Appendix Volume I
Public Court Documents
June 6, 1977

515 pages
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Case Files, Bolden v. Mobile Hardbacks and Appendices. Appendix Volume I, 1977. 8bb86f54-cdcd-ef11-b8e8-7c1e520b5bae. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c65dfd4b-0257-4ca8-aa40-45282a0aab2f/appendix-volume-i. Accessed April 27, 2025.
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76-4210 77-2042 APPENDIX — VOLUME I United States Court of Appeals FOR THE FIFTH CIRCUIT No. 76-4210 WILEY L. BOLDEN, Et Al. Plaintiffs-Appellees, versus of CITY OF MOBILE, ALABAMA; Et Al., Defendants-Appellants. No. 77-2042 WILEY L. BOLDEN, ET AL, Plaintiffs-Appellees, versus CITY OF MOBILE, ALABAMA; ET AL, Defendants-Appellants. Appeals from the United States District Court for the Southern District of Alabama SCOFIELDS’ QUALITY PRINTERS, P. 0. BOX 53096, N. O., LA. 70153 - 504/822-1611 TABLE OF CONTENTS Docket EntrieS.csececosens sesne wren cherie nsnnns Complaint.......... Ln eR ae Defendants' Motion to DismisSS...... css srusnnne Defendants' Motion to Strike.c..cevsseeee toccens Order on Motion to Dismiss, dated November 18, 1975 ® © © © © © 0 0° 0° 0 0 ® © © © © © © 6 © © © © 6 O° 0° 0 0 0 ® © © © © © 8 0 0 Answer ® © & © © © © oo 0 0° ® © © © 0 © © © © oo oo ® © 0 © & © 0 0 ® © © © © 0 & 0° 0 Order on Class Action, filed January 19, 1976. Order Appointing Committee, filed October 6, 1976 ® © © & © © © oo © & 0 oo ® @ oo © 0° 0 ® © 0 © oo oo oo ® 6 0 oo & 0 oo ® © © 0 oo 0 0 eo eo Opinion and Order, dated October 21, 1976..... Judgment, dated October 22, 1976. ..ccvervecsense Notice of Appeal, filed November 19, 1976..... Order of Mayor-Council Plan (77-2042)ccccccces Appendix A -- A Plan for the Mayor-Council Form Of Government for the City of Mobile. Transcript of Proceedings of July 12-21, 1976 Witnesses: Testimony of Dr. Melton McLauriN.scsveseses Testimony of Dr. Cort B. Schlichting.ccce... Testimony Of Wiley L. Bolden....... ‘rsa sens Testimony of James E. BuskeV..e.... ne caves . Tastimony Of Joseph LaNOAN.cessntsssassnsns Testimony of lonia Me Gilleseecressnasncness Testimony of Jerre Koffler eves esresssonenes Testimony of R, La. HOD@: cscs vosscnsnenee ins Orig. Rec. Pages 170 184 333 543 548 604 613 622 628 Trans. Pages 15 91 200 222 288 360 373 392 App. Pages 146 160 177 199 209 232 238 246 Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony Testimony ii TABLE OF CONTENTS (Continued) James Seals...... Shel E ve Tien dd James E. VoyleS..eee.e Sete esnar Charles Cotrell........ sess Sylvester Williams..... daien ws .o Leonard Wyatt.evevvvvoves doves Sherman ‘Smith. vee ev diceds nner Dan Alexander. ® © © © 6 © © © & © © © © 0° 0° 0 oo John Randolph. .eves Py rr rT Austin PettawaY. viv. v Fe vs vs ann Mable P. DOtCh.e tc ve vcresnsnisina Janice McCamts..... Sees sesesnee Clara Bsteér..csees sSeseseesacnie Bill RobertS.cessceseove tecenecan Robert B. Doyles vvvvvevesveeve Lambert Mims... vec ee voodoo Gary Greenoughysceeeserssserces Lambert Mims (Resumed).ceeoeceee Gary Greenough (Resumed)....... James E. Voyles (Resumed)...... George Winstanley... severe veins Earl Joyner.«... Se eens enn nce sn Tom PeavVyecsessee Ee a Toe Jack Summerall..... tre siiienins ens Marion Barnett...... sas usec an JOhn A. Calametti...oeseviess ve Trans. Pages 419 441 495 547 564 583 588 612 637 651 684 705 726 752 824 926 941 1084 1128 1246 1253 1314 1338 1357 1371 App. Pages 252 260 277 294 303 311 312 3138 327 338 341 347 355 370 415 504 508 603 608 626 632 648 653 654 664 ol. Bt thera? CETL a dtu) al. piel tial Ivy aplly port td a i | pilus: s Grptlacds an eq ped The statistics.... support the hypothesis that black electoral strength has decreased since the 1960's. The observation is clear: with the exception of city commissioner Joseph Langan, no candidate who has won a majority in the black wards of Mobile has also carried a majority in the entire city since 1960. .../Before 1960, while/ the black vote was disproportionately small compared to the number of Negroes residing in Mobile their votes were often important enough to be sought. Since 1960, this has not been true: identification with the black wards is the "kiss of death" for an office-seeker in Mobile. The black voters constitute such a visible and emotional issue to Mobile's white voters that any identificat- ion with blacks in Mobile will produce a reaction by white voters and defeat the black-supported candidate. Thus, while the numberg of black® voting has increased, the relative importance of the black vote is less than before the civil rights movement of the 1960's. A. 582-85. This view of pelitieal-reality was concurred in by all politicians, hoth white and black, who testified, Suse NL (Go ceudlial goad, 4 Ww cacnts Belseco. defendant Mims. A computer expert conducted statistical regression analyses on over 35 city-wide and county-wide elections from 1962 to 1274. Pp. Exs. 10-52; Pp. Ex. 53, A. 521-092, ‘They demonstrated highly significant racially polorized voting in every race involving a black candidate or white candidate identified with black interests. The returns for all city commission winners had high correlations with race. + ) 43 -~ P. Ex, 100, P. 10, 5/ Kw Fyn Ku Bes : | 2 a 92, 119 136 T5:00. wx. 9m, p. 10; B.Ex, 99, p. 9; ii TABLE OF CONTENTS (Continued) Trans. Pages Court ICOlL1oquyYiss siiiiise caine ss sie o sleleisie ssisnsnasnne 1414 PLAINTIFFS' EXHIBITS: No. 3 -- Voter Turnout, 1972 County Commission and 1973 City Commission Elections..... PETER No. 4 -- Voter Turnout, Selected 1974 and 1976 ElectionS.cacecvvnnves Soe enonn sas sus Sassen ass ns . No. 5 -- 1973 Mobile Voter Registration for Selected WarAS. ec. ® © © 0 oO ® © © © © © © © © © © © OO © © ® oo ° 0 00 ® eo © No. 6 -- 1976 Mobile Voter Registration for Selected WaT OS 3 0% ts o0 bcs vonsnetnsootesscsennsonesn No. 7 -- Summary Mobile County Voter Registration No. 9 -- Excerpts from Voyles Thesis: "An Alaysis of Mobile Voting Patterns, 1948-70"... cccoecececee No. 53 -- Summary of Statistical AnalySeS..ecceves No. 61 -- Excerpts from File "Newspaper Ads"..... No. 62 -- Newspaper article "Numerous Cross Burnings" ® © 6 © oo oo © 0 00006 00660000 060c0e0s600ce000s00ssse No. 64 -- Summary of City CommitteeSeescesssesns “eo No. 65 -—- File of Grand Jury Report and Newspaper clippings from 1976 re: Police Brutality. covers econo eiscnss ® © ® © © © ® © 0° 0 0 ® ® oo oo © 0 oo ® © oo 0 No. 73 -- Summaries of City Employment Data (1975) No. 75 -- Summary —= City StreetS..... cess ns vosd No. 97 -- Copy of Political ad from Chickasaw News Herald, Mobile County NewS. css evseesecescascnsnss No. 98 -- Excerpts from Deposition of Robert S. Edington ® © © oo oo oo ® © © 06 6 © © 0 © ©® 0 0 oo ® © © 0 © © © 0 © © © © © °° © ® 0° 0® oo No. 99 -- Excerpts from Deposition of Gary COOPBr +: eo « te cerscevianes Seve nes tren ien ceca . No. 100 -- Excerpts from Deposition of Cain J. Kennedy ® © 6 © © © © © © 6 0° oo ® © © © © © © © 0 © © 0 © 0 0° oo 0 0 oo ® © © © © 0 0 © App. Pages 676 680 682 683 684 685 686 702 704 215 716 891 915 918 919 920 937 947 iv TABLE OF CONTENTS (Continued) No. 111 -- Sub exhibit N to Documents regarding Utilization of Revenue Sharing PFPUNAS.. cece ecevcossscasncaces DEFENDANTS 'S EXHIBIT: No. 86 —— Excerpts from book "For Christ and Country" ....«. App. Pages 965 971 DOCKET FILING DATE DEMAND JUDGE JURY DOCKET BOLDEN, WILEY L. HOPE, REV. R. IL. FOHNSON;—CHARERES O1oMSSED 114-76 LEFLORE, JANET O. LEFLORE, JOHN L. - MAXWELL, CHARLES PURIFOY, OSSIE B. v SCOTT, RAYMOND SMITH, SHERMAN TAYLOR, OLLIE LEE ) TURNER, —RODNEY—O . DISMISSED 1-14-76 / WILLIAMS, ED WILLIAMS, SYLVESTER WILSON, MRS. F.C. Pa CAUSE 42 usc §§ 1973, 1983 & 1985(3). Acting seeking single-member districts for Mobile City Commission, attacking present "at-large" election system, and for declaratory judgment and injunction against the city holding any further elections under the present at-large election system. Viens YR. NUMBER |MO. DAY YEAR J N38 {0 =n > OTHER | NUMBER | DEM. | YF. NinETH i Y, = a i w= pas == ES — Be EE ae Ee === od — ard i Sr | 5 528/1 15) ow 297 [06 os 73 J hiya | X 2804 25-29 5-2, , | E PLAINTIFFS " DEFENDANTS JT poe oe FOR TR iT 7 n, | SET FOR PRE TRIAL CoE i Ae Nb ee OER CITY OF MOBILE, ALABAMA; GREENOUGH, GARY A. DOYLE, ROBERT B., JR. MIMS, LAMBERT C., ind. and in their official capacities as Mobile City Commissioners. GREGORY B. STEIN J. U. BLACKSHER 1407 Davis Avenue Mobile, Alabama 36603 EDWARD STILL ne J WaeP Suite 601, Title Buildiig 2030 3rd Avenue, North Birmingham, Alabama 35203 ) Dy and Charles E. Williams, III Suite 2030, 10 Columbus Circle \ New York, New York 10019 ) Henry Rembert, pro se 710 Chin St. ATTORNEYS INTERVENORS : CHRIS M.ZAROCOSTAS, JOE SIRMON Dav ied & MIKE JACOBS | SLEE Jack Greenberg, James M. Nabrit,III Proposed intervenor HENRY REMBERT, EXECUTIVE SECRETARY, GULF COAST PARENT ACTION LEAGUE: BE Ne Sa f C. B. ARENDALL, JR. Post Office Box 123 Mobile, Alabama 36601 S. R. SHEPPARD . City of Mobile 2 Dept. Post Office Box 1827 Mobile, Alabama 36601 Lionel L. Layden & A. Ho p 919 Dauphin St., Mobile, Al pei a DEPOSITIONS: 36604 DR. JAMES EVERETT VOYLES, 02-03-76. DR. MELTON ALONZA McLAURIN, filed June 16, 1976. DR. CORT B. SCHLICHTING, 7-8-76 ROBERT S. EDINGTON, 7-876 GARY COOPER, T-9-T76 CAIN J. KENNEDY, 7-9-76 DR. CHARLES L. COTRELL, 7-12-76 DR. CHARLES L. COTRELL, (Continu: Mobile, Al. 36610 ation) 9-15-76. re CHC: | foie gig = FILING FEESPAID ~ ." V EL swwnnoal cans £3 HERE ETE a RECEIPT NUMBER [co NumMeiR PoE GATE MAILED | ie CASE WAS Te 10 TS # L6UT71 - Crawford, BlacKsher & Xennedy | sss _ - FORMA EE Teh fansek 2 TE REE DUR LRP ENE ST IR ll I rk Be AT 45-8 ——— PAUFERIS UN'TED STATES DISTRICT COURT DOCKET FEY time, CERTIFI A TRUE Copy VILLIAN J. 0'CONNOR, WRAP Daputy Clef a DATE 6-26-75 11-3-75 11~7~75 [L1-10-5 11-13-75 11-14-75 O 0~ 1 OV ! 10 NR. Ww n + - 18 19 28 29 Complaint filed, mpc PROCEEDINGS Summons issued with complaint for service on defendants, mpc Summons returned, executed as to LAMBERT C. MIMS as.Comm., lps Summons returned, executed as to LAMBERT C. KIMS, Ind., lps Summons returned, ‘executed as to ROBERT B., DOYLE, ‘as Comn., lps Summons returned, executed as to ROBERT R, DOYLE, Fnd., ps [Summons returned, executed as to GARY A. Gone OTGH, 23 Comm... ips Summons returned, executed as to GARY A. GREENOUGH, dl lps’ Motion for extension of time within which to respond to complaint filed by defendants; referred to Judge Hand, lps ORDER entered setting discovery cutoff date for SEPTEMBER 26, 1975 with pretrial briefs due by OCTOBER 10, 1975; copies mailed to attorneys Blacksher, Still, Arendall and Sheppard, lps Motion for extension of time within which to respond to complaint filed by defendants on June 26, 1975 is GRANTED; notice mailed to attorneys, lps Interrogatories to defendants filed by plaintiffs, 35 Motion to dismiss, with memorandum attached, filed by defendants, wet, liotion to strike, with memorandum attached, filed by defendants, wet, Answers and otjectlons of defendants to plaintiffs’ "Discovery Notice Interrogatories;" filed AJr Defendants' Interrogatories to each plalntiff tiled, Ajr Supplemental memorandum in support of motion to dismiss filed by defendants, o'b Motion to dismiss, filed ty defendants July.22, 1975 and Motion to strike, filed ty defendants July 22, 1975 submitted after arguments Ajr Status Report. AMENDMENT TO STANDARD PRE TRIAL ORDER entered and DISCOVERY extended to and including Nov. 10, 1975, and naming of witnesses on or before Nov. 25, 1975. Copy of this Amendment mailed to the Attorneys of Record on 30 Sep. 1975. (W.J.O.) Second interrogatories to defendants filed by plaintiffs, lps Motion to compel plaintiffs to answer interrogatories filed by defen- dants; referred to Magistrate on October 30, 1975, lps Answers and objections to defendants' interrogatories filed by plain- tiff ROBERT L. HOPE, lps Answers and objections to defendants' interrogatories filed by plain- tiff WILEY L. BOLDEN, lps Answers and objections to defendants' interrogatories filed by plain- tiff SHERMAN SMITH, lps Interrogatories to the plaintiffs filed by defendants, jb Motion to compel answers of plaintiffs BOLDEN, HOPE and SMITH filed by defendants, Referred to Magistrate on 1ll- 4-75, Jb (Notices mailed to attorneys), ORDER entered, by Magistrate, that plaintiff are to answer interro- gatories of defendants within 10 days from this date (Min. Entry No. 39286),1ps Copies of Min. Entry No. 39286 mailed to attorneys, lps Motion to extend discovery time an additional 30 days, filed by the plaintiffs, Ajr Discovery extended to and including DECEMBER 10, 1975, notices mailed to attorneys Ajr Second request for production of documents filed by plaintiffs, ib Motion to reconsider order on motion to compel answers to interrdgatorie filed by plaintiffs, Referred to Magistrate on 11-17-75, jb Va (SEE NEXT PAGE) Pi zis A TRUE COPY Pore ler VIL DOCKET CONTINUATION SHEET | PLAINTIFF DEFENDANT | : DOCKET NO. [9=207 =P _ | BOLDEN, WILEY L., ET AL CITY OF MOBILE, ET AL 5 PAGE _2_ OF PAGES ) Date NR. PROCEEDINGS 11-17-7p 30 | Answers and objections of plaintiff SYLVESTER WILLIAMS, to defendants interrogatories, filed, wet, ; 31 | Answers and objections of plaintiff CHARLES MAXWELL to defendants!’ interrogatories, filed, wet, 32 | Answers and objections of plaintiff EDWARD WILLIAMS to defendants’ interrogatories, filed, wet, 11-18-76 33 | Memorandum in support of motion to compel answers, filed by defendants, wet, 11-18-5| 34 | Motion to reconsider order on motion to compel answers to interro- gatories filed by plaintiffs on November 14, 1975 is GRANTED by Magistrate; plaintiff given to December 4, 1975 to answer defen- dant's interrogatories; notice mailed to attorneys, lps 11-18-75 35 | ORDER entered on defendants' motion to dismiss that insofar as the action is based on 42 USC 1985(3), complaint fails to state a cause of action & the motion to dismiss this cause as to all defendants is GRANTED. Defendants' motion to dismiss the cause of action under the Voting Rights Act of 1965, 42 USC 1973 is DENIED as to all defendants. Therefore, under 28 USC 1343(l4), this court has Jurisdiction of all defendants including the City of Mobile as to this cause of action; Since court has jurisdiction under 1343(4), it is unnecessary to discuss jurisdictional issue under 28 USC 1331. Motion of defendants as to the cause of action under 1973 & the attack of the jurisdiction as to 1343(4) is not well taken & is DENIED. Defendants! motion to strike attorneys’ fees & the injunctive relief prayed for in paragraph V-2 is DENIED; M/E No. 39,371; Attorneys Blacksher & Bagwell advised of ruling by phone on 11-20-75; and on 11-20-75; copy of order mailed attorneys Blacksher, Still, Bagwell and Sheppard, wet, 11-21-79 36 |Motion-to allow further discovery of facts and opinions held by | expert, Dr. James E. Voyles, filed by plaintiffs. mpc 37 |Notice of taking of deposition of DR. JAMES E. VOYLES filed by plaintiffs, mpc : 11-25-7% 38 | Answers to Pla intiffs' second Interrogatories to Defenknts filed, je : : 11-28-75 us Report. ANSWER to be filed by next Friday. Set for Pre Trial in first week of Feb. 1976 (W.J.0.) — 11-28-79 39 | ORDER on plaintiffs! motion to allow further discovery of expert, DR. JAMES E., VOYLES that discovery mfrequested by plaintiffs to Dr. Voyles' dissertation is GRANTED provided the plaintiffs pay expenses pursuant to FRCP, Rule 26(b) (1) (CY. Motion as to further discovery is DENIED; M/E No. 39,470; copy mailed attorneys on 12-2-75, wet, : 12-3-75| 40 | ANSWER. filed by defendants, wet, | L2-4-75 41 | Answers and objections of plaintiff, RAYMOND SCOTT, to defendants! interrogatories, filed, wet, 42 | Answers and objections of plaintiff JOHN L. LeFLORE, to defendants! interrogatories, filed, wet, 43 | Answers and otjections of plaintiff, OSSIE BENJAMIN PURIFOY, to defendants' interrogatories, filed, wet, 44 | Answers and objections of plaintiff, JANET LeFLORE, to defendants! interrogatories, jb DC-111A (Rev. 1/75) CERYIFiZH A TRUE copy WAN WE Beputy Clap CIVIL DOCKET CONTINUATION SHEET PLAINTIFF DEFENDANT DOCKET NO. PAGE oD OF Lo PAGES PROCEEDINGS | interrogatories, filed, wet, : | Answers SAGEObISct ona 8 BL IA ty SLE weve) dofandantal interrogatori 8S filed, wet, 12-8-75 12-11-75 12-8-75 12-12-T7H LY / 12-15-76 2-15-75 12-17-75 12-31-74 1-7-76 1--8-76 1--8-76 1--8-76 1--8-76 1-14-76 1-19-76 1-20-76 TUTTO Tro Co a a a Answers and ob ections of laintiff, FRANCIS GARY WILSON, to defendants' interrogatories filed) Jb Answers to defendants! second inter ogatories filed by plaintiffs, 3b Plaintiffs' third discovery notice {interroz! sreries and request for" | production of documents) filed, gre... Answers and objections to plaintiffs! second request. for production of documents filed by dsfendonts, Joi= 01-13-76 60 interrogatories, filed, wet, 39,542; wet, interrogatories filed, o'b interrogatories filed, o'b interrogatories filed, o'b 59 piston to dismiss certain plaintiffs, RODNEY O. TURNER & CHARLES JOHNSON, without © Pitoman) e Pittman Referred to Jud order fo Preliminary pretria 60-A 61 62 filed 1-8- 1 Order entere Magistrate on 1-21-76, jb Copy of M/E No. 39,542 mailed attorneys, wet, Motion for certification of class filed by plaintiffs; referred to Magistrate; notice mailed apromens wet, Appearance of Counsel for plainti fs fied by Jack Greenberg, James M. Nabrit, III and Charles E. Williams, III, Ajr Motion to extend time in which to answer certain interrogatories filed by plaintiffs, Referred to Magistrate on 1-7-7 Motion to extend time for plaintiffs to answer interrogatories GRANTED to January 8, 1976, Notices mailed to attorneys, Jb Answer to plaintiffs! third discovery notice filed by defendants, jb Supplemental Answers of plaintiff, Wiley L. Bolden, to defendants’ Supplemental Answers of plaintiff, Sherman Smith, to defendants! Supplemental Answers of plaintiff, John L. LeFlore, to defendants’ entered by Judge Pittman filed, coples of order mailed to attor- neys on 01-07-76 by Mrs. Madge Andress, grs. Mo tion to dismiss plaintiffs RODNEY O. TURNER & CHARLES JOHNSON 6 is GRANTED, Notices mailed to attorneys, J that plaintiffs may maintain this action as a class action, Minute Entry No. 39,816; copies mailed to attorneys Motion to compel compliance filed by defendants, Referred to (SEE CONTINUATION SHEET) Answers and objections of plaintiff, ST LEE ‘TAYLOR, to defendants! ORDER entered on defendants' motion compelling plaintiffs, WILEY L. BOLDEN, REVEREND R. L. HOPE and SHERMAN SMITH, to answer certain interrogatories that said plaintiffs are ORDERED that they answer interrogatories as set out in order; plaintiffs are further ORDERED to file written answers within 20 days of this order; Defendants’ motion is DENIED as to those numbered interrogatories as more fully | set out in order and plaintiffs! objections are sustained; M/E No. 65, Jb filed by other plaintiffs, o'b o'b pretrial set 4th day of February, 197¢ b Ajr CERTIFLS A TRUE copy hid opis vg ay Deputy Clep IVIL DOCKET CONTINUATION SHEET i | PLAINTIFF DEFENDANT | | pocket no. 19-297 H | | WILEY L. BOLDEN, ET AL CITY OF MOBILE, ALABAMA ; PAGE Y~ OF _____ PAGES t J DATE NR. PROCEEDINGS 1-20-76| 63 | Supplemental answers to defendants' interrogatories filed by plaintiff, jb 64 | Supplemental answers to defendants’ interrogatories filed by plaintiff, jb 1-21-76| 65 | Motion to compel defendants to answer interrogatories and produce documents filed by plaintiffs, Referred to Magistrate, jb 1-26-76| 66 | Motion to dismiss certain plaintiffs without prejudice filed by plaintiffs, jb 67 | Supplemental answers to defendants' interrogatories filed by defendant PURIFOY, jb 68 | Supplemental answers to defendants' interrogatories filed by : defendant TAYLOR, Jb ges 69 | Supplemental answers to defendants' interrogatories filed by defendant LeFLORE, Jb : 1-28-76| 70 | Supplemental answer to Plaintiffs' Third Discovery Notice filed defendants, (Je) 1-29-76| 71 | Supplemental answers of plaintiff to defendants' interrogatories : + |' filed by plaintiff MAXWELL, jb 72 Supplemental answers of plaintiff to defendants' interrogatories 2-03-76 Deposition’ ob BoRTSRT ARES: sBrETT VOYLES filed, grs. 2-3-76 73 {Joint Pretrial Document filed by parties, wet, 2--4-76 CASE PRE TRIED ON 4 FEB. 1976 BY JUDGE VIRGIL PITTMAN. (W.J.O.) D2-05-74 T4 |ORDER entered on pertrial hearing, copies mailed to attorneys by Mrs. Madge Andress, grs. : 2-17-76] 75 |Amended Motion to compel defendants to answer interrogatories and produce documents filed by plaintiffs, Referred to Magistrate on 2-19-7 b 2-19-76] T6 Poors lth plaintiffs! "Amended Motion to compel defendants to answer interrogatories and produce documents” filed by defendants, ] co’ 2-25-76| TT | Specification of racially discriminatory acts filed by plaintiffs, wédt. 3-8-76 | 78 | Amendment to response to "Discovery Notice 1", filed by defendants,wét. | 3-10-76| 79 | Motion filed by plaintiffs on 2-17-76 is MOOT, Notices mailed to attorneys, jb 3-12-76 Status Report, no problems, Judge Pittman to set date for trial, wet, 13-12-76 Motion to dismiss certain plaintiffs without prejudice, filed by plaintiffs Jan. 26, 1976 submitted without argument, Ajr OL-02-76 80|Notice of taking the deposition of DR. JAMES E. VOYLES filed by I the plaintiff, ars. O4-07-7% 81| ORDER entered DISHMISSING plaintiffs RAYMOND SCOTT and ED WILLIAM without prejudice. See Min. Entry No. 40,441, copy railed to attorneys Stein, Blacksher, Still, Greenberg, Nabrit, Wiliiams, Bagwell, Arendall and Sheppard on OL-08-76, grs. L-2c-74 82 |Subjects of defense evidence as tc responsiveness filed bi: de’endant.f: 5-11-74 83 |Notice of taking deposition of TONY PARKER filed by defendants, © 5-17-74 8) [Notice of taking deposition of DR. ‘CHARLES COTRELL filed tv ; defendants, jb ; : : ; 5-00-74 85 |Notice of taking the deposition of DR. CHARLES COTRELI, Tiled by tre defendants, rs. 6-16-76 Deposition of DR. MELTON ALONZA McLAURIN filed. mpc DC-111A (Rev. 1/75) CERTIFIE A TRUE copy VILL: + 0,COMNOR, erg : = By — a MW les 1 70, Deputy Clerk Ly CIVIL DOCKET CONTINUATION SHEET PLAINTIFF DEFENDANT DOCKET NO. PAGES OF PAGES PROCEEDINGS 7-19-76 7-21-76 D9-09-74 9-17-76 9-15-76 10-4-74 10-13-76 1 0-6-75 0-14-76 7-20-76 93 o4 95 96 97 101 Submission of qualifications of experts filed by defendant, wi attachments, grs. Jitness list Tiled by plaintiffs, jb Notice of taking deposition of CAIN J. KENNEDY filed by plaintiffs, jo Notice of taking deposition of ROBERT EDINGTON filed by plaintiffs, ib Deposition of DR. CORT B. SCHLICHTING filed, mpc Deposition of ROBERT S. EDINGTON filed, mp Deposition of GARY COOPER filed, mpc Deposition of CAIN J. KENNEDY filed, mpc : > Plaintiffs, hr3ng forse Ses SO, Ie, A EC CLT WE OBES Shed completed at 5:10 P.M., Court recessed to 7-13-76 at 9:00 A.M., M/E No. 41,266-A; copy mailed attorneys on 7-15-76, wet, Trial resumed, witnesses examined, exhibits offered & Court recessed at 4:50 P.M, to 7-14-76 at 9:00 A,M.,, M/E No. U41,2685A; copy mailed attorneys on 7-15-76, wet, Trial resumed, witnesses examined, exhibited offered & Court recessed at 4:55 P.M. to Monday, July 19, 1976, at 9:00 A.M., M.E. No. 41,289-A. Copy of M.E. 41,289-A mailed to Attorneys of Record on July: 21, 1976. (W.J.0.) SE Trial resumed, witnesses examined, exhibits offered & Court recessed at 5:00 P.M. to Tuesday, July 20, 1976, at 9:00 A.M., M.E. No. -A. LE. 41,303-A mailed to Attorneys of Record on 1130378 19588Y (§F HMgBy 1.303 y Trial resumed, witnesses examined, exhibits offered & Court recessed at 4:45 p.m. to Wednesday, July 21, 1976, at 9:00 a.m., M. E. No. 41,318-A. Copy of M. E. No. 41,318-a mailed to attorneys of record on July 23, 1976. Jjrb. Trial resumed, witnesses examined, exhibits offered & defendants rest at 5:02 p.m. The Court ordered that the trial be recessed to be set down for arguments at a later date. M. E. No. 41,323-B. Copy of M. E. No. 41,323-B mailed to attorneys of record on July 23, 1976. jib. Plaintiffs' submission of plans filed, grs. TRIAL RESUMED for post-trial arguments, arguments heard, and trial RECESSED to a later date for ar ents on the Plans submitted by the parties, (Minute Entry No. 41737-B). mpc Copies of Minute Entry No. 431737-B mailed to all attorneys of record mpc Continuation of Deposition of DR. CHARLES L. COTRELL filed, mpc Plaintiffs' interrogatories regarding attorneys' fees filed by plaintiff, Jjrdb. Answer and Objection filed by all defendants, (je) ORDER entered appointing JOSEPH N. LANGAN, ARTHUR R. OUTLAW and JAMES E. BUSKEY as committee to formulate plan for mayor-council form of government & committee is given target date to report to the court of 12-1-76; M/E No. 41,943-D; copy mailed attorneys on 10-15-76, wet, Ssh of population estimates for Plan F, filed by plaintiffs, wi wet, CERTIFio A TRUE COPY VILLA, § con, g | J lL Zs Deputy Cle CIVIL DOCKET CONTINUATION SHEET PLAINTIFF BOLDEN, WILEY L., ET AL DEFENDANT CITY OF MOBILE, ET AL PAGE as OF aries PAGES 5_2G7-P DOCKET No. (2-237 DATE NR. PROCEEDINGS 0-21-76 10-22-75 .0-28-76 1-3-76 1-17-76 11-19-76 11-18-76 1-19-76 102 104 105 108| Notice of Appeal filed by defendants, wet, 109| Security for costs on appeal filed by defendants, wet, 110 111 103| JUDGMENT entered as set out in above opinion of 10/21/76; M/E No. Opinion and order with Findings of Fact and Conclusions of Law entered that there shall be elected in the August, 1977 municipal election, a mayor elected at-large and nine council members elected from nine single-member districts. Plaintiffs' claims for attorneys' fees & costs will be determined after a hearing on these issues, It is court's judgment that this decree this date is a final judgment & decree from whiwh an appeal may be taken. However, in event it is not a final decree, court ex mero motu pursuant to 28 USC 1292(V) finds that a controlling guesticn of law is involved. Court retains Jurisdiction of this action to secure compliance with its decree issued contemporaneously herewith & for such other & further relief as may be equitable & just; M/E No. 42,074; copy given this date to attorneys J. U. Blacksher and David Bagwell. On 10-22-76 copy mailed attorneys Edward Still and S, R., Sheppard, wet, 42,080; copy mailed attorneys, wet, Amendment to correct opinion & order dated 10/21/76 as more fully described in amendment; M/R No. 42,123; copy mailed attorneys on 11-1-76, wet, PLANTIFFS' PLAN H filed, being a plan for nine districts in the City of Mobile and a ward breakdown showing the number of black citi- zens residing in each ward according to the 1970 census. (Map attached as Exhibit A, placed in red folder.) mpc Mmtion to reconsider order of October 21, 1976 filed by defendants (intervenors) Ajr Motion to intervene as defendants under Rule 24, filed by intervenors Chris M. Zarocostas, Joe Sirmon and Mike Jacobs AJjr Copy of Notice of Appeal and certified copy of docket entries to Clerk, 5th CCA, wet, Copy of Notice of Appeal mailed attorneys for appellees (plaintiffs), wet, ? AMENDMENT to the.opinion and order of 10/21/76 entered as more fully set "out in amendment; M/E No. 42,272-B; copy mailed attorneys on 11/19/76, wet, AMENDMENT to the judgment entered 10/21/76 entered as more fully set out in amendment; M/E No. 42,272-A; copy mailed attorneys on 11/19/76, wet, Motion to reconsider order ff 10/21/76 filed by defendants-intervend is argued and TAKEN UNDER SUBMISSION, wet, Motion to intervene as defendants under Rule 24 filed by intervenors CHRIS M. ZAROCOSTAS, JOE SIRMON and MIKE JACOBS is argued and TAKEN UNDER SUBMISSION, wet, CC-111A REV. (1/75) Ly» CIVIL DOCKET CONTINUATION SHEET FOL Wied '% TE STW 2E “PLAINTIFF BOLDEN, WILEY L., ET AL CITY OF MOBILE, ET AL DEFENDANT DOCKET No. 19-287-P PAGE «OF. ... PAGES DATE NR. PROCEEDINGS 2-2-T7T7 126 29-15-77. 