion.

Respectfully submitted,

/ s /  Obzell B illingsley, Je.
Obzell B illingsley, Jb.

1630 Fourth Avenue North 
Birmingham, Alabama 35203

Chables H. Jones, Jb.
Chakles Stephen Ralston 
Jack Geeenbebg

10 Columbus Circle
New York, New York 10019

Petbb A. H all

1630 Fourth Avenue North 
Birmingham, Alabama 35203

Attorneys for Plaintiffs

F iled in Clebk’s Office 
Nobthebn Distbict of A labama

F eb 10 1967

W illiam E. Davis 
Clebk, U. S. Distbict Coubt

By Jewel M. Massey 
Deputy Clerk

Motion for Temporary Restraining Order



16

IN THE UNITED STATES DISTRICT COURT 

F oe the Nobthebn Distbict op Alabama 

E astern Division

Motion for Preliminary Injunction

[same title]

Motion pob Preliminary I njunction

Plaintiffs, upon the sworn complaint filed in this case, 
move this Court for a preliminary injunction pending 
final hearing and determination of this case, enjoining 
the defendants, their agents, servants, employees, suc­
cessors, and all persons in active concert and participation 
with them from :

1. Evicting or threatening to evict from any public 
housing project under the control of defendants, plaintiff 
Everline Lewis and other members of her class on the 
ground that a member of her family, although not living 
with her is expecting an illegitimate child;

2. Evicting or threatening to evict from any public 
housing project under the control of the defendants, plain­
tiff Margaret Truss and other members of her class on 
the ground that she is expecting an illegitimate child;

3 . Instituting any proceedings to evict, or further 
threatening to evict, plaintiffs and/or any members of the 
classes they represent and;



17

4. Evicting or threatening to evict plaintiffs and other 
members of their class from public housing projects under 
the control of defendants, without :

a. proper and sufficient notice;

b. adequate and reasonable grounds;

c. granting a fair hearing on the charges allegedly 
permitting or requiring their eviction.

In the alternative, the plaintiffs pray that this Court 
enter a decree directing the defendants to refrain from 
enforcing their policy of automatically evicting plaintiffs, 
and the class they represent, in any of its public housing 
projects if a member of said class has or is expecting an 
illegitimate child.

Unless restrained by this Court, defendants will per­
form the acts referred to. Such action by the defendants 
will result in irreparable injury, loss and damage to the 
plaintiffs, as more particularly appears in the complaint 
filed in this cause. The issuance of a preliminary injunc­
tion herein will not cause undue inconvenience or loss to 
defendants but will prevent irreparable injury to plaintiffs.

W herefore, plaintiffs pray that this Court will issue 
a preliminary injunction immediately enjoining the defen­
dants from committing the acts complained of in their 
verified bill of complaint.

Plaintiffs pray that this Court will allow them their 
costs herein, reasonable counsel fees, and grant such other,

Motion for Preliminary Injunction



18

further, additional or alternative relief as may appear to 
the Court to be equitable and just.

Respectfully submitted,

/ s /  Orzell B illingsley, Je.
Oezell B illingsley, Jr.
Peter A. H all

1630 Fourth Avenue North 
Birmingham, Alabama 35203

Charles H. Jones, Jr.
Charles Stephen Ralston 
Jack Greenberg

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs

Motion for Preliminary Injunction

F iled in Clerk’s Oeeice 
Northern District of A labama

F eb 10 1967

W illiam E. Davis 
Clerk, U. S. District Court

By Jewel M. Massey 
Deputy Clerk



19

Order for Hearing on Preliminary Injunction

IN THE UNITED STATES DISTRICT COURT 

F oe the Northern Distbict of A labama 

E astern Division

[same title]

Obdeb foe H earing on Preliminary I njunction

On presentation and consideration of the complaint filed 
in this cause,
It Is Ordered, that the application for a preliminary 

injunction prayed for in the complaint be and the same is 
hereby set for hearing before the undersigned in Birming­
ham, Alabama, on the 20th day of February, 1967, at 
9 :3Q o’clock A.M., in the United States District Court Room 
in said City; and that a copy of this order be served im­
mediately with the summons and complaint upon each of 
the defendants and due return made according to law.

Done and Obdebed at Birmingham, Alabama, on this 
the 10th day of February, 1967.

