Dreyfus v. von Finck Petition for a Writ of Certiorari to the US Court of Appeals for the Second Circuit

    October Term , 1977

No. 77-120

Dougherty County, Georgia Board of Education, 
R. H. W arren, Chairman, Dougherty County Board 
of Education; F ranklin U. Cross, J. P. Cheevers, 
Harvey Cohen, Morgan Murphy, Chuck Nesbitt, 
Felix Marbry, Jr., Members, Dougherty County Board 
of Education; Paul Robertson, Superintendent, 
Dougherty County School System, Individually and in 
their official capacities,

versus Appellants

John E. W hite,
________  Appellee

Appeal from a Three-Judge Court in the United States 
District Court for the Middle District of Georgia, 

Albany Division

MOTION TO AFFIRM

John R. Myer
1515 Healey Building 
57 Forsyth Street 
Atlanta, Georgia 30303 

Attorney for Appellee

W il so n  - Epes Prin tin g  C o . ,  i n c . - Re 7 - 6 0 0 2  - W a s h INGTON, D . c .  2 0 0 0 1



In The

§«pmtn> (tail at %  Mmtpfc
October Term, 1977

No. 77-120

Dougherty County, Georgia Board of Education, 
R, H. Warren, Chairman, Dougherty County Board 
of Education; Franklin U. Cross, J. P. Cheevers, 
Harvey Cohen, Morgan Murphy, Chuck Nesbitt, 
Felix Marbry, Jr., Members, Dougherty County Board 
of Education; Paul Robertson, Superintendent, 
Dougherty County School System, Individually and in 
their official capacities,

Appellants
versus

John E. W hite,
Appellee

Appeal from a Three-Judge Court in the United States 
District Court for the Middle District of Georgia, 

Albany Division

MOTION TO AFFIRM

Appellee, pursuant to Rule 16 of the Rules of the 
Supreme Court of the United States and the letter of the 
Office of the Clerk dated September 8, 1977, moves that



2

the final judgment of the district court be affirmed on 
the ground that the question is insubstantial and does 
not warrant further argument.

STATEMENT

This is a direct appeal from the final judgment of a 
three judge district court specially constituted pursuant 
to 42 U.S.C. § 1973c and 28 U.S.C. § 2284 entered the 
28th day of April, 1977. That district court granted 
appellee a permanent injunction, pursuant to Section 
Five of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, 
enjoining the implementation of Rule 58 of the Board 
of Education of Dougherty County, Georgia, which re­
quired that employees offering for public elective office 
were required to take a leave of absence without pay 
during the period of their candidacy. The district court 
ruled that Rule 58 constituted a change in practice which 
required submission to the United States District Court 
or the United States Attorney General as required by 
Section Five of the Voting Rights Act.

Appellee concurs with the Statement of the Case as 
set forth in Appellants’ Statement as To Jurisdiction. 
Appellee would add however that by letter dated August 
26, 1976 the United States Attorney General advised 
Appellants that the change reflected by the adoption of 
Rule 58 was subject to the requirements of Section Five 
of the Voting Rights Act of 1965. In addition, Appellee 
John White alleged that he was the first Black citizen 
in recent history to seek election from Dougherty County 
to the Georgia State House of Representatives.



3

ARGUMENT

THE DECISION OF THE DISTRICT COURT SHOULD 
BE AFFIRMED BECAUSE THE QUESTION PRE­
SENTED IS NOT A SUBSTANTIAL QUESTION.

The three judge district court held that the State of 
Georgia is “ covered” by the pre-clearance requirements 
of Section Five of the Voting Rights Act of 1965. The 
court further held that Section Five, as broadly inter­
preted, sweeps “ over all phases of the electoral system” 
including any modification to the political process. The 
district court ruled that “ Rule 58 . . .  is such a modifica­
tion of the political process. By imposing a financial loss 
on its employees who choose to become candidates, it 
makes it more difficult for them to participate in the 
democratic process and, consequently, restricts the field 
from which the voters may select their representatives.” 
(Appendix, p. 7a). Since the Appellant Board of Educa­
tion had never submitted the change reflected in Rule 
58 to either the United States District Court for the 
District of Columbia or the United States Attorney Gen­
eral, the enforcement and implementation of Rule 58 was 
in violation of Section Five of the Voting Rights Act of 
1965.

The result reached by the district court is controlled 
by the broad interpretation of the coverage of Section 
Five given that section by this Court in Allen v. Board 
of Elections, 393 U.S. 544 (1969) ; Perkins V. Matthews, 
400 U.S. 379 (1971); and Georgia v. United States, 411 
U.S. 526 (1973). The decision of the district court be­
low did not of course rule that Rule 58 did in fact dis­
criminate. That decision is, in the first instance, left to 
the United States District Court for the District of 
Columbia or the United States Attorney General. The 
decision of the district court was limited to the question 
of whether this change was subject to the pre-clearance 
provisions of Section Five.



4

Finally, although not raised directly by the Appellants, 
the question of whether an entity such as the Board of 
Education, which does not register electors, is covered 
by Section Five is before this Court in United States of 
America v. Board of Commissioners of Sheffield, Ala­
bama, No. 76-1662, probable jurisdiction noted June 27, 
1977. On this question, Appellee incorporates herein by 
reference the Brief of the United States of America filed 
in that appeal.

CONCLUSION

For the foregoing reasons it is respectfully submitted 
that the Appellees have presented no substantial ques­
tion for the decision of this Court, and that the judg­
ment and decree of the district court should be affirmed.

Respectfully submitted,

John R. Myer 
1515 Healey Building- 
57 Forsyth Street 
Atlanta, Georgia 30303

Attorney for Appellee



CERTIFICATE OF SERVICE

I hereby certify that the foregoing motion to affirm 
has been served upon Jesse W. Walters, Esquire, Post 
Office Box 527, Albany, Georgia 31702, counsel of record 
for appellants by mailing a copy of said motion to him, 
first class postage prepaid, addressed as above.

This 14th day of October, 1977.

Elizabeth R. Rindskopp 
Attorney for Appellant



JOHN R. MYER
THOMAS A. BOWMAN 

ROBERT H. STROUP

ISIS HEALEY BUILDING 
57 FORSYTH ST., N.W. 

ATLANTA. GEORGIA 30303

GARY FLACK

ATTORNEYS AT LAW

October 24, 1977

Charles Stephen Ralston, Esq.
Suite 2030
10 Columbus Circle
New York, New York 10019
Re: White v, Dougherty County
Dear Steve:
I enclose for your information a copy of the School Board's 
Section 5 Appeal as well as our Motion to Affirm, which 
the Court ordered us to file. My best hunch is that the 
Court will hold the Dougherty County case until it disposes 
of Sheffield. Even if Justice wins Sheffield, this case 
poses the next (and most difficult) question: Does a school
board's "employment policy" require Section 5 approval?
Very truly yours,

JRM/1 
E n d s .