157 3..17~T7 2-28-71 Sunn? 3-4-77 3-9-77 p28 3-18-77 129 130 3-23-77[131 3-23-77 L.7-77 | 132 ORDER entered that motion to intervene filed by HENRY REMBERT, EXECUTIVE SECRETARY OF THE GULF COAST PARENT ACTION LEAGUE on 1-4-77 & amended on 1-17-77 is DENIED; M/E No. 42,840-D; on 2-4-77, copy mailed attorneys and Henry Rembert, wet, Stipulation for temporary retention of record filed by parties, wet, Certified copy of docket entries mailed to Clerk, 5th CCA and to attorneys, wet, Depositions of GROVER CLEVELAND THORNTON, III, ROBERT S. VANCE, JAMES A. HARRIS, JR. & EDWARD MALCOLM FRIEND, 17, gre On 2 Mar, 1977 received from the U.S. Court of ’Appedls, Fifth Cir- cuit, an ORDER reading as follows: "ORDER: IT IS ORDERED that appellants’ motion to enlarge the time for the filing of the record on appeal including the court reporter's transcript to and including March 4, 1977, is GRANTED." (W.J.0.) Court Reporter's transcript of trial proceedings filed, 1,503 pages, wet, ORDER entered adopting JAEyorS council plan (Appendix A) and pla tiffs! plan for ning single-member council districts(iAppend and directing thaty€he regularly scheduled city electicns in August, 1977, and each four years thereafter, the City of Mobile shall elect nine members to a city council and eg meycr, One member of the City Council shall be elected by and from each district. The mayor is to be elected at-large. The Court reserved a decision upon the plaintiffs! claim for attorneys’ fees and out-of-picket expenses. (Minute Entry No. L3081). role Copies of Minute Entry No. 43081 mailed to all attorneys of record, NOTTOE OF “REPEAL from the order of March 9, 1977, the opinion and order entered on October 21, 1976 and the judgment entered on October 22, 1976 filed by defendants, lps Application for stay pending appeal, with brief attached, filed by defendants; referred to Judge Pittman, lps Plaintiffs' opposition to defendants' application for stay pending appeal filed, wet, Application for stay pending appeal filed by defendants on 2/18/77 and plaintiffs' opposition to defendants' application for stay Ej) pending appeal filed 3/23/77 are argued & TAKEN UNDER SUBMISSION, w ORDER entered STAYING the court's prior orders requiring z meyor- council election in August, 1977; directing that preczrations for elections under the city commission form of gcvernment shall be held as regularly scheduled in August, 1977, 211 pend- ing result of appeal to Fifth Circuit, (Minute Entry Ko. 43285) Copy of order delivered to J. U. Blacksher on 4- 7771 *o 0, EB. Arendall, Jr. on 4-B-77; copies mailed to attorneys Still, Greenberg, etc. and Sheppard on 4-11-77. mpc Si A TRUE a PRIME gw os N S- Deputy Clerk ee v a r a CIVIL DOCKET CONTINUATION SHEET FPI-MI—3.14.75.30M-3511 PLAINTIFF DEFENDANT DOCKET NO. PAGE _ _OF PAGES | Br pt PROCEEDINGS y1else 771133 | Notice of Appeal of order of 4-7-77 filed by PLAIDECEES. wet, Security for costs on appeal filed by plaintiffs; wet, 4-26-77 134 135 Stipulation for temporary retention of record filed by parties; wet, DC-111A REV. (1/75) CERTIFIED A 18 iy Fao Clerk al [1] 10 IN THE UNITED STATES DISTICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION WILEY L. BOLDEN, REV. R.L. HOPE, CHARLES JOHNSON, JANET O. LEFLORE, JOHN L. LEFLORE, CHARLES MAXWELL, OSSIE B. PURIFOY, RAYMOND SCOTT, SHERMAN SMITH, OLLIE LEE TAYLOR, RODNEY O. TURNER, REV. ED WILLIAMS, SYLVESTER WILLIAMS AND MRS. F. C. WILSON , Plaintiffs; vs. CIVIL ACTION NO. 75-297 H CITY OF MOBILE, ALABAMA: GARY A. GREENOUGH, ROBERT B. DOYLE, JR., AND LAMBERT C. MIMS, individually and in their official capacities as Mobile City Commissioners, u. s. DISTRICT COURT N a No No No No No No No o F N F N F N F N F N N N S N N N S N S Defendants. SOU. DIST. ALA. FILED IN CLERK'S OFFICE JUN 9 COMPLAINT 1975 WILLIAM J, O'CONNOR Jurisdiction Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 133 and 1343. The amount in controversy exceeds $10,000.00 exclusive of interest and costs. This is a suit in equity arising out of the Constitution of the United States, the First, Thirteenth, Fourteenth, and Fifteenth Amendments, and 42.U.S.C. Sec. 1973, 1983 and 1985 £3), 11. Class Action Plaintiffs bring this action on their own behalf and on behalf of all other persons similarly situated pursuant to Rule 23 (a) and 23 (b) (2), Federal Rules of Civil Procedure. The class which plain- tiffs represent is composed of black citizens of the City of Mobile, Alabama. All such persons have been, are being, and will be adverse- ly affected by the defendants' practices complained of herein. There are common questions of law and fact affecting the rights of the members of this class, who are, and continue to be, deprived of the equal protection of the laws because of the election system detailed below. These persons are so numerous that joinder of all members 1 11 [2] is impracticable. There are questions of law and fact common to | plaintiffs and the class they represent. The interests of said class are fairly and adequately represented by the named plain- | tiffs. The defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the class as a whole. III. Parties | A. Plaintiffs Wiley L. Bolden, Rev. R. L. Hope, Charles Johnson, Janet 0. LeFlore, John L. LeFlore, Charles Maxwell, ] Ossie B. Purifoy, Raymond Scott, Sherman Smith, Ollie Lee Taylor, Rodney O. Turner, Rev. Ed Williams, Sylvester Williams and Mrs. F. C. Wilson are black citizens of the City of Mobile, Alabama, over the age of 21 years. B. Defendants, Gary A. Greenough , Robert B. Doyle, Jr., and Lambert C. Mims are each over the age of 21 years and are bona fide citizens of Mobile, Alabama. The defendants are the duly elected City Commissioners of Mobile. 1V. Nature of Claim A. The Mobile City Commission is the governing body of the City of Mobile, holding the legislative power granted to cities. In addition, its members perform certain administrative | ad executive functions. B. The Mobile City Commission is organized under Act 163, Reg. Sess. 1911, as amended. GC The three (3) commissioners on the City Commission are elected at large to numbered places. D. The City of Mobile has a total population of 190,026, of whom 35.47% or 67,356 are black. Certain areas of Mobile are almost totally devoid of blacks, while others are virtually all black. Segregated housing patterns have resulted in concentra- tions of black voting power. (3) ot, 24 “ [3] 12 E. The present system of electing city commissioners dis- criminates against black residents of Mobile in that their con- centrated voting strength is diluted and canceled out by the white majority in the city as a whole. V. Plaintiffs and the class theyrepresent have no plain, adequate or complete remedy at law to redress the wrongs alleged herein, and this suit for a permanent injunction is their only means of securing adequate relief. Plaintiffs and the class they represent are now suffering and will continue to suffer irreparable described injury from the unconstitutional election system /herein. WHEREFORE, plaintiffs respectfully pray this Court to advance this case on the docket, order a speedy hearing at the earliest practicable date, cause his/o os in every way expedited and upon such hearing to: 1. Grant plaintiffs and the class they represent a declaratory judgment that the election system com- plained of herein violates the First, Thirteenth, Fourteenth, and Fifteenth Amendments to the Consti- tution of the United States and 42 U.S.C. Secs. 1973, 1983 and 1985(3). { 25 Grant plaintiffs and the class they represent an order enjoining the defendants, their agents, succes- sors, attorneys and those acting in concert with them certifying the results of any election for the Mobile City Commission under the present at-large election ; system and from failing to adopt a plan of city govesn- ment using single-member districts. 3 Award plaintiffs and the class they represent their costs in this action, including an award of reasonable attorneys' fees. 13 [4] 4. Grant such other and further equitable relief as the Court may deem just and proper. CRAWFORD, BLACKSHER & KENNEDY ' 1407 DAVIS AVENUE MOBILE, ALABAMA 36603 By: 1U, B R | EDWARD STILL, ESQ. 321 Frank Nelson Building Birmingham, Alabama 35203 Attorneys for Plaintiffs [19] 1 4 i we IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION WILEY L. BOLDEN, REV. R.L. HOPE, : CIVIL ACTION NO: 75-297-H CHARLES JOHNSON, JANET O. LEFLORE, JOHN L. LEFLORE, CHARLES MAXWELL, OSSIE B. PURIFOY, RAYMOND SCOTT, SHERMAN SMITH, OLLIE LEE TAYLOR, RODNEY O. TURNER, REV. ED WILLIAMS, SYLVESTER WILLIAMS AND MRS. F.C. WILSON, . U: S. DISTRICT COURT Plaintiffs ' SOU. DIST. ALA. ; FILED IN CLERK'S OFFICE VS: JUL 221975 CITY OF MOBILE, ALABAMA, GARY A. GREENOUGH, ROBERT B. DOYLE, JR., : AND LAMBERT MIMS, individually WILLIAM J. O'CONNOR and in their official capacities : CLERK as Mobile City Commissioners, Defendants. MOTION TO DISMISS Comes now each defendant in the above-styled cause, jointly and severally, and moves the court to dismiss this cause upon the following grounds: 1. The complaint fails to state a claim upon which re- lief can be granted. v2. Insofar as this action is against the City of Mobile and is based upon 42 U.S.C. §1983, the complaint fails to state a claim upon which relief can be granted. d3. Insofar as this action is based upon 42 U.S.C. §1985 (3), the complaint fails to state a claim upon which relief can be granted. 4. Insofar as this action is based upon 42 U.S.C. §1973, the complaint fails to state a claim upon which relief can be granted since the complaint affirmatively shows that no plaintiff is among those empowered to bring enforcement actions under any ( 5 After Argument. S Se fITTED { > olin 4 ) On Briefs. ole; dR By Direction Lhe Court. as a : Witliam J. 0’Connor, Gok 15 (13 15 [20] provision of the Voting Rights Act of 1965 other than Section 5 thereof. : ¥5. Insofar as this action is jurisdictionally based upon 28 U.S.C. §1331, there is want of subject matter jurisdiction in this Court since it appears to a legal certainty that the claim of each class member is in reality for less than the requisite jurisdictional amount in controversy. 6. Insofar as this action is against the City of Mobile and is based upon a remedy inferred from the Constitution, cog- nizable under 28 U.S.C. §1331, the complaint fails to state a claim upon which relief gan Be granted. 7. Insofar as this action is brought under 42 U.S.C. §1973, the complaint fails to state a claim upon which relief can be granted, since that statute creates no new right the violation of which is actionable, but instead only a new remedy to implement previously held rights. J Charles renda 30th Floor - First fiational Bank Building Mobile, Alabama 36602 Attorney for Defendants OF COUNSEL: HAND, ARENDALL, BEDSOLE, GREAVES & JOHNSTON SK. Sheppatd Com Attorney for Defendants OF COUNSEL: LEGAL DEPARTMENT OF THE CITY OF MOBILE CERTIFICATE OF SERVICE I do hereby certify that I have on this 2 day of 19___, served a copy of the foregoing pleading on counsel for all parties to the proceeding, by mailing the same by United States mail properly addressed, and first class postage prepaid. 9 Charles B, Arendall, i By Uirection of theé/Court. PTTL] a —— William J. 0'Connorv/Clerk le IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION WILEY L. BOLDEN, REV. R.L. HOPE, CHARLES JOHNSON, JANET O. LEFLORE, JOHN L. LEFLORE, CHARLES MAXWELL, OSSIE B. PURIFOY, RAYMOND SCOTT, SHERMAN SMITH, OLLIE LEE TAYLOR, RODNEY O. TURNER, REV. ED WIL- LIAMS, SYLVESTER WILLIAMS AND MRS. F.C. WILSON, Plaintiffs, vs. CITY OF MOBILE, ALABAMA, GARY A. GREENOUGH, ROBERT B. DOYLE, JR., AND LAMBERT MIMS, individually and in their official capacities as Mobile City Commissioners, . Defendants. MOTION TO CIVIL ACTION NO: 75-297-H Us S. DISTRICT COURT Sou. DIST. ALA. FILED IN CLERK'S OFFICE JuL 22975 'CONNOR WILLIAM J. O'CO CLERK STRIKE Comes now each defendant in the above-styled cause, jointly and severally, and moves the Court to strike from Plaintiffs' complaint the following prayers for relief: 1. The injunctive relief prayed for in Paragraph V-2 of the complaint, in which Plaintiffs seek to enjoin de- fendants "from failing to adopt a plan of city government using single-member districts. 2. The demand for "an award of reasonable attorneys’ fees", contained in Paragraph V-3 of the complaint. «) After Broument, ( SUBMITTED ) Withort Seeument, ) On Giigls, Date: hci a #2 7 LL] C bd 21 17 Lis 2 Ltt, Charles B. Arendall, Jr. 30th Floor =- First — Bank Building Mobile, Alabama 36602 Attorney for Defendants OF COUNSEL: HAND, ARENDALL, BEDSOLE, GREAVES & JOHNSTON SHA Shots £ S.R. Sheppard Attorney for nin OF COUNSEL: LEGAL DEPARTMENT OF THE CITY OF MOBILE CERTIFICATE OF SERVICE I do hereby certify that I have on this Wo Ra day os , 1975, served a copy of the foregoing pleading on counsel for all parties to this proceeding by mailing a copy of the same by United States mail, properly addressed and first class postage prepaid. Chibi Lovet] Charles B. Arendall, = 22 22] [170] A 18 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION WILEY L. BOLDEN, et al., Plaintiffs, Y. CIVIL ACTION CITY OF MOBILE, ALABAMA, et al., No. 75-297-P N a or ud N u Na N u a a au Defendants. ORDER ON MOTION TO DISMISS The plaintiffs, black citizens of the City of Mobile, seek to bring this action as a class action on behalf of themselves and on behalf of all other black persons similarly situated, pursuant to Rule 23(a) and Rule 23(b)(2), Federal Rules of Civil Procedure. It is alleged that they, and all other such persons, have been, are being, and will be adversely affected by the defendants' practices complained of, to wit, they are and continue to be deprived of equal protection of the laws because of the election at large system of the City Commissioners to numbered places. It is claimed this discriminates against black residents of Mobile in that their concentrated voting strength is "diluted and cancelled out by the white majority." The plaintiffs seek the following relief: (1) a declaratory judgment that the election system violates the First, Thirteenth, Fourteenth, and Fifteenth Amend- ments to the Constitution of the United States and 35 176 ~ ~ 19 {171] 42 U.S.C. §8§1973, 1983, and 1985(3); (2) issue an order enjoining the defendants, their agents, etc. from holding, supervising, or certifying the results of any election for the Mobile City Commission under the present at-large election system, and from failing to adopt a plan of City government using single member districts; (3) award the plaintiffs costs and a reason- able attorney's fee; (4) grant such other and further equitable relief as the court may deem just and proper. Jurisdiction is invoked pursuant to 28 U.S.C. §81331 and 1343. The motion to dismiss the City of Mobile as a party defendant answerable under Section 1983 is well taken and should be granted. It is clear that a muni- cipal corporation is not a 'person” within the meaning of 42 U.S.C. §1983, City of Kenosha v. Bruno, 412 U.S. 507 (1973), 37 L.Ed.2d 109, 93 S. Ct. 2222; Monroe v. \ Pape, 365 U.S. 167 (1961), 5 L.Ed2d 492, 81 S. Ct. 473. The motion to dismiss the City of Mobile under §1985(3) is due to be granted. The City of Mobile is not a "person” within the meaning of that section. Bosely v. City of Euclid, 496 F.2d 193 (6th Cir. 1974); Mack v. Lewis, 298 F. Supp. 1351 (D.C. Ga. 1969). Furthermore, a claim against any defendant is not stated pursuant to that section. In Westberry v. Gilman Paper Co., 507 F.2d 206, ~ ‘214 (1975), the Fifth Circuit summarized a 1985(3) \ cause of action as follows: | 2s 17} [172) 20 "This requires that the complaint show that there was a conspiracy; that such a conspiracy be for the purpose of depriving an individual of the equal protection of the laws; that the co-conspirators acted in furtherance of their con- spiracy, and that the plaintiff was injured in his person or prop- f erty or actually deprived of a citizen's right or privilege. Second, as the Supreme Court noted in Griffin: [T]he language of [of 1985(3)] requiring intent to deprive of equal protection or equal privileges, and immunities means that there must be some racial or perhaps otherwise class based invidiously discriminatory animus behind the conspirators’ ”" action. '= 1/ See Griffin v. Breckenridge, 403 U.S. 88. Plaintiffs have not set out sufficient allegations of a conspiracy to meet this test. They only allege that the election system discriminates against them. [Com- plaint IV-E] Therefore, insofar as the action is based on 42 U.S.C. §1985(3), the complaint fails to state a cause of action and the motion to dismiss this cause of action as to all defendants in the complaint is well taken and is GRANTED. The defendants' motion to dismiss the cause of action under the Voting Rights Act of 1965, 42 U.S.C. §1973 is not well taken and the motion is DENIED as to all defendants. 