/ s /  H . H. Grooms

U. S. District Judge

F iled in Clerk’s Office 
Nobthern District of A labama

Feb 10 1967

W illiam E. Davis 
Clebk, U. S. District Court

By Jewel M. Massey 
Deputy Clerk



20

IN THE UNITED STATES DISTRICT COURT

F ob the Northern District oe A labama 

E astern Division 

Civil A ction No. CA 67-106

Order

E verline Lewis and Margaret Truss,

vs.
Plaintiffs,

The H ousing A uthority oe the City oe T alladega, et al.,

Defendants.

This cause came on to be heard on plaintiffs’ verified 
complaint, and it appearing to the Court that the defen­
dants are committing unlawful acts or are about to commit 
unlawful acts as set forth in plaintiffs’ complaint, and 
will continue to do so unless restrained by Order of this 
Court, and that immediate and irreparable injury, loss 
and damage will result to plaintiffs before notice can be 
served and a hearing had on plaintiffs’ motion for a 
preliminary injunction in that plaintiffs are presently re­
siding in the Knoxville Homes, a public housing project 
operated by defendants and have been summarily notified 
to vacate said premises by February 10, 1967, solely be­
cause a daughter of plaintiff Everline Lewis, who does 
not reside with her mother on the premises involved, is 
expecting an illegitimate child and plaintiff Margaret Truss,



21

a resident of the subject project, is the mother of an il­
legitimate child, it is

Ordered that The Housing Authority of the City of 
Talladega, Alabama; and William J. Munroe, individually 
and in his capacity as Executive Director of the Housing 
Authority of the City of Talladega; their agents, em­
ployees, successors and all persons in active concert and 
participation with them be, and they are hereby restrained 
from in any manner, either directly or indirectly, evicting 
or threatening to evict the plaintiffs from the aforesaid 
Knoxville Homes, provided that plaintiffs give security in 
the sum of $250.00 for the payment of such costs and dam­
ages as may be incurred or suffered by any party who 
is found to have been wrongfully enjoined or restrained, 
such bond to be approved by the Court or by the clerk of 
the Court; and it is further

Ordered, that this Order expire within 10 days after 
entry unless within such time on Order for good cause 
shown it is extended, or unless the defendants consent 
that it may be extended for a longer period; and it is 
further

Ordered, that copies of this Order (and of the plaintiffs’ 
complaint), together with proper summons issued by the 
clerk of this Court, be immediately served by the United 
States Marshal upon the defendants.

Order



22

Issued at 3:13 P.M., February 10th, 1967.

/ s /  H. EL Gbooms
U nited States Distbict Judge

Order

F iled in Cleek’s Office 
Nobtfiebn Distbict of A labama

F eb 10 1967

W illiam E. Davis 
Clebk, U. S. Distbict Coubt

By J ew el  M. M assey

Deputy Clerk



23

Bond

UNITED STATES DISTRICT COURT 

Northern District of A labama 

Civil A ction No. CA 67-106

State of A labama,
Jefferson County

K now A ll Men by T hese Presents, that Everline Lewis 
and Margaret Truss, as principals and Peter A. Hall and 
Orzell Billingsley, Jr., as surety, are held and firmly bound 
unto T he H ousing A uthority of the City of Talladega, 
A labama; and W illiam J. Munroe, individually and in his 
capacity as Executive Director of the Housing Authority 
of the City of Talladega, in the penal sum of Two Hundred 
Fifty ($250.00) Dollars, for the payment thereof well and 
truly to be made, we bind ourselves, our successors and 
assigns, jointly and severally, by these presents:

The condition of this bond is such that:

E verline Lewis and Margaret Truss have filed in the 
Court a Motion for, and have been granted a Temporary 
Restraining Order restraining The Housing Authority of 
the City of Talladega, Alabama, and William J. Munroe, 
individually and in his capacity as Executive Director of 
the Housing Authority of the City of Talladega, their 
agents, employees, successors and all persons in active 
concert and participation with them from directly or in­
directly evicting or threatening to evict the plaintiffs from 
Knoxville Homes, a public housing project operated by 
said defendants.

Now, T herefore, I f  said plaintiffs shall pay or cause to 
be paid all costs and damages as may be incurred or suf-



24

Bond

fered by defendants by reason of having been wrongfully 
restrained, then this obligation shall be void; otherwise it 
shall remain in full force and effect.

I n W itness W heeeoe, we, the above and undersigned 
principals and surety, have hereunto set our hands and 
seals on this 10th day of February, 1967.

E vebline Lewis and Mabgaret Truss

B y : / s/  Orzell B illingsley, Jr. (Seal) 
Attorney for Plaintiffs 
Everline Lewis and 
Margaret Truss

/ s /  Peter A. H all

/ s /  Orzell B illingsley, Jr.

Approved this 14th day of 
February, 1967.

