Correspondence and Memos from Still to Blacksher, Menefee, and Guinier

    Edward Still % 
attorney at law 

26 January 1987 

James U. Blacksher, Esq. 
Blacksher Menefee & Stein P.A. 
P.O. Box 1051 

Mobile, AL 36633 

"Larry Menefee, Esq. 
Blacksher Menefee & Stein P.A. 
Pifth Floor, Title Bldg. 
300 21st Street North 
Birmingham AL 35203 

Lani Guinier, Esq. 
Pamela Karlan, Esq. 
NAACP Legal Defense Fund 
99 Hudson Street 
New York, NY 10013 

re: Dillard v Crenshaw, C.A. No. 85-T-1332-N 

Dear folks: 

Cable: VOTELAW 

Telex: 6502416331 MCI 

MCI Mail: 241-6331 

714 South 29th Street 

Birmingham, AL 35233-2810 

205/322-6631 

Enclosed are the memos we decided I should write, plus a 
short memo on why the State can be named as a defendant. 

If any of this is too brief to be understood, let me know. 

Sincerely, 

Edward Still 

ES/+ 

encl. 

 



  

Edward Still 
attorney at law 

Cable: VOTELAW 
Telex: 6502416331 MCI 
MCI Mail: 241-6331 

714 South 29th Street 

Birmingham, AL 35233-2810 

205/322-6631 

 



  

Memo 

ADC as ”class” representative 

23 January 1987 

Edward Still 

STATEMENT FOR THE MOTION 

The Alabama Democratic Conference (ADC) is a political 

organization composed primarily of black Alabama voters in nearly 

every county of the state. Its purposes include the elimination 

of barriers to full participation by blacks in the political 

processes in Alabama and the nation. 

STATEMENT FOR THE MEMO 

The plaintiffs seek to add the Alabama Democratic Conference 

(ADC) as a party plaintiff. The ADC will act as the 

representative of its members who reside in the counties or 

municipalities which will be affected by the Motion for 

Additional Relief. The ADC meets the three-part test for such 

representation set out in Hunt v Washington Apple Advertising 

Comm’n, 432 US 333, 343 (1977): 

[A]n association has standing to bring suit on behalf of its 
members when: (a) its members would otherwise have standing 
to sue in their own right; (b) the interests it seeks to 
protect are germane to the organization’s purpose; and (c) 
neither the claim asserted not the relief requested requires 
the participation of individual members in the lawsuit. 

Members of the ADC (black voters) could bring this action -- and, 

in fact, many of the original plaintiffs in this suit were 

members of the ADC. As noted in the Motion, one of the ADC’s 

 



  

purposes is the elimination of barriers to full participation by 

blacks in the political process. Finally, there is no need for 

the individual members of the ADC to participate as plaintiffs; 

the claim the plaintiffs bring is not a personal one, but one 

which will inure to the benefit of all black voters in the 

particular governmental unit. To the extent there are any 

questions of fact to ke decided, they are entirely related to the 

governments and their elections and not to any particular blacks. 

To hold that individual black voters would have to be plaintiffs 

would be to hold that some blacks might lose a dilution case 

because of their personal characteristics or activities. We all 

know that such matters are extraneous to dilution suits. 

 



  

Memo 

res judicata 

23 January 1987 

Edward Still 

The State of Alabama should be bound by the findings 

previously made by this Court on the issue of the intentionally 

discriminatory nature of various election laws because the county 

commissions which were the original defendants in this action had 

a community of interest with the State and because the State was 

aware of the issues in the earlier phase of this suit. “Under 

the federal law of res judicata, a person may be bound by a 

judgment even though not a party if one of the parties to the 

suit is so closely aligned with his interests as to be his 

virtual representative. #*** The question whether a party’s 

interests in a case are virtually representative of the interests 

of a nonparty is one of fact for the trial court.” Aerojet- 

General Corp. v Askew, 511 F24 710, (5th Cir 1975) (Dade 

County bound by decision in earlier suit against State Board of 

Education involving Board property on which County had a claim). 

Examples of virtual representation include the following: 

1. The United States has been precluded from 

relitigating in federal court an issue lost by a state in state 

court, since the two governments had cooperated in enforcement of 

the National Pollution Discharge Elimination System, United 

States v ITT Rayonier, Inc., 627 F2d 996 (9th Cir 1980). 

 



  

2. The City of Winooski is bound by a prior 

determination against the Vermont Public Service Board, its 

codefendant, that the VPSB had no authority to regulate power 

plants subject to the Federal Energy Regulatory Commission. 

Board of Elec. Light Comm’rs of Burlington v McCarren, 725 F2d 

176 (24 Cir -1933). 

The fact (which we should plead) that some of the counties 

asked the Attorney General to come into the suit will reinforce 

our point that the AG had actual knowledge of the suit. 

There are suits which reject the virtual representation 

theory, usually on the facts. See Wright, Miller, & Cooper, 

Federal Practice and Procedure Civil §4457 for further 

discussion. 

 



  

memo 

State as defendant 

26 January 1987 

Edward Still 

“Similarly, although Congress has power with respect to the 

rights protected by the Fourteenth Amendment to abrogate the 

Eleventh Amendment immunity, we have required an unequivocal 

expression of congressional intent to ‘overturn the 

constitutionally guaranteed immunity of the several States.’” 

Pennhurst State School & Hospital v Halderman, 465 US 89, 99 

(1984) (citations omitted). 

In Atascadero State Hospital v Scanlon, 87 LEd2d 171 (1985), 

the Supreme Court held that the Rehabilitation Act did not 

contain an express abrogation. The only words in the statute 

that would have made the State liable were “any program or 

activity receiving Federal financial assistance.” 

In contrast, Section 2 of the Voting Rights Act now provides 

as follows: “No voting qualification or prerequisite to voting 

or standard, practice, or procedure shall be imposed or applied 

by any state or political subdivision in a manner ....” 

It appears to me that the State of Alabama can be sued 

directly, rather than through its officials, in a Section 2 suit.