2/ 2/ See the amendment to the Act approved August 6, 1975: | "Section 401. Section 3 of the Voting Rights Act of 1965 is amended by striking out 'Attorney General' the ; first three times it appears and inserting in lieu thereof the following 'Attorney General or an aggrieved person.’ U. S. Code Congressional and Administrative News, P.L. 94-73, 89 Stat. 404. 5 172 21 [173] Therefore, under 28 U.S.C. §1343(4), this court has jurisdiction of all defendants including the City of Mobile as to this cause of action. Since this court has jurisdiction under §1343(4), it is unnecessary to discuss the jurisdictional issue under 28 U.S.C... $1331. 3/ Therefore, motion of defendants 3/ The complaint alleges an amount in controversy of $10,000 or more, but briefs claim the jurisdic- tional amount is based on a $10,000 loss to defendants rather than to the plaintiffs. For a good discussion of the right to proceed under §1331 with less than the $10,000 jurisdictional amount, see Cortright v. Resor, 325 FP. Supp. 797 (D.C. N.Y. 19717 at p.. 503. The case was reversed for other reasons. as to the cause of action under §1973 and the attack of the jurisdiction as to §1343(4) is not well taken and is hereby DENIED. The defendants' motion to strike attorneys' fees and the injunctive relief prayed for in paragraph V-2 is DENIED. 2 4/ See the amendment to the Act approved August 6, 1975. "Section 402. Section 14 of the Voting Rights Act of 1965 is amended by adding at the end thereof the following new subsection: (e) In any action or pro- ceeding to enforce the guarantees of the fourteenth of fifteenth amendment, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of these costs. Supra, footnote 2. Done, this the s lol day of November, 1975. U. 8! DISTRICT COUKY SOU. DIST. ALA. 3Y Cece FILED AND ENTERED THIS THL UNIPTED STATES DISTRICT JUDGE 187° DAY OF NOVEMBER __ 1975, LLNUTS ENTRY NO. . 3937 dm WILLIAIT J. O'CONNOR, CLERK oy Sr react th a : 7 DROUTY CLERK 173 [184] 22 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA WILEY L. BOLDEN, at. al., Plaintiffs, vs. CITY OF MOBILE, et. al., Defendants. SOUTHERN DIVISION ANSWER CIVIL ACTION NO: 15-297-P Us S: DISTRICT COURT SOU. DIST. ALA. FILED IN CLERK'S OFFICE pEC3 WM ‘CONNOR WILLIAM J. OCONEE Come now the defendants, the City of Mobile, Alabama, and Gary A. Greenough, Robert B. Doyle, Jr., and Lambert C. Mims, individually and in their official capacities as Mobile City Commissioners, and, in answer to the named { plaintiffs' complaint, say: I. Jurisdiction FIRST DEFENSE Defendants admit that this Court has subject matter jurisdiction of this cause insofar as it is a claim against the said commissioners under 42 U.S.C. §1983, jurisdic- tionally premised upon 28 U.S.C. §1343. In all other re- spects the allegations of Section I of the complaint are ¥0 3 23 [185] «De denied. II. Class Action 1. Defendants admit that the named plaintiffs pur- port to represent a class composed of all black citizens of the City of Mobile, but deny that this action may properly be maintained as a class action on behalf of such persons. 2. Defendants deny that blacks as such are adversely affected by any practices of defendants. 3. Defendants deny that blacks are, or continue to be, deprived of the equal protection of the law in the City of Mobile. 4. Defendants admit that the joinder of all members of the purported class would be impracticable. 5. Defendants deny that the named plaintiffs may properly represent all black citizens of the City of Mobile. Defendants say, on the contrary, that the poli- tical ideas of the named plaintiffs with respect to the issue in this case are not shared by all blacks in the community; that there is disparity among black citi- zens, as there is among white citizens, with respect to the form of city government which is desired. 6. Defendants deny that they have acted or refused to act on grounds generally applicable to the purported class. 7. Defendants deny that injunctive or declaratory relief with respect to the purported class is proper. 185 [186] 24 Be 8. Except as herein expressly admitted, defendants deny all allegations of Section II of the complaint. III. Parties. Defendants admit the allegations of Section III of the complaint. IV. Nature of Claim 1. Defendants admit that the Mobile City Commission is the governing body of the City of Mobile by virtue of, but only to the extent allowed by, statutes enacted from — A a — time to time by the Legislature of the State of Alabama. Pursuant to such statutes, the commission performs certain executive and administrative functions and holds limited legislative powers. Plenary legislative authority over the Fe ————" affairs of the city is vested in the Legislature of the State of Alabama. The three city commissioners are elected at large to numbered places, each of which has different legally specified functions. Certain sections of the city are predominantly white and others are predominantly black, but such sections are scattered over the city and there is no geographical area of substantial size in which both whites and blacks do not reside. 2. Except as herein expressly admitted, defendants deny all allegations of Section IV of the complaint. V. Relief Defendants deny the allegations of Section V of the 186 25 [187] complaint and deny that the relief sought by the named plaintiffs is necessary or proper. SECOND DEFENSE All aspects of the government of the City of Mobile are subject to determination by the Legislature of the State of Alabama. In the exercise of its discretion, the mission form of government, as distinguished from a Mayor- Council or Mayor-Aldermen or City Manager form, and has specified the number of commissioners and the method to be used in electing them. Under our federal constitutional system, the determination of such matters is committed to \state government and its components for resolution. The a system chosen by the Legislature does not unconstitutionally deprive any of the many identifiable segments of the community from equal access to the electoral process, or discriminate for or against any such segment, and the continued existence of such system should be permitted by the judicial branch of the United States government. THIRD DEFENSE The choice of the form of city government is a politi- cal issue committed under our federal system to the states for resolution and, in the case of the City of Mobile, the issue has been resolved by the Legislature of the State of Alabama in favor of a City Commission form of government [188] 26 elected at large. If the named plaintiffs, or any other black citizens of the City, desire to change Mobile's by the Legislature, which has authority over such matters and in which blacks from Mobile are currently serving as elected members. FOURTH DEFENSE The relief sought by plaintiffs in this cause ought | not to be granted because it would effect a deprivation of due process and equal protection of law, since if each commissioner were required to be elected from a single- member district, without a change in the statutory duties ofathie respective city commissioners, each commissioner, managing a particular function of city government (e.g., finance), would be directly responsible only to one of three geographical districts of the city. The result would be that the remaining portions of the city would have no vote at all either for or against such commissioner, who would execute policies of government without respon- sibility to two-thirds of those governed. FIFTH DEFENSE The relief sought by plaintiffs in this cause ought not to be granted because, in order for amy court-ordered single-member district plan to be imposed that would avoid the existence of a city government without electoral re- sponsibility and consequent deprivation of due process and equal protection of law, it would be necessary to change —— the form of city government validly enacted by the Legis- lature of Alabama from a city commission form to some other form of government. The choice of a form of city government is a function which our federal constitution entrusts to state government and its components, and the imposition of a different form of city government by a United States Court would violate established consti- tutional principles of comity and federalism. C.B, Arendall, Jr. I 30th Floor, First National Bank Bldg. Mobile, Alabama 36602 Attorney for Defendants OF COUNSEL: HAND, ARENDALL, BEDSOLE, GREAVES & JOHNSTON OF COUNSEL: LEGAL DEPARTMENT OF THE CITY OF MOBILE CERTIFICATE OF SERVICE A I do hereby certify that I have on this / day of fir 1975, served a copy of the foregoing pleading on counsel for all parties to this proceeding, by mail- ing a copy of the same by United States mail, properly addressed and first class postage prepaid. C.B. Arendall, 7 189 [332] 28 IN THE UNITED STATES DISTRICT CUURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVIHION WILEY L. BOLDEN, ET AL, Plaintiffs 3 va : CIVIL ACTION NO. 75-297 PF CITY OF MOBILE, ALABAMA, H ET AL, } Dafendants RBER The plaintiffs have filed a motion for an order certifying that they may maintain this action as a class action under Rule 23(b) (2) of the Federal Rules of Civil Procedure. The Court having considered the motion, oral argument | and briefs of the parties certifies that the plaintiffs may | maintain this action as a class action. The plaintiff class for the purposes of injunctive relief under Rule 23(b)(2) F.R.Civ.P. is defined by the Court | as all black persons who are now citizeas of the City of Mobile, Alabama. The Court finds that this class action complies with the requirements of Rule 23(a) and (Db) (2) F.R.Civ.P. and that the named plaintiffs have the standing to raise the issues for the purpose of injunctive relief. DONE at Mobile, Alabama, this [9% day of : , 1976. rae rr os a hg meEgED THIS THE : i STATES BIEHECT- JRE MINUTE RE) | a | Deputy Clerk | bl 29 [543] IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION WILEY L. BOLDEN, et al., Plaintiffs, CIVIL ACTION Vv. No. 75-297-P CITY OF MOBILE, ALABAMA, et al., N a ” N u Nu ? u t N a Na a t t Defendants. On October 6, 1976, the plaintiffs and defendants, in pursuance of the court's instructions, submitted three nominees each of persons to be considered for membership on the three-person committee to formulate a plan for mayor-council form of government with single member districts. The plan is subject to the approval of the court. The court on that date appointed Mr. Joseph N. Langan, former commissioner and mayor, as a member and chairman of the committee, and Mr. Arthur R. Outlaw, former commissioner and mayor. Mr. Langan and Mr. Outlaw were recommended by the defendants City of Mobile. The court also appointed Mr. James E. Buskey, a black representative to the State Legislature from House District 99 in Mobile County, wt wre rotten dod Coy : ! They were requested to keep a log of their time and to seek expert professional assistance if they 100 [544] ww oO deemed it necessary. They were requested to ask such experts to keep a log of their time and to inform them that their fees were subject to approval by the court. They were also instructed that they may seek such advice and assistance from any source they deemed appropriate. They were instructed that in case of disagreements, the majority vote would prevail. The committee was given a target date to report to the court of December 1, 1976. a U. S. DISTRICT COURT SOU. DIST. ALA. PILED AUD PNTTDRED THIS THE ) : Ff DAY OF ..oeIcfer 19 %., MINUS BUTRY NO. gE oD WILLIAZL J. CONNOR, CLERK BY 2% cL " DEPUTY CLERK 31 [548] IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA | SOUTHERN DIVISION WILEY L. BOLDEN, REV. R. L. HOPE, CHARLES JOHNSON, JANET | 0. LeFLORE, JOHN L. LeFLORE, CHARLES MAXWELL, OSSIE B. PURIFOY, RAYMOND SCOTT, SHERMAN SMITH, OLLIE LEE TAYLOR, RODNEY O. TURNER, REV. ED WILLIAMS, SYLVESTER WILLIAMS AND MRS. F. C. WILSON, Plaintiffs, CIVIL ACTION No. 75-297-P CITY OF MOBILE, ALABAMA: GARY A. GREENOUGH, ROBERT B. DOYLE, JR., and LAMBERT C. MIMS, individually and in their official capacities as Mobile City Commissioners, N e N a ? N t No N a No a Na Np a a Na a N t Na t No oF e:4 Defendants. OPINION AND ORDER This action is brought by Wiley L. Bolden and | other black plaintiffs representing all Mobile, Alabama, blacks as a class, claiming the present at-large system of electing city commissioners abridges the rights of the city's black citizens under the First, Thirteenth, | Fourteenth, and Fifteenth Amendments to the Constitution of the United States; under the Civil Rights Act of 1871, 42 U.S.C. §1983; and under the Voting Rights Act of 1965, as amended, 42 U.S.C. §1973, et seq. Plaintiffs alleged that the existing commission 7” form of government elected at-large . . . discriminates against black residents of Mobile in that their concen- [549] 32 trated voting strength is diluted and canceled out by the white majority in the City as a whole" with a con- sequent violation of their rights under the above Amendments to the Constitution. It is also claimed that their statutory rights under 42 U.S.C. §§ 1973, et seq. [Voting Rights Act of 1965] and 1983 [Civil Rights Act of 1871] were violated. Jurisdiction is premised upon 28 U.S.C. §1343(3) and (4). This court has jurisdiction over the claims based on 42 U.S.C. §1983 against the City Commissioners and over the claims grounded on 42 U.S.C. §1973 against all defendants under 28 U.S.C. §1343(3)-(4) and §2201. This cause was certified as a class action under Rule 23(b)(2), F.R.C.P., the plaintiff class being all black persons who are now citizens of the City of Mobile, Alabama. \ A claim originally asserted under 42 U.S.C. §1985(3) was dismissed for failure to state a claim upon which relief can be granted. Defendants are the three Mobile City Commissioners, sued in both their individual and official capacities. The prayed-for relies consists of, (1) a declara- tion that the present at-large election system is un- constitutional, (2) an injunction preventing the present commissioners from holding, supervising, or certifying any future city commission elections, (3) the formation of a government whose legislative members are elected from single member districts, and (4) costs and attorney -9- 33 [550] fees. Plaintiffs claim that to prevail they must prove to this court's satisfaction the existence of the elements probative of voter dilution as set forth by White v. Regester, 412 U. 8. 