/ s /  H. H. G rooms

U. S. District Judge

F iled in Clerk’s Oeeice 
Northern District oe A labama

F eb 13 1967

W illiam E. Davis 
Clerk, U. S. District Court

By Jewel M. Massey 
Deputy Clerk



25

IN THE UNITED STATES DISTRICT COURT

P oe the Noethers District of A labama 

E asters Division

Order

[same title]

O r d e r

The motion for preliminary injunction being duly set for 
hearing on this date at 9 :30 a.m., come the parties and make 
known to the Court that they will attempt to stipulate the 
facts in lieu of taking depositions and that this will require 
some time. Accordingly, they have consented that the tem­
porary restraining order be continued in force and effect 
pending an application of one of the parties, upon notice 
to the other, to set the same for further hearing. The 
Court concurs in the request for a continuance.

It is, therefore, Ordered, A djudged and Decreed that 
pending the application of one of the parties, after the no­
tice to the other, to reset the hearing for preliminary in­
junction, the temporary restraining order be and the same 
is hereby continued in force and effect by agreement of 
the parties herein, and pending the further orders of this 
Court.

It is understood that the plaintiffs will continue to pay 
rent and such payment will be without prejudice to the 
rights of either party.



Order

Done and Ordered, this the 20th day of February, 1967.

/ s /  H. H. Grooms

United States District Judge

F iled in Clerk’s Office 
Northern District of A labama

F eb 20 1967

W illiam E. Dayis 
Clerk, U. 8. District Court

By J ew el  M. M assey

Deputy Clerk



27

IN THE UNITED STATES DISTRICT COURT

F ob the N orthern District of A labama 

E astern Division 

Civil A ction 67-106

Motion to Dismiss

Everline L ewis and Margaret Truss,

v.
Plaintiffs,

T he H ousing A uthority of the City of Talladega, et al.,

Defendants.

M otion to Dismiss

Now come the Defendants and move the Court as follows:

I,
To dismiss this action on the following separate and 

several grounds:

A. That this Court lacks jurisdiction over the subject 
matter attempted to be alleged in that it appears from the 
face of the complaint that no Plaintiff, or any member of 
a class which she purports to represent, has been denied 
any right or privilege guaranteed or afforded by the Con­
stitution of the United States or any Act of Congress, and 
there are no other allegations in the complaint purport­
ing to set up any other grounds for jurisdiction in this 
Court to grant the relief sought in this cause.



28

B. The Housing Authority of the City of Talladega is 
a municipal corporation of the State of Alabama, and 
exercises only such authority as is conferred upon it by 
the laws of Alabama. The Defendants have not (and 
there is no allegation in the complaint to the contrary) at­
tempted to exercise any authority or powers granted to 
them by the Constitution of the United States or any Act 
of Congress. If the Plaintiffs desire to attack the exercise 
of rights and powers granted to Defendants by the State 
of Alabama, they must do so in the courts of Alabama. 
Original jurisdiction for such attack does not rest in the 
Federal courts.

C. The allegations of fact in the complaint do not bring 
the Plaintiffs under the provisions of any of the statutes 
and constitutional provisions to which they refer for juris­
diction in Paragraph I of the complaint.

D. The statutes and constitutional provisions referred 
to in Paragraph I of the complaint are not invoked by the 
allegations of the complaint.

E. The complaint fails to state a claim upon which 
relief can be granted.

F. This Court does not have jurisdiction of this cause 
under any of the authorities cited under Paragraph I of 
the complaint.

Gf. It affirmatively appears from the allegations of the 
complaint that the Plaintiffs have not been, on the ground 
of race, color or national origin, excluded from participa­
tion in, or denied the benefits of, or subjected to discrimi­

Motion to Dismiss



29

nation under any program or activity receiving Federal 
financial assistance.

H. The complaint contains no allegation which would 
support a claim that Plaintiffs, or either of them, or that 
any member of a class which they purport to represent, 
have been, on the ground of race, color or national origin, 
excluded from participation in, or denied the benefits of, or 
subjected to discrimination under any program or activity 
receiving Federal financial assistance.

II.

To strike from the complaint the following paragraphs 
and portions thereof:

1. The words “ and by Section 601 of the Civil 
Eights Act of 1964” in Paragraph I of the complaint.

2. Sub-paragraphs D and E in Paragraph II of 
the complaint.

3. The words “and by Section 601 of the Civil 
Eights Act of 1964” at the end of Paragraph II of the 
complaint.

4. Sub-paragraph C of Paragraph VII of the com­
plaint.

5. Sub-paragraphs 4 and 5 of the prayer of the 
complaint.

6. The words “and that the policies and practices 
set out above violate rights protected by the Constitu­
tion and laws of the United States” at the end of the 
second paragraph of Paragraph 5 of the prayer of the 
complaint.

Motion to Dismiss



30

and, for grounds therefor, assign the following, separately 
and severally:

A. Plaintiffs cannot bring a class action for declaratory 
or injunctive relief because it affirmatively appears that 
plaintiffs have not been denied a privilege or subjected to 
a possible irrevocable injury.

B. No facts are alleged in the complaint which support 
an allegation that Plaintiffs, or any class which they pur­
port to represent, have been, on the ground of race, color 
or national origin, excluded from participation in, or de­
nied the benefits of, or subjected to discrimination under 
any program or activity receiving Federal financial as­
sistance.

C. Neither of the Pliantiffs allege that they, or any 
member of a class which they purport to represent, have 
been denied occupancy in any Housing Authority of the 
Defendant, The Housing Authority of the City of Tal­
ladega, in which they desire to live.

D. The complaint affirmatively states that the Plaintiffs 
are presently residing in the low rent housing project of 
the Defendant, and, therefore, the complaint fails to estab­
lish how either of them could be damaged or injured.

E. The complaint affirmatively shows that the class 
which Plaintiffs purport to represent are residing in the 
low rent housing project of the Defendant, and, therefore, 
the complaint fails to establish how any of said class could 
be damaged or injured.

F. The complaint fails to allege or disclose how in any 
manner whatsoever the Plaintiffs, or any member of the

Motion to Dismiss



31

class which they purport to represent, have been denied 
any right or privilege on the grounds of race, color or na­
tional origin.

G. The complaint fails to allege or disclose how in any 
manner whatsoever the Plaintiffs, or any member of the 
class which they purport to represent, have been dis­
criminated against on the grounds of race, color or na­
tional origin.

H. The complaint does not disclose how in any manner 
whatsoever, or to any extent whatsoever, the Plaintiffs, or 
any member of the class which they purport to represent, 
have been excluded from participation in, denied the ben­
efits or, or discriminated against under any Federally as­
sisted program on grounds of race, color or national origin, 
or under any other ground.

/ s /  Byron D. Boyett 
Byron I). B oyett 
Attorney for the Defendants

Of Counsel:

Dixon, W ooten & B oyett 
P. 0. Drawer 646 
Talladega, Alabama 35160

Motion to Dismiss

F iled in Clerk’s Oeeioe 
Northern District op A labama

F eb 28 1967

W illiam E. Davis 
Clerk, U. S. District Court

By Jewel M. Massey 
Deputy Clerk



32

IF  THE UNITED STATES DISTRICT COURT

F oe the Nobthekn Distbict op A labama 

E astebn Division

Motion in Opposition to Defendants’ Motion to Dismiss

[same title]

Motion in Opposition to Defendants’ 
Motion to Dismiss

I
The Court has jurisdiction over the subject matter of 

this suit.
II

Plaintiffs have alleged sufficient facts to support their 
reliance upon the statutes and constitutional provisions 
which they have cited to invoke the jurisdiction of this 
Court.

I l l

Plaintiffs’ complaint states a claim upon which relief 
can be granted.

IV

Plaintiffs should not be required to strike any portions 
of their complaint.



33

Respectfully submitted,

/s/ Peter A. H all 
P eter A. H all 
Orzell Billingsley

1630 Fourth Avenue, North 
Birmingham, Alabama

Charles H. Jones, Jr.
Charles Stephen Ralston 
Jack Greenberg

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs

Motion in Opposition to Defendants’ Motion to Dismiss

F iled in Clerk’s Opeice 
Northern District of A labama

A pr 24 1967

W illiam E. Davis 
Clerk, U. S. District Court

By Jewel M. Massey 
Deputy Clerk



34

IN THE UNITED STATES DISTRICT COURT 

F ob the Northern District oe A labama 

Eastern Division

Supplemental Motion to Dismiss

[same title]

Supplemental Motion to Dismiss

Now come the Defendants and represent to the Court 
that notices heretofore given to the Plaintiffs in this cause 
on January 23, 1967, terminating the tenancies of the Plain­
tiffs, have been cancelled and revoked, with the right to the 
Plaintiffs to continue in possession of said premises under 
existing leases; and the action by the Defendants to remove 
the Plaintiffs from the public housing project operated by 
the Defendants has been vacated and rescinded (see Ex­
hibits “A ” and “B” attached).