755, 93 8S. Ct. 2342, 37 L.Ed.2d 314 (1973), and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd. sub nom. East Carroll Parish School Board v. Marshall, U.S. , 96 S. Ct. 1083, 47 L.Ed.2d 296 (1976), contending Zimmer is only the adoption of specified criteria by the Fifth Circuit of the White dilution requirements. The defendants stoutly contest the claim of unconstitutionality of the city government as measured by White and Zimmer. They contend Washington v. Davis, U.S. . , 96 S. Ct. 2040, 48 L.Ed.2d 597 (1976); erects a barrier since the 1911 legislative act forming the multi-member, at-large election of the commissioners was without racial intent or purpose. They assert Washington, supra, 96 S. Ct. at 2047-49, which was an action alleging due process and equal protection violations, held that in these constitu- tional actions, in order to obtain relief, proof of intent or purpose to discriminate by the defendants must be shown. Defendants state, therefore, that since the statute under which the Mobile Commission government operates was passed in 1911, with essentially all blacks disenfranchised from the electorate by the Alabama 1901 convention, there could be no intent or purpose to dis- criminate at the time the statute was passed. Alterna- -3- 358 i [551] 34 tively, however, defendants contend that if Washington does not preclude consideration of the dilution factors of White and Zimmer, they should still prevail because plaintiffs have not sustained their burden of proof under these and subsequent cases. Plaintiffs' reply is to the effect that Washington did not establish any new constitutional purpose princi- ple and that White and Zimmer still are applicable. If, however, this court finds Washington to require a show- ing of racial motivation at the time of passage, or merely in the retention of the statute, plaintiffs con- tend they should still oEavALL claiming the at-large election system was designed and is utilized with the motive or purpose of diluting the black vote. Plaintiffs claim that the discriminatory intent can be shown under the traditional tort standard. FINDINGS OF FACT Mobile, Alabama, is the second largest city in Alabama located at the confluence of the Mobile River and Mobile Bay in the southwestern part of the state. Mobile's 1970 population was 190,026 with approximately 35.4% of the residents plat. | 1/ Defendants' Exhibit No. 12. According to the 1970 Federal Census, the City of Mobile had a total pop- ulation of 190,026 of whom 35.4%, or 67,356, were non-white. The evidence is clear that there are few non-whites other than blacks. 35 {557} 1973 Mobile County voters statistics estimate that 89.6% of the voting age white population is registered to vote, 63.4% of the blacks are registered. (Plain- tiffs! Exhibit No. 7). Mobile geographically encompasses 142 square miles. Most of the white residents live in the southern and western parts of the city, while most blacks live in the central and northern sectors (Plaintiffs' Exhibit No. 58). Housing patterns have been, and remain, highly segregated. Certain areas of the city are almost totally devoid of black residents while other areas are virtually all black. In a recent study by the Council on Municipal Performance, using 1970 block census data, Mobile was found to be the 95th most residentially segregated of the 109 municipalities surveyed (Plaintiffs' Exhibit No. 59). According to a study performed by the Universi- ty of South Alabama Computer Center for the defendants, the housing patterns in the city are so segregated it is impossible to divide the city into three contiguous zones of equal population without having at least one predominantly black district (Plaintiffs' Exhibit No. 60). Segregated housing patie have resulted in concentration of black voting power. Mobile presently operates under a three person commission-type municipal government adopted in 1911. (Ala. Act No. 281 (1911) p. 330). The commissioners are elected to direct one of the following three municipal departments: Public Works and Services, Public Safety, -5- 2 and Department of Finance.™ 2/ When adopted in 1911, Mobile's commission government did not specify that a candidate must choose the particular commission position for which he was run- ning. Alabama Act No. 823 (1965), p. 1539, however, inter alia, required candidates to run for a partic- ular numbered position with specific duties. Each commissioner holds that position during the four years tenure with the mayorality rotating between commissioners every sixteen months. The commissioners run on a place-type ballot and are elected at-large by the voters of Mobile. While the commission candidates must be residents of Mobile, there is not now, or has there ever been, a requirement that each commissioner reside in a particular part of the city. The evidence clearly indicates that district residence requirements with district elections would be improvident and unsound for the commission form of government. In addition to the specific position for which a commissioner runs, each is also responsible for num- erous appointments to the 46 committees operating under the auspicies of the city. Some appointments are com- pletely discretionary with the commissioner whereas committees, such as the plumbing and air conditioning boards which require members with a certain amount of expertise, are filled with a nominee suggested by the local trade association. Often, the appointing com- missioner makes his appointment from the slate of nom- inees presented by the particular association. This means that if the nominating association does not propose a black as a committee member, the commissioner will not -6- 37 appoint one. It is, however, within the commission's power to modify or change the ground rules under which appointments are made. In Zimmer, supra, aff'd. sub nom. East Carroll Parish School Board, supra,('. . . but without approval of the constitutional views expressed by the court of appeals.’), the Fifth Circuit synthesized the White opinion with the Supreme Court's earlier Whitcomb v. Chavis, 403 U. S. 124, 91 S. Ct. 1858, 29 L.Ed.2d 363 (1971), decision, together with its own opinion in Lipscombe v. Jonsson, 459 F.2d 335 (5th Cir. 1972) and set out certain factors to be considered. Based on these factors as set out in Zimmer, supra, at 1305, the court makes the following findings with reference to each of the primary and enhancing factors: LACK OF OPENNESS IN THE SLATING PROCESS OR CANDIDATE SELECTION PROCESS TO BLACKS. Mobile blacks were subjected to massive official and private racial discrimination until the Voting Rights Act of 1965. It has only been since that time that sig- nificant diminution of these discriminatory practices has been made. The overt forms of many of the rights now exercised by all Mobile citizens were secured through federal court orders together with a moral commitment of many of its dedicated white and black citizens plus the [554] i i i | t i | i [555] 38 power generated by the restoration of the right to vote which substantially increased the voting power of the blacks. Public facilities are open to all persons. Job opportunities are being opened, but the highly visible job placements in the private sector appear to lead job placements in the city government sector. The pervasive effects of past discrimination still substantially affects political black participation. There are no formal prohibitions against blacks 3 seeking office in sobite.¥ Since the Voting Rights —— 3/ The qualifying fee for candidates for the city com- mission was found unconstitutional in Thomas v. Mims, 317 F. Supp. 179 (S.D. Ala. 1970). See also V. 5. v. State of Ala., 252 PF, Supp. 95 (M.D. Ala. 1966) (three judge District Court panel) (poll tax declared unconstitutional). Act of 1965, blacks register and vote without hindrance. The election of the city commissioners is non-partisan, i.e., there is no preceding party primary and the candi- dates do not ordinarily run under party labels. However, the court has a duty to look deeper rather than rely on surface appearance to determine if there is true open- ness in the process and determine whether the processes "leading to nomination and election [are] . . . equally open to participation by the group in ques- tion. . . ." White, 412 U. S. at 766. One indication that local political processes are not equally open is the fact that no black person has ever been elected to the at-large city commission -8- 535 39 office. This is true although the black population level is in excess of one-third. In the 1960's and 1970's, there has been general polarization in the white and black voting. The polari- zation has occurred with white voting for white and black for black if a white is opposed to a black, or if the race is between two white candidates and one candidate is identified with a favorable vote in the black wards, or identified with sponsoring particularized black needs. When this occurs, a white backlash occurs which usually results in the defeat of the black candidate or the white candidate identified with the blacks. Since 1962, four black candidates have sought election in the at-large county school board election. Dr. Goode in 1962, Dr. Russell in 1966, Ms. Jacobs i 1970, and Ms. Gill in 1974. All of these black candi- dates were well educated and highly respected members of the black community. They all received good support from the black voters and virtually no support from whites. They all lost to white opponents in run-off elec- tions. Three black candidates entered the race of the Mobile City Commission in 1973. Ollie Lee Taylor, Alfonso Smith, and Lula Albert. They received modest support from the black community and virtually no sup- port from the white community. They were young, inexperi- enced, and mounted extremely limited campaigns. Two black candidates sought election to the Alabama State Legislature in an at-large election in 1969. They el) 336 [556] [557] 40 were Clarence Montgomery and T. C. Bell. Both were well supported from the black community and both lost to white opponents. Following a three-judge federal court order 4 in 1072 in which single -member districts were estab- 4/ Sims v. Amos, 336 F. Supp. 924 (M.D. Ala. 1972). lished and the house and senate seats reapportioned, one senatorial district in Mobile County had an almost equal division between the black and white population. A black and white were in HE Pin OLE. The white won by 300 votes. There was no overt acts of racism. Both candidates testified or asserted each appealed to both races. It is interesting to note that the white winner palit a simulated newspaper with both can- didate's photographs appearing on the front page, one under the other, one white, one black. One city commissioner, Joseph N. Langan, who served from 1953 to 1969, had been elected and reelected with black support until the 1965 Voting Rights Act enfranchised large numbers of blacks. His reelection campaign in 1969 foundered mainly because of the fact of the backlash from the black support and his identi- fication with attempting to meet the particularized needs of the black people of the city. He was again defeated in an at-large county commission race in 1972. Again the backlash because of the black support sub- stantially contributed to his defeat. -10- 357 41 [553] In 1969, a black got in a run-off against a white in an at-large legislature race. There was an agreement between various white prospective candidates not to run or place an opponent against the white in the run-off so as not to splinter the white vote. The white won and the black lost. Practically all active candidates for public office testified it is highly unlikely that anytime in the foreseeable future, under the at-large system, that a black can be elected against a white. Most of them agreed that racial polarization was the basic reason. The plaintiffs introduced statistical analyses known as "regression analysis" which supported this view. Regression analysis is a professionally accepted method of analyzing data to determine the extent of correlation between dependent and independent variables. In plain- tiffs' analyses, the dependent variable was the vote received by the candidates studied. Race and income were the independent variables whose influence on the vote received was measured by the regression. There is little doubt that race has a strong correlation with the vote received by a candidate. These analyses covered every city commission race in 1965, 1969, and 1973, both primary and general election of county com- mission in 1968 and 1972, and selected school board races in 1962, 1966, 1970, 1972, and 1974. They also covered referendums held to change the form of city government in 1963 and 1973 and a countywide legislative race in 1969. The votes for and against white candidates -11- 558 [559] 42 such as Joe Langan in an at-large city commission race, and Gerre Koffler, at-large county school board commis- sion, who were openly associated with black community interests, showed some of the highest racial polariza- tion of any elections. Since the 1972 creation of single -member district, three black of the present fourteen member Mobile County delegation have been elected. Their districts are more heavily populated with blacks than whites. Prichard, an adjoining municipality to Mobile, which in recent years has obtained a black majority population, elected the first black mayor and first black councilman in 1972. Black candidates at this time can only have a reasonable chance of being elected where they have Rt majority or a near majority. There is no reasonable expectation that a black candidate could be elected in a citywide election race because of race polariza- tion. The court concludes that an at-large system is an effective barrier to blacks seeking public life. This fact is shown by the removal of such a barrier, i.e., the disestablishment of the multi-member at-large elec- tions for the state legislature. New single member districts were created with vaca Wohpoliinins that offer blacks a chance of being elected, and they are being elected. The court finds that the structure of the at-large election of city commissioners combined with strong -12- 839% 43 [560] racial polarization of Mobile's electorate continues to effectively discourage qualified black citizens from seeking office or being elected thereby denying blacks equal access to the slating or candidate selection process. UNRESPONSIVENESS OF THE ELECTED CITY OFFICIALS TO THE BLACK MINORITY. The at-large elected city commissioners have not been responsive to the minorities' needs. The 1970 population of the city is 64.5% white and 35.4% Blacks ’ 5/ See Footnote 1, supra. The City of Mobile is one of the larger employers in southwestern Alabama. It provided a living for 1,858 persons in 1975. 26.3% were black. It is signifi- cant to note, that if the lowest job classification, service/maintenance, were removed from our consideration, only 10.4% of the employees would be black. Likewise, removing the lowest salary classification, less than $5,900 per year, only 13.8% of all city employees are black. (Plaintiff's Exhibit No. 73). The Mobile Fire Department has only fifteen black employees out of a total of four hundred and 1 thirty-five employees. It took an order of this court in Allen v. City of Mobile, 331 F. Supp. 1134 (S/D Ala. -13- 360 [S61] 44 cert. denied 412 U.S. 909 (1973) 1971, aff'd. 466 F.2d 122 (5th Cir. 1972),/to desegregate the Mobile Police Department. That order set out guide- lines designed to remove racial discrimination in hiring, promoting, assigning duties, and the rendering of ser- vices. The city is also operating under another court order enjoining racial discrimination, Anderson v. Mobile County Commission, Civil Action No. 7388-72-H (S/D Ala. 1973). The municipal golf course was desegregated only after litigation in federal court, Sawyer v. City of ‘Mobile, 208 F. Supp. 548 (S/D Ala. 1961). This court in Evans v. Mobile City Lines, Inc., Civil Action No. 2193-63 (S/D Ala. 1963), dealt with segregation in City of public transportation, and in Cooke v./Mobile, Civil Action No. 2634-63 (S/D Ala. 1963), dealt with segre- gation at the city airport. = There are 46 city committees with a total member- ship of approximately 482. Forty-seven are black and 435 are white. The total prior membership is 179 of which only 7 were black. (Plaintiffs' Exhibit No. 64). The Industrial Development Board has fifteen members and no blacks and concerns itself with imple- menting a state law known as the "Cater Act” and the authorization of the issuance of municipal bonds for various business enterprises. Seven committees were organized by private investment groups for the purpose of securing municipal bonding and the black-white makeup of these groups can- not be charged to the city commission. That total mem- =14-~ 361 45 [562] bership is 21. Although the membership of these seven committees cannot be charged to the city commissioners, the absence of blacks indicates the permeating results of past racial discrimination in the economic life of Mobile business. This is indicated both from the absence of blacks in the investment groups making use of munici- pal bonds and in that no black or black financial insti- tutions have been able to take advantage of municipal bonds. The Board of Adjustment, which consists of seven members, has one black. This is a critical board. It can grant variances from zoning laws and building codes ‘involving less than two acres. The Codes Advisory Committee consists of 17 members and no blacks. This committee codifies all building regulations for all structures in the city. The Mobile Housing Board supervises public housing. Public housing is occupied predominantly by blacks. Fifty thousand persons, approximately 25% of Mobile's population, most of whom are black, cannot buy or rent without subsidies in the private sector, or live in sub- standard Rousing. of There is one black on that board 6/ All of these are not in public housing. There are approximately 3,376 public housing units in the city with approximately 12,153 occupants. out of a membership of five. The Educational Board provides plans and means to aid its employees in a continuing education program. It has nine members, none of whom are black. The county school system has approximately 55% white and 45% black -15- 46 7/ population. The black dropout rate from school is 7/ The school system is countywide under the supervi- sion of the Board of School Commissioners. The school system was desegregated in the case of Birdie Mae Davis v. Board of School Commissioners, Civil Action No. 3003-63-H, pending, and is under the continuing supervision of this court. The city commission cannot be charged with any lack of responsiveness in the Birdie Mae Davis case. That case illustrates the permeation of racial discrimination in the city which constitutes two- thirds of the county's population. higher than whites, therefore, the continuing education is most important to them. There are several boards, to wit, Air-Conditioning, Architectural Board, Board of Examining Engineers, and Board of flectrical Examiners, which require special skills. There are 17 members of these boards, all white. National census figures indicate that there are far less blacks in skilled groups than whites. The court recognizes that qualified persons should be appointed, but black membership becomes critical on such committees because it is through these committees that licenses are granted to skilled occupations. The absence of blacks shows an insensitivity to this particularized need. The city has not taken - affirmative action to place blacks on these critical boards. Most of the other committees are of various social and cultural nature in the city. No effort has been made to bring blacks into the mainstream of the social and cultural life by appointing them in anything -16- 963 47 more than token numbers. There are only three blacks out of 46 members on the Bicentennial Committee and only three out of 14 on the Independence Day Celebra- tion Committee. Primarily because of federal funding and prod- ding, the city's advisory group for the mass transit technical group has three blacks and five whites. Mobile was originally founded on the west bank of the Mobile River. The land elevation for most of the business and residential area until World War II was from zero to ten feet. There has been a substantial western expansion from the Mobile River and Bay which lies to the east. Elevation in most of these areas ranges from 40 to 50 feet, but in some of the areas it reaches as much as 160 feet. There are three principal watersheds in the Mobile area. ° :: Three Mile Creek, traverses the northern one-third of the city draining west to east. The southern one-third of the city is drained by Dog River running from west to east. The remaining one- third, which consists of old downtown and residential Mobile, drains east to the Mobile River. Mobile has an annual rainfall of 60 or more inches per year. It is subject to torrential downpours. All areas of Mobile, white and black, are traversed by open drainage ditches. All areas, white and black, are subject to standing water after torrential downpours with water in parts of all areas reaching the depth of one to two feet. -17- 964% [564] [565] 48 Mobile has a master drainage plan to be im- plemented over a long period of time. Unfortunately, most of the black residential areas are drained by the Three Mile Creek. The drainage system for Three Mile Creek involves issuing bonds and financing by the city which involves millions of dollars projected over several years. There has not been overt gross discrim- ination against the blacks in connection with the drain- age project. However, almost all temporary relief in critical areas has been in the white areas. Somehow the white areas get relief with little temporary relief given the black areas. The resurfacing and maintenance of streets in black neighborhoods significantly suffers in comparison with the resurfacing of steets in white neighborhoods. The testimony and an in-person visit of these areas by the court sustains this conclusion. The U. S. Treasury Department, after a complaint filed by the NAACP, found racial discrimination in the city's resurfacing program. The city was advised by letter this would have to be corrected in order for the city to comply with the anti-discrimination provision of the Revenue Sharing Act. (Plaintiffs' Exhibit No. 111). The construction of = - first class roads, curbs, gutters, and underground storm sewers are closely re- lated to the drainage system. If this type of construc- tion is done in areas subject to repeated flooding, it is a waste of money. The court observed that on the -18- 965 49 [566] southside of Three Mile Creek near the Crichton area, which was formerly white - now mixed or predominantly black, in the areas near the creek and subject to flooding, the streets were paved with curb and gutters while on the northside, near the black Trinity Gardens area, only two streets have low-cost paving with curbs, gutters, and underground drainage. Most of the streets are unpaved. To put in first class paving in that black area would be unwise financially, but there is a significant difference and sluggishness in the response of the city to critical needs of the blacks compared to that in the white area. There is the same difference and sluggishness between whites and blacks in making provisional or temporary mitigating improvements pending development of the master drainage plan throughout the city. The Williamson School, in a predominantly black area, is in a densely populated residential and neigh- borhood business area. The houses are on lots large enough and far enough from the streets that the placing of sidewalks could be done without great difficulty. Children from low income families frequently walk or ride bicycles to and from school. Sidewalks are critical in such areas. There was a noticeable lack of sidewalks in and near the Williamson School. The lack of sidewalks in the Plateau area presents a different problem. The streets are narrow and the lots are small. The houses are built very close to the streets. -19- 366 [567] 50 The personal inspection by the court revealed the obvious difficulty in placing sidewalks in that area. Blacks in Mobile, and their neighborhoods, endure a greater share of infant deaths, major crimes, T.B. deaths, welfare cases, and juvenile delinquency than do whites in their neighborhoods. In The Neighbor- hoods of Mobile: Their Physical Characteristics and Needed Improvements (1969), the Mobile City Planning Commission in Table Q of the Appendix, rates the 78 neighborhoods according to social blight. Nine of the 14 most blighted neighborhoods were predominantly black. The causes of this blight are-multiple and it would be inaccurate to suggest that a single member district plan or the election of all black officials would correct them. Some of the causes, as the study in Table A indicates, include inadequate drainage, water, streets, sidewalks, and zoning. The city has a large responsi- bility in these areas. Although the city has not been totally neglectful, and the expense and problems are monumental, there is a singular sluggishness and low priority in meeting these particularized black neighbor- hood needs when compared with a higher priority of temporary allocation of resources when the white community is involved. The Park and Recreation Program has generally been administered in an evenhanded fashion, but a city pro- jected park development program in the western part of the city over a period of years involving large sums of money indicates an expansion in predominantly white -20- 967 51 [568] areas without a simultaneous consideration of the black area needs. The black community has long complained of police brutality. A number of investigations have been made by the FBI but no indictments or evidence has been uncovered to substantiate serious charges of this nature. On March 28, 1976, a black was arrested near the scene of an alleged burglary. On April 8, an attorney for the law firm of the plaintiffs' attorney in this case reported to the Police Commissioner that there had been an alleged attempted or "mock" lynching of the black person arrested. On April 9, a meeting was held between the commission, the black non-partisan voters league, the district attorney's office, the chief of police, and others concerning this instance. The blacks claimed the charges were so serious that the arresting officer should be suspended imme- diately. It is claimed by the plaintiffs that this officer at that time had pending against him a case of alleged police brutality.® The City Attorney immediately obtained some statements of the alleged "mock" lynching indicating there was substance in the charges. On April 13, that officer was discharged and seven others were suspended. Five indictments were returned in con- nection with the alleged "mock" lynching. The court does not deem it appropriate to make further comments concerning the details. Suffice it to ny there was a timid and slow reaction by the city commission to the -21- [569] 52 alleged "mock" lynching. The Police Department then instituted an investiga- tion on the older pending charges. As a result of the investigation, two officers were discharged and six were suspended, all in connection with charges of police brutality but concerning unrelated incidents occurring prior to the alleged "mock" lynching. Shortly thereafter there were twenty to thirty alleged cross burnings in Mobile and adjoining Baldwin County. Two of these were reported to have been in the City of Mobile. The lack of reassurance by the city commission to the black citizens and to the concerned white citizens about the alleged "mock lynching and cross burnings indicates the pervasiveness of the fear of white backlash at the polls and evidences a failure by elected officials to take positive, vigorous, affirma- tive action in matters which are of such vital concern to the black people. The sad history of lynch mobs, racial ‘discrimination and violence attributed to cross- burners or fellow-travelers, justifiably raises specters and fears of legal and social injustice in the minds and hearts of black people. White people who are com- mitted to the American ideal of equal justice under the law are also apprehensive. This sluggish and timid response is another manifestation of the low priority given to the needs of the black citizens and of the political fear of a white backlash vote when black citi- zens needs are at stake. -22- 369 53 [570] THERE IS NO TENUOUS STATE POLICY SHOW- ING A PREFERENCE FOR AT-LARGE DISTRICTS. There is no clear cut State policy either for or against multi-member districting or at-large elec- tions in the State of Alabama, considered as a whole. The lack of State policy therefore must be considered as a neutral factor. In considering the State policy with specific reference to Mobile, the court finds that the city commission form of government was passed in 1911. That law provided for the election of the city commis- sioners at-large. This feature has not been changed although there have been some amendments to designate duties for the commissioners as well as to designate numbered places. Beginning in 1819, the year Alabama became a state in the Union, until 1911, the great majority of the time the city operated under a mayor- alderman form of government. The election for the mayor and aldermen was either at-large or from multi- member districts or wards. The manifest policy of the City of Mobile has been to have at-large or multi- member districting. PAST RACIAL DISCRIMINATION Prior to the Voting Rights Act. of 1965, there was effective discrimination which preciuded effective participation of blacks in the elective system in the State, including Mobile. One of the primary purposes of the 1901 Constitu- tional Convention of the State of Alabama was to disen- -23- 570 [571] 54 franchise the blacks. The Convention was singularly successful in this objective. The history of discrim- ination against blacks' participation, such as the cumulative poll tax, the restrictions and impediments to blacks registering to vote, is well established. Local discrimination in the city and the county has already been noted in connection with the lawsuits concerning racial discrimination arising in this court, to wit, the Allen, Anderson, Sawyer, Evans, and Cooke, supra, cases. Preston v. Mandeville, 479 F.2d 127 (5th Cir. 1973) was a countywide case involving racial ” discrimination of Mobile's jury selection practices. Smith v. Allwright, 321 U. S. 649, 64 S. Ct. 757, 88 L.Ed.2d 987, (1944) (white primaries) was applicable to Alabama and some Alabama cases of discrimination are Davis v. Schnell, 81 F. Supp. 872 (S/D Ala. 1949), aff'd. 336 U.S. 933, 69 S. Ct. 749, 93 L.Ed. 1093 (1949), ("interpretation” tests for voter registration), Gomillion v. Lightfoot, 3640. 