Now come the Defendants and move the Court to dismiss 
this action on the grounds that the issue presented by the 
Plaintiffs’ complaint in this cause is now a moot issue.

Wherefore, upon the grounds herein assigned and upon 
the grounds previously assigned in the Defendants’ orig-



35

inal Motion to Dismiss on file in this cause, the Defend­
ants now move the Court to dismiss the Plaintiffs’ action.

Supplemental Motion to Dismiss

/ s /  Byron D. B oyett 
Byron D. B oyett 
A ttorn ey  fo r  the Defendants

O f Counsel:

Dixon, W ooten & Boyett 
P. 0. Drawer 646 
Talladega, Alabama 35160

F iled in Clerk’s Office 
Northern District of A labama

Jun 5 1967

W illiam E. Davis 
Clerk, U. S. District Court

By M. Claire Parsons 
Deputy Clerk



36

Exhibit “A” Annexed to Foregoing Motion

HOUSING AUTHORITY
OF THE

City of Talladega

151 CURRY COURT
T a l l a d e g a , A l a .

Curry Court 
Area Code 205 

362-2063

K noxville H omes 
Area Code 205 

362-4998
May 31, 1967

Mrs. Everline Lewis 
44 Knoxville Homes 
Talladega, Alabama

Dear Tenant:

You are hereby notified that the notice of termination 
of tenancy heretofore given on January 23, 1967, is can­
celled and revoked and you may continue to occupy said 
premises under the existing or any subsequent lease now 
in force and effect.

Yours very truly,

H ousing A uthority of the City

of Talladega

/ s /  W illiam J. M unroe 
W illiam J. Munroe 
E xecu tive D irector

WJM/mfp



37

Exhibit “ B” Annexed to Foregoing Motion

HOUSING AUTHORITY
OF THE

City of Talladega

151 CUBBY COURT
T a l l a d e g a , A l a .

Cubby Court 
Area Code 205 

362-2063

K noxville H omes 
Area Code 205 

362-4998
May 31, 1967

Mrs. Margaret Truss 
50 Knoxville Homes 
Talladega, Alabama

Dear Tenant:

You are hereby notified that the notice of termination of 
tenancy heretofore given on January 23, 1967, is cancelled 
and revoked; and you may continue to occupy said prem­
ises under the existing or any subsequent lease now in 
force and effect.

Yours very truly,

H ousing A uthority of the City 
of Talladega

/ s /  W illiam J. Munboe 
W illiam J. Munroe 
E xecutive D irector

WJM/mfp



Order of Dismissal

IN THE UNITED STATES DISTRICT COURT 

F ob the Nobthebn Distbict of A labama 

E astebn Division

[same title]

Obdeb oe Dismissal

This matter came on for hearing on the regnlar motion 
docket at this time upon the defendants’ motion to dismiss 
and the plaintiffs’ motion in opposition thereto. It being 
made known to the Court that the defendants have with­
drawn the notice to terminate and the notice to vacate, 
the case will be dismissed on motion of the defendants.

It is noted that counsel for the plaintiffs are not present.

It is, therefore, Obdebed, A djudged and Decbeed that the 
defendants’ motion to dismiss be and the same is hereby 
granted, and this action be and the same is hereby dis­
missed at the costs of the plaintiffs.



89

Done and Ordered, this the 2nd day of June, 1967.

/ s /  H. H. Grooms

United S tates D istrict Judge

Order of Dismissal

(Seal)

F iled in Clerk’s Office 
Northern District of A labama

Jun 5 1967

W illiam E. Davis 
Clerk, U. S. District Court

By M. Claire Parsons 
Deputy Clerk

A  True Copy 
W illiam E. Davis 

Clerk, U. S. District Court 
Northern District of A labama

By M. Claire Parsons 
Deputy Clerk



40

Motion for Relief From an Order

IN THE UNITED STATES DISTRICT COURT 

F or the Northern District of A labama 

E astern Division

[same title]

Motion for R elief from an Order

Plaintiffs, pursuant to Rule 60(b) of the Federal Rules 
of Civil Procedure, move this Court to vacate and set aside 
the final order granting defendants’ Supplemental Motion 
to Dismiss, entered against plaintiffs in this cause on the 
2nd day of June, 1967, and to grant leave to plaintiffs to 
file a response with an opportunity for oral argument, on 
the ground that defendants failed to serve plaintiffs with 
proper notice of a hearing of said motion as required by 
Rule 6(d) of the Federal Rules of Civil Procedure.