8S. "339, 81 8. Ct. 125, 5°L.Ed.2d'110°(1960) (racial gerrymandering of local government), Reynolds v. Sims, 377 U. S. 533, 84 S. Ct. 1362, 12 L.Ed.2d 506 (1964) (racial gerrymandering of state government), and U. S. v. Alabama, 252 F. Supp. 95 (M/D Ala. 1966) (Alabama poll tax). : The racial polarization existing in the city elections has been discussed herein. The court finds that the existence of past discrimination has helped preclude the effective participation of blacks in the election system today in the at-large system of electing city commissioners. -24- 571 55 [572] In the 1950's and early sixties, prior to the Voting Rights Act of 1965, only a relatively small percentage of the blacks were registered to vote in 8 the county and city. 3 Since the 1965 Voting Rights 8/ In the 1950's or 1960's the impediments placed in the registration of blacks to vote was not as aggravated in Mobile County as in some counties. It was not necessary for voter registrars to be sent to Mobile to enable blacks to register. Act, the blacks have been able to register to vote and become candidates. ENHANCING FACTORS With reference to the enhancing factors, the court finds as follows: (1) The citywide election encompasses a large district. Mobile has an area of 142 square miles with a population of 190,026 in 1970. (2) The city has a majority vote requirement. Alabama Acts 281 (1911) at 343, requires election of commissioners by a majority vote. (3) There is no anti-single shot voting pro- vision but the candidates run for positions by place 9/ or number .— 9/ The influence of this enhancing factor is minimal. Voters could scarcely make an intelligent choice for the best person to serve as a commissioner to perform specific duties, such as Department of Finance, without a numbered or place system. It is this writer's opinion, born out of 15 years experi- ence in a State judicial office subject to the elec- -25- 372 [573] 56 toral process, that the public's best interest is served, and it can make more intelligent choices, when candidates run for numbered posi- tions. The choices between candidates are narrowed for the voter and they can be compared head to head. (4) .There is a lack of provision for the at- large candidates to run from a particular geographical sub-district, as well as a lack of residence fequirenent. The court concludes that in the aggregate, the at-large election structure as it operates in the City of Mobile substantially dilutes the black vote in the City of Mobile. CONCLUSIONS OF LAW ¥. There is a threshold question faced by this court in whether or not Washington L. Bus, U.S. 1976) , 96 S. Ct. 2040, 48 L.Ed.2d 597,/is dispositive of this case so as to preclude an application of the factors determinative of voter dilution as set forth in White, supra, and Zimmer, supra, aff'd. sub nom. East Carroll Parish School Board, supra. It is the defendants' contention that Washington makes it clear that to prevail the plaintiffs must prove that the city commission form of government was adopted for Mobile in 1911 with a discriminatory purpose. They -26- 573 57 [574] further contend that since the 1901 Constitution of Alabama effectively disenfranchised the blacks, the at-large system adopted for the city commission in 1911 had no relation to minimizing or diluting the black vote because there was none. The city further contends that the commission form of government was adopted for purposes of executive efficiency and for an abandonment of the then corrupt aldermanic district elections. The plaintiffs contend that Washington did not establish a new Supreme Court purpose test. The thrust of the defendants' argument is that if the 1911 statute creating the at-large city commission form of government election was neutral on its face Washington does not permit this court to consider other evidence or factors and must decide the case in the city's favor. It is argued that Washington is a benchmark decision requiring this finding in the multi- member at-large city elections. Washington upheld the validity of a written personnel test administered to prospective recruits by the District of Columbia Police Department. It had been alleged the test "excluded a disportionately high number of Negro applicants.” Id. at 2044. The peti- tioners claimed the effect of this disportionate ex- clusion violated their Fifth Amendment due process rights and 42 U.S.C. §198l1. Id. at 2044. Evidence indicated that four times as many blacks failed to pass the test as whites. Plaintiffs contended the impact -27- 374% [575] 58 in and of itself? was sufficient to justify relief. They made no claim of an intent to discriminate. The District Court found no intentional conduct and refused relief. The Circuit Court reversed, relying upon Griggs v. Duke Power Co., 401 U. S. 424, 91 S. Ct. 849, 28 L.Ed.2d 158 (1971). Griggs was a Title VII action (42 U.S.C. §2000e, et seq.) in which the racially dis- criminatory impact of employment tests resulted in their invalidation by the court. The Supreme Court in Washington reconciled its decision with several previous holdings, distinguished some, and expressly overruled some cases in which there were possible conclusions different from Washington. They made no reference to the recent pre-Washington cases of its or appellate courts' voting dilution deci- sions dealing with at-large or multi-member versus single member districts, and, in particular, no mention was made of the cardinal case in this area, White v. Regester, 412 U. S. 755, 93 S. Ct. 2342, 37 L.Ed.2d 314, (1973), nor to Dallas v. Reese, 421 U. S. 477, 95 S. Ct. 1706, 44 L.Ed.2d 312, (1975), and Chapman v. Meier, 420 U. S..'1,:95 8. Ct. 751, 42 L.Ed.2d 766 (1975), nor to Zimmer, which the Court had affirmed only a few months before, nor to Turner v. McKeithen, 490 F.2d | 191 (5th Cir. 1975). No reference was made to Fortson v. Dorsey, 379 U. S. 433, 85 S. Ct. 498, 13 L.Ed.2d 401 (1965), to Reynolds, nor to Whitcomb. Whitcomb, -28- 975 59 [576] 403 U. S. at 143, recognized that in an at-large election scheme, a showing that if in a particular case the system operates to minimize or cancel out the voting strength of racial or political elements, the courts can alter the structure. Had the Supreme Court intended the Washington case to have the far reaching consequences contended by defendants, it seems to this court reason- able to conclude that they would have made such an expression. There are several reasons which may be plausi- bly advanced as to why the Washington Court did not expressly overrule nor discuss these cases. Courts are not prone to attempt to decide every eventuality of a case being decided or its effect on all previous cases. The Court may have desired that there be further development of the case law in the district and circuit courts before commenting on the application of Washing- ton to this line of cases. The cases may be disting- uishable and reconcilable with the expressions in Washington. Or, it may not have been the intention of the Washington Court to include these cases within the ambit of its ruling. Washington spoke with approval of Wright v. Rockefeller, 376 0. 8S. 52, 84 8, Ct. 603, 11 L.Ed.24 512 (1964), setting out the "intent to gerrymander’ require- ment established in Wright. Washington, at 2047-48. Wright was the direct descendant of Gomillion v. Lightfoot, 364 U. S. 339, 81 S. Ct. 125, 5 L.Ed.2d 110 -29- 376 E771 60 (1960). These two cases involved racial gerrymandering of political lines. Gomillion dealt with an attempt by the Alabama legislature to exclude most black voters from the municipal limits of Tuskegee so whites could control the elections. The court found that the State of Alabama impaired the voting rights of black citizens while cloaking it in the garb of the realignment of political subdivisions and held there was a violation of the Fifteenth Amendment. Gomillion, at 345. There was no direct proof of racial discriminatory intent. Justice Stevens in his concurring opinion noted with ”" approval, ". . . when the disproportionate impact] is as dramatic as in Gomillion, . . , it really does not matter whether the standard is phrased in terms of % 10/ purpose or effect. Washington, at 2054.7 (emphasis added). 10/ In Paige v. Gray, 538 F.2d 1108 (5th Cir. 1976), black citizens of Albany, Georgia, brought an action to invalidate the at-large system of elect- ing city commissioners. At 1110, n. 3, the court noted the above quote by Justice Stevens, but in the body of the opinion expressed concern with unlawful motive for discriminatory purpose as required by Washington. However, at 1110, the court stated “the validity of Albany's change from a ward to an at-large system can best be handled by applying the multifactor test enunciated in . . . White v. Regester . . . and Zimmer v. McKeithen." Paige, at 1110, stated Zimmer still "sets the basic standard in this circuit." : Wright dealt with the issue of congressional re- districting of Manhattan. The plaintiffs alleged racially motivated districting. The congressional lines drawn created four districts. One had a large majority of -30- 377 6l blacks and Puerto Ricans. The other three had large white majorities. The court held the districts were not unconstitutionally gerrymandered upon the finding that ". . . the New York legislature was [not] motivated by racial considerations or in fact drew the districts on. racial: lines.” Wright; 376 U. 8S. at 56.“ This Sel forth the principle that in gerrymandering cases in order for the plaintiffs to obtain relief they must show racial motivation in the drawing of the district lines. Washington then quoted with approval from Keyes v. School District No.1, 413.1..8. 180, 93 8. Ct. 2686, 37 L.Ed.2d 548 (1973), indicating a distinction or reconciliation of that case with Washington. There had not been racial purpose or motivation ab initio in Keyes. Keyes was a Denver, Colorado, school desegregation case. Denver schools had never been segregated by force of state statute or city ordinance. Nevertheless, the ma jority found that the actions of the School Board during the 1960's were sufficiently indicative of ". . . [a] purpose or intent to segregate’ and a finding of de jure segregation was sustained. Keyes, at 205, 208. That court held that to find overt racial considerations in the actions of government officials is indeed a 11/ difficult task. 11/ In another Fifth Circuit case it was held that if ~ an official is motivated by such wrongful intent, he or she » . will pursue his discriminatory practices in ways that are devious, by methods subtle and elusive - for we -31- 578 [578] [579] 62 deal with an area in which 'subtleties of conduct. . . play no small part.’'" U. S. v. Texas Ed. Agency, 532 F.2d 380, 388, (5th Cir. 1976) (Austin II) (school desegregation). Washington further commented: ”" . an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another." Washington, 96 S. Ct. at 2049, The plaintiffs contend that Washington's discus- sion with approval of the Keyes case permits the appli- cation of the "tort" standard in proving intent. In his concurring opinion, Justice Stevens discussed this point: "Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For nor- mally the actor is presumed to have intended the natural consequences of his deeds. This 1s particularly true in the case of governmental action which is frequently the product of compromise, of collective decision- making, and of mixed motivation." Washington, 96 S. Ct. at 2054 (emphasis added). : The plaintiffs contend this circuit's use of the tort standard of proving intent squares with the above statements. This circuit for several years has accepted and approved the tort standard as proof of segregatory intent as a part of state action in school desegregation findings. Morales v. Shannon, 516 F.2d 411, 412-13 (5th Cir. 1975), cert. den. 423 U.S. 1034 (1975). -32~- 379 63 [580] Recently, citing Morales, supra, Cisneros Vv. Corpus Christi Independent School District, 467 F.2d 142 (5th Cir. 1972) (en banc), cert. den. 413 U. S. 920 (1973), reh. den. 413 U. S. 922 (1973), and United States v. Texas Educational Agency, 467 F.2d 848 (5th Cir. 1972) (en banc) (Austin I), the Fifth Circuit in U. S. v. Texas Education Agency, (Austin Independent School District) 532 F.2d 380 (5th Cir. 1976) (Austin II) squarely addressed the meaning of discriminatory intent in the following language: "Whatever may have been the origi- nally intended meaning of the test we applied in Cisneros and Austin I [U.S. v. Texas Education Agency, supra, J], we agree with the intervenors that, after Keyes, our two opinions must be viewed as incorporating in school segregation law the ordinary rule of tort law that a person in- tends the natural and foreseeable consequences of his actions. kX kx Xx "Apart from the need to conform Cisneros and Austin I to the super- vening Keyes case, there are other reasons for attributing responsibility to a state official who should rea- sonably foresee the segregative ef- fects.of his actions, Pirst, it is difficult -"and often futile - to obtain direct evidence of the official's in- tentions. . . . Hence, courts usually rely on circumstantial evidence to ascertain the decisionmakers' motiva- | tions.” Id. at 388, This court in its findings of fact has held that when the 1911 statute was enacted, at a time the blacks were disenfranchised, the statute on its face was neutral. This is in line with Fifth Circuit opin- ions, McGill v. Gadsden Co. Commission, 535 F.2d 277 -33- [581] 64 (5th Cir. 1976), Wallace v. House, 515.7.2d at 633 {5th Cir. 1975), vacated .* . U.S, 90:8, Ct. 1721, 48 L.Ed.2d 191 (1976), No. 74-2654 (5th Cir., Sept. 17, 1976), affirmed the District Court.and Taylor .v. McKeithen, 499 F.2d 893, 896 (5th Cir. 1974). However, in the larger context, the evidence is clear that one of the primary purposes of the 1901 constitutional con- vention was to disenfranchise the placks. 