Respectfully submitted,

/ s /  Peter A. H all 
Peter A. Hall 
Orzell B illingsley

1630 Fourth Avenue, North 
Birmingham, Alabama

Charles H. Jones, Jr.
Charles Stephen Ralston 
Jack Greenberg

10 Columbus Circle 
New York, New York 10019

A ttorn eys fo r  Plaintiffs



41

M otion fo r  B elie f F rom  an Order

F iled in Clebk’s Oeeioe 
N orthern District of A labama

Jun 7-1967

W illiam E. Davis 
Clerk, U. S. District Court

By Jewel M. Massey 
Deputy Clerk



42

IN THE UNITED STATES DISTRICT COURT 

F ob the Northern District of A labama 

E astern Division

Order on Motion for Relief

[ sam e  t it l e ]

Order on M otion eor R elief

The foregoing Motion presented this day to the Hon­
orable H. H. Grooms, District Judge, and continued for 
hearing on July 14, 1967 at 1 :30 p.m.

Done this 7 day of June, 1967.
/ s /  H. H. Grooms 

D istrict Judge

F iled in Clerk’s Office 
Northern District of A labama

Jun 7-1967

W illiam E. Davis 
Clerk, U. S. District Court

By Jewel M. Massey 
Deputy Clerk



43

Motion in Response to Defendants’ Supplemental 
Motion to Dismiss

IN THE UNITED STATES DISTRICT COURT

F oe the Northern District of A labama 

E astern Division

[same title]

Motion in Response to Defendants’ 
Supplemental M otion to Dismiss

Come now the plaintiffs and move the Court to overrule 
and dismiss defendants’ Supplemental Motion to Dismiss, 
and cite as grounds therefor the following:

I

The withdrawal of the notice to terminate and the notice 
to vacate given plaintiffs does not render this case moot 
as to the plaintiffs.

II

The withdrawal of the notice to terminate and the no­
tice to vacate given plaintiffs does not render this class 
action moot as to the members of the class plaintiffs rep­
resent.

III

In any event, since the Authority’s policy of excluding 
families with illegitimate children is still in full force, both



44

M otion in R esponse to D efendants’ Supplemental 
M otion to Dismiss

plaintiffs and the members of their class continue to be 
subjected to its invocation against them.

Respectfully submitted,

/ s /  P eter A. H all 
P eter A. H all 
Orzell  B illingsley

1630 Fourth Avenue, North 
Birmingham, Alabama

Charles H. Jones, Jr.
Charles Stephen Ralston 
Jack Greenberg

10 Columbus Circle
New York, New York 10019

A ttorn eys fo r  Plaintiffs



45

I

The Withdrawal of the Notice to Terminate and the Notice 
to Vacate Given Plaintiffs Does Not Render This Case Moot as 
to the Plaintiffs.

In their Supplemental Motion to Dismiss dated May 31, 
1967, defendants indicated that they had withdrawn the 
notice to terminate and the notice to vacate previously 
given plaintiffs. Defendants alleged that this withdrawal 
had the effect of rendering the case moot and therefore 
entitled them to a motion to dismiss. Plaintiffs submit that 
this withdrawal does not render the case moot as to them.

It is well settled in this Circuit that the voluntary ces­
sation of alleged unlawful acts does not render a case moot. 
In A nderson  v. City o f A lbany, 321 F.2d 649 (5th Cir. 1963) 
it was similarly argued that the city’s repeal of segregation 
ordinances precluded a right to an injunction against re­
newal of the objectionable laws. In response to this con­
tention, the court stated:

What has been adopted can be repealed, and what has 
been repealed can he readopted. We conclude, there­
fore, that the plaintiffs are entitled to have their in­
junction against State action depriving them of their 
constitutional rights based on the record at the time 
the case was tried. At p. 657.

Likewise in B ailey  v. Patterson, 323 F.2d 201 (5th Cir. 
1963), cert, denied, 376 U.S. 910 (1964), it was recognized 
that plaintiffs were entitled to injunctive relief [notwith­

Memorandum in Support of Plaintiffs’ Motion in
Response to Defendants’ Supplemental

Motion to Dismiss



46

standing a declaratory judgment that the acts of the de­
fendant were unlawful] because . . the threat of con­
tinued or resumed violations of appellants’ federally pro­
tected rights remain actual. Denial of injunctive relief 
might leave appellees ‘free to return to [their] old ways.’ 
United S tates v. W . T. Grant, 345 IT.S. 629 . . At p. 205. 
Cases are legion to this same effect.

Here, it is even clearer that plaintiffs’ case is not moot 
since defendants have not even pretended to change or 
cease using the basic policy of which plaintiffs complain. 
The Housing Authority regulation empowering the defend­
ants to evict a tenant family if any member of that family 
is expecting, or has an illegitimate child, is still intact. 
There has been no finding on the lawfulness of this regula­
tion and defendants are free to issue a new notice to termi­
nate and notice to vacate. These notices may be issued with 
the same suddenness which characterized their withdrawal. 
Surely this Court does not want the plaintiffs to be living 
in a state of suspension in which they are continually sub­
ject to a notice to terminate which may be issued at the 
whim of defendants. The existence of this regulation 
negates any possibility of mootness.

II
The Withdrawal of the Notice to Terminate and the Notice 

to Vacate Given Plaintiffs Does not Render Tills Class Action 
Moot as to the Members of the Class Plaintiffs Represent.

Plaintiffs have brought this case as a class action in be­
half of all other persons similarly situated. Acts taken by 
the defendants with respect to plaintiffs cannot render the 
case moot with respect to the class members’ rights to have

Memorandum in Support of Plaintiffs’ Motion in Response
to Defendants’ Supplemental Motion to Dismiss



47

the issue presented resolved by this Court. In an en banc 
decision rendered by the Fourth Circuit— C ypress v. N ew­
port N ews General and Non-Sectarian H ospital A ss ’n , ------
F .2 d ------  (No. 10,672, March 9, 1967)—the court rejected
the argument that the controversy was moot because one 
of the Negro physician plaintiffs was granted staff privi­
leges. Plaintiffs had sued in a class action to enjoin dis­
crimination, inter alia, in the admission of Negro physi­
cians to the hospital staff. In language applicable to the 
instant case, the court said:

Such a last minute change of heart is suspect, to say 
the least. We recently had occasion to observe in 
L ankford  v. Gelston, 364 F.2d 197, 203 (4th Cir. 1966), 
under somewhat different circumstances, that ‘protes­
tations of repentance and reform timed to anticipate 
or to blunt the force of a lawsuit offer insufficient as­
surance’ that the practice sought to be enjoined will 
not be repeated. See United S tates v. Oregon State 
Medical Soc’y, 343 TT.S. 326, 333 (1952).

The need for injunctive relief is not to be judged in 
a vacuum. Just as it is an equitable axiom that an in­
junction will not issue merely because no demonstrable 
harm will result from its issuance, so an equity court 
will unhesitatingly grant this relief where in its estima­
tion the circumstances reasonably indicate its neces­
sity. Our appraisal must take into consideration more 
than the single, tardy, reluctant, and incomplete step— 
the admission of Dr. Cypress.

The members of the class as well as the plaintiffs them­
selves have the right to have an adjudication of their claims

Memorandum in Support of Plaintiffs’ Motion in Response
to Defendants’ Supplemental Motion to Dismiss



48

notwithstanding the voluntary suspension of the notices to 
terminate and vacate heretofore given the named plaintiffs.

/ s /  Peter A. H all 
Peter A. H all 
Orzell Billingsley

1630 Fourth Avenue, North 
Birmingham, Alabama

Charles H. Jones, Jr.
Charles Stephen Ralston 
Jack Greenberg

10 Columbus Circle 
New York, New York 10019

A ttorn eys fo r  P laintiffs

Memorandum in Support of Plaintiffs’ Motion in Response
to Defendants’ Supplemental Motion to Dismiss

F iled in Clerk’s Office 
N orthern District of A labama

Jun 14 1967

W illiam E. Davis 
Clerk, U. S. District Court

B y  J e w e l  M . M a s s e y

Deputy Clerk



49

IN THE UNITED STATES DISTRICT COURT 

P oe the Northern District of A labama 

E astern Division

Order on Motion for Relief From the Order of
June 2, 1967

[same title]

Order on Motion for R elief from the Order 
of June 2, 1967

The defendants’ original motion to dismiss filed on Feb­
ruary 28, 1967, was set on the regular motion docket on 
June 2, 1967. A  copy of this docket was forwarded to 
plaintiffs’ counsel. On May 31, 1967, the defendants wrote 
the plaintiffs advising them that the notices of termination 
of tenancy were cancelled and revoked and that they could 
continue to occupy said premises under the existing or any 
subsequent lease then in force and effect. The basis for 
the original eviction was the applicability of a rule to the 
effect that the tenant would be evicted if an occupant of 
the leased premises has or is expecting an illegitimate 
child. The motion to dismiss was amplified by attaching a 
copy of the revocation of the eviction notices. When the 
motion docket was sounded on June 2, 1967, counsel for 
the plaintiffs did not appear, and it appeared to the Court 
that the action was rendered moot by virtue of the fact 
that the eviction notices had been revoked.

On June 7, 1967, the plaintiffs filed a motion to vacate 
and set aside the order of June 2, 1967, and upon the hear­
ing on this date it appears that one of the plaintiffs who



50

had vacated her leasehold has re-occupied the premises and 
that there is no present threat to evict either of the plain­
tiffs or any other party for violation of the rule referred to.

The counsel for the Housing Authority has stated in 
open court that the Authority is complying with the circular 
of the Department of Housing and Urban Development 
which was involved in the decision of Thorpe v. H ousing  
A uthority  o f the C ity o f Durham, No. 712, October Term, 
1966, and that the aforesaid rule will further in all respects 
be subordinated to the circular referred to.

The plaintiffs insist upon* a hearing to test the constitu­
tionality of the rule. However, the Court does not feel that 
it should attempt to meet this constitutional issue in the 
present posture of the case and under the undisputed facts 
as disclosed by statement of counsel. The Court, however, 
will amend the order of dismissal so that the action will 
be dismissed without prejudice, and the Court will permit 
a re-opening of the case without the necessity of the institu­
tion of a new suit at any time that the rights of the plain­
tiffs might be impaired by any wrongful or unconstitu­
tional acts on the part of the defendants.

It is, therefore, Ordered, A djudged and Decreed that the 
last paragraph of the order of dismissal entered herein on 
June 2, 1967, be and it hereby is amended to read as fol­
lows :

“It is, therefore, Ordered, A djudged and Decreed 
that the defendants’ motion to dismiss be and the same 
is hereby granted, and this action be and the same is 
hereby dismissed, without prejudice, however.”

The plaintiffs will be permitted on proper notice and 
upon good cause shown to reinstate this action.

Order on Motion for Relief From the Order of
June 2, 1967



51

No costs are taxed herein.

Done and Ordered, this the 14th day of July, 1967.

/&/ H. H. Grooms

United S tates D istrict Judge

Order on Motion for Relief From the Order of
June 2, 1967

F iled in Clerk’s Office 
Northern District of A labama

Jul 18 1967

W illiam E. Davis 
Clerk, U. S. District Court

By Jewel M. Massey 
Deputy Clerk

(Seal)

A  True Copy 
W illiam E. Davis, Clerk 

U nited States District Court 
Northern District of A labama

By J e w e l  M . M a s s e y

Deputy Clerk



52

Notice of Appeal

IN THE UNITED STATES DISTRICT COURT 

F oe the Northern District of A labama 

E astern Division

[ sam e  t it l e ]

N otice of A ppeal

Notice is hereby given that Everline Lewis and Margaret 
Truss, plaintiffs herein, hereby appeal to the United States 
Court of Appeals for the Fifth Circuit from an order of 
the United States District Court for the Northern District 
of Alabama, Eastern Division, dismissing this action. Said 
order was dated July 14, 1967 and was filed in the Clerk’s 
office on July 18, 1967.

Dated: August 3, 1967.

/ s /  Peter A. H all 
Peter A. Hall 
Orzell B illingsley

1630 Fourth Avenue, North 
Birmingham, Alabama

Charles H. Jones, Jr.
Charles Stephen Ralston 
Gabrielle A. K irk 
Jack Greenberg

10 Columbus Circle
New York, New York 10019

A ttorn eys fo r  Plaintiffs



53

Notice of A ppeal

F iled in Clerk’s Office 
Northern District of A labama

A ug 3 -1967

W illiam E. Davis 
Clerk, U. S. District Court

By Jewel M. Massey 
Deputy Clerk



54

Clerk’s Certificate

U nited States oe A mebica,
Northern District oe A labama

I, W illiam E. Davis, Clerk of the United States District 
Court for the Northern District of Alabama do hereby cer­
tify that the foregoing pages numbered from one (1) to 
sixty-two (62), both inclusive, comprise the original plead­
ings in this action and are herewith attached as a full, true 
and correct transcript of the record on appeal in the Mat­
ter of E verline L ewis and Margaret Truss, Appellants, 
vs. T he H ousing A uthority oe the City oe Talladega, 
A labama, et al., Appellees, Civil Action No. 67-106, East­
ern Division, as fully as the same appears of record and on 
file in my office.

I n W itness W hereof, I have hereunto subscribed 
my name and affixed the seal of said Court at 
Birmingham, Alabama, in said District, on this the 
11th day of August, 1967.

(Seal)
/ s /  W illiam  E. D avis

W illiam  E. D avis, Clerk  
United S tates D istrict Court



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