2 12/ The history of Alabama indicates that there was a populist movement at that time which sought to align the blacks and the poor whites. The Bourbon interests of the State sought to disenfranchise the poor whites along with the blacks but were unsuccessful, excepting the cumulative feature of the poll tax. They were singularly success- ful in disenfranchising the blacks. Therefore, the legislature in 1911 was acting in a race-proof situation. There can be little doubt as to what the legislature would have done to prevent the blacks from effectively participating in the politi- cal process had not the effects of the 1901 constitution prevailed. The 1901 constitution and the subsequent statutory schemes and practices throughout Alabama, until the Voting Rights Act of 1965, effectively dis- enfranchised most blacks. A legislature in 1911, less han 50 years after a bitter and bloody civil war which resulted in the emancipation of the black slaves, should have reason- ably expected that the blacks would not stay disenfran- chised. It is reasonable to hold that the present di- lution of black Mobilians is a natural and foreseeable -34- 581 65 [582] consequence of the at-large election system imposed in 191.1. Under Alabama law, the legislature is responsi- ble for passing acts modifying the form of city and county governments. Mobile County elects or has an effective electoral voice in the election of eleven members of the House and three senators. The state legislature observes a courtesy rule, that is, if the county delegation unanimously endorses local legislation the legislature perfunctorily approves all local county legislation. The Mobile County Senate delegation of three members operates under a courtesy rule that any one member can veto any local legisla- tion. If the Senate delegation unanimously approves the legislation, it will be perfunctorily passed in the State Senate. The county House delegation does not operate on an unanimous rule as in the Senate, but on a majority vote principle, that is, if the majority of the House delegation favors local legislation, it will be placed on the House calendar but will be sub- ject to debate. However, the proposed county legislation will be perfunctorily proved if the Mobile County House delegation unanimously approves it. The evidence is clear that whenever a redistricting bill of any type is proposed by a county delegation member, a major con- cern has centered around how many, if any, blacks would -35- 382 [583] 66 be elected. These factors prevented any effective redistricting which would result in any benefit to the black voters passing until the State was redistricted 13 by a federal court order ils There are now three blacks 13/ Sims v. Amos, 336 F. Supp. 924 (M/D Ala. 1972). House on the eleven member /legislative delegation. This re- sulted in passage in the 1975 legislature of a bill doing away with the at-large election of the County Board of School Commissioners and creating five single member districts. This was promptly attacked by the all-white at-large elected County School Board Com- mission in the State court. The act was declared un- constitutional for failure to have met statutory re- quirements concerning advertisement. This natural and foreseeable consequence of the 1911 Act, black voter dilution, was brought to fruition in 50 odd years, the middle 1960's, and continues to the present. This court sees no reason to distinguish a school desegregation case from a voter discrimination case. It appears to this court that the evidence sup- ports the tort standard as advocated by the plaintiffs. However, this court prefers not to base its decision on this theory. This court deems it desirable to determine if the far-reaching consequence of Washington as ad- vanced by the defendants is correct without regard to Keyes. This court is unable to accept such a broad hold- ing with such far-reaching consequences. -36- 583 67 [384] The case sub judice can be reconciled with Washington. The Washington Court, in Justice White's majority opinion, included the following: "This is not to say that the necessary discriminatory racial purpose must be express or ap- pear on the face of the statute, or that a law's disportionate im- pact is irrelevant in cases in- volving Constitution-based claims of racial discrimination. A statute, otherwise neutral on its face, must not belapplied so as invidiously to discriminate on the basis of race. Yick Wo v. Hopkins, 118 U. S. 356 (1886)." Washington, 96 S. Ct. at 2048. To hold that the 1911 facially’ neutral statute would defeat rectifying the invidious discrimination on the basis of race which the evidence has shown in this case would fly in the face of this principle. It is not a long step from the systematic ex- clusion of blacks from juries which is itself such an "unequal application of the law. . . as to show intentional discrimination," Atkins v. Texas, 325 U. S. 398, 404,65 S. Ct. 1276, 89 L.Ed. 1692 (1945) and the deliberate systematic denials to people from juries because of their race, Carter v. Jury Commission, Cassell v. Texas, Patton v. Mississippi, cited in Washington, at 2047, to a present purpose to dilute the black vote as evidenced in this case. There is a "current" condition of dilution of the black vote resulting from intentional state legislative inaction which is as effective as the intentional state action -37- 384% [585] 68 referred to in Keyes. Washington, at 2048. More basic and fundamental than any of the above approaches is the factual context of Washington and this case. Initial discriminatory purpose in employment and in redistricting is entirely different from resulting voter dilution because of racial dis- crimination. Washington's failure to expressly overrule or comment on White, Dallas, Chapman, Zimmer, Turner, Fortson, Reynolds, or Whitcomb, leads this court to the conclusion that Washington did not overrule those cases nor did it establish a new Supreme Court purpose test and require initial discriminatory purpose where voter dilution occurs because of racial discrimination. PT. In order for this court to grant relief as prayed for by plaintiffs, it must be shown that the political process was not open equally to the plain- tiffs as a result of dilution of voting strength and consequently the members of the class had less op- portunity to participate in the political process and elect representatives of their choice. Chapman, 420 U. S. at 18, and Whitcomb. "Access to the political process and not [the size of the minority] population’ is the key determinant in ascertaining whether there has been invidious discrimination so as to afford relief, . White, 412 U. 8S. at 766; Zimmer, 485 F.2d at 1303. | | | -38- 385 69 [586] The idea of a democratic society has since the establishment of this country been only a sup- position to many citizens. The Supreme Court vocalized this realization in Reynolds where it formulated the "one person-one vote' goal for political elections. The precepts set forth in Reynolds are the sub- structure for the present voter dilution cases, stating that "every citizen has an inalienable right to full and effective participation in the political processes ." Reynolds, 377 U. S. at 565. The Judiciary in subsequent cases has recognized that this principle is violated when a particular identifiable racial group is not able to fully and effectively participate in the political process because of the system's structure. Denial of full voting rights range from out- right refusal to allow registration, Smith, to racial gerrymandering so as to exclude persons from voting in a particular jurisdiction, Gomillion, to establish- ing or maintaining a political system that grants citizens all procedural rights while neutralizing their political strength, White. The last arrange- ment is maintained by the City of Mobile. Essentially, dilution cases revolve around the "quality" of representation, Whitcomb, 403 U. S. at 142. The touchstone for a showing of unconstitutional racial voter dilution is the test enunciated by the Supreme Court -39- 386 [587] 70 in White, 412 U. S. at 765: "Whether multi-member districts are being used invidiously to cancel out or minimize the voting strength of racial groups." In White, for slightly different reasons in each county, the Supreme Court found that the multi-member districts in Dallas and Bexar Counties, Texas, were minimizing black and Mexican-American voting strength. Attentive consideration of the evidence pre- sented at the trial leads this court to conclude that the present commission form of government in the City of Mobile impermissibly violates the constitutional rights of the plaintiffs by improperly restricting their access to the political process. White, 412 U. 8S. at 766; VYhitcomb, 403 U. 8. ‘at 143. The plain- tiffs have discharged the burden of proof as required by Whitcomb. This court reaches its conclusion by collating the evidence produced and the law propounded by the federal appellate courts. The controlling law of this Circuit was enunciated by Judge Gewin in Zimmer, which 14/ closely parallels Whitcomb and White.” The Zimmer 14/ See also Paige v. Gray, 538 F.2d 1108 (5th Cir. 1978). court, in an en banc hearing, set forth four primary and several "enhancing' factors to be considered when resolving whether there has been impermissible voter dilution. The primary factors are: " . a lack of access to the process -40- | 73% [588] of slating candidates, the unre- sponsiveness of legislators to their particularized interests, a tenuous state policy underlying the preference for multi-member or at-large districting, or that the existence of past discrimination in general precludes the effective participation in the election system, a strong case [for relief] is made." Zimmer at 1305. [footnotes omitted]. The enhancing factors include: "a showing of the existence of large districts majority vote requirements, anti-single shot voting provisions and the lack of provision for at-large candidates running from particular geographical subdistricts." Zimmer at 1305. [footnotes omitted]. 1. LACK OF OPENNESS IN THE SLATING PROCESS OR CANDIDATE SELECTION PROCESS TO BLACKS. First, the political parties in the City of Mobile do not slate candidates per se; rather, any person Literested in running for the position of city commissioner is able to do so. There has been little evidence to a ''party' supporting one candidate or another in the city races. The system at first blush appears to be neutral, but consideration of facts beneath the surface demonstrate the effects which lead the court to conclude otherwise. No black has ever been elected city commissioner in Mobile. The evidence indicates that black politicians who have previously been candidates. in at-large elections and would run again in the smaller single member districts, shy away from city at-large elections. One of the prin- cipal reasons is the polarization of the white and black vote. The court is concerned with the effect of lack of -41- [589] 72 of openness in the electoral system in determining whether the multi-member at-large election system of the city commissioners is invidiously discriminatory. In White, the Supreme Court expressed concern with any type of barrier to effective participation in the political process. Zimmer, 485 F.2d at 1305 n.20, expressed its view in this language: "The standards we enunciate today are applicable whether it is a specific law or custom or practice which causes dimi- nution of a minority voting strength." There is a lack of openness to blacks in the political process in city elections. 2. UNRESPONSIVENESS OF THE ELECTED CITY OFFICIALS TO THE BLACK MINORITY. It is the conclusion of the court that the city- wide elected municipal commission form of government as practiced in the City of Mobile has not and is not responsive to blacks on an equal basis with whites; hence there exists racial discrimination. Past admin- istrations not only acquiesed to segregated folkways, but actively enforced it by the passage of numerous city ordinances. There have been orders from this court to desegregate the police department, the golf course, public transportation, the airport, and which attack 15 racial discrimination in employment. 15/ The County School Board, which operates both in the city and county, has been in federal court continu- ously since 1963 to effect meaningful desegregation. Davis v. Mobile County School Board, Civil Action No. 3003-63 (S/D Ala. 1963). Incidentally, during -42~ 989 23 [590] the course of the court's continuing jurisdiction in Davis, there have been fifteen or more appeals to the Fifth Circuit. There has been a lack of responsiveness in em- ployment and the use of public facilities. It is this court's opinion that leadership should be furnished in | non-discriminatory hiring and promotion by our govern- 16/ ment, be it local, state, or federal.” 16/ Norman R. Mclaughlin, etc. v. Howard H. AAA et al., Civil Action No. 74-123-P, S/D Ala. 9/30/74, at p. 22: "It is only fitting that the govern- ment take the lead in the klattle against discrimination by ferreting out and bringing an end to racial discrimination in its own ranks. Mobile has no ordinances proclaiming equal employ- ment opportunity, either public or private, to be its policy. There are no non-discriminatory rental ordinances. On the one hand, the federal courts are often subjected to arguments by recalcitrant state and local officials of the encroachment of the federal bureaucracy and assert Tenth Amendment violations - while making no mention that were it not for such "encroachment citizens would not have | made the progress they have to fulfillment of equal rights. Recent history bears witness to this propo- sition. In addition to the refusal of officials to vol- untarily desegregate facilities, the city commissioners have failed to appoint blacks to municipal committees in numbers even approaching fair representation. Appoint- ments to city committees are important not only to ob- tain diverse opinions from all parts of the community and share fairly what power the committees have, but | for the black community it would open parts of the gov- -43~ | 930 [591] 74 ernmental processes to those to whom they have for so long been denied. The city commission's custom or policy of appointing disproportionately few blacks to committees is a clear reflection of the at-large elec- tion system's dilution of blacks' influence and par- ticipation. The commissioners appoint citizens from their neighborhoods and constituencies, which are virtually all white. The commissioners have relatively less contact with the black community and hence are not as likely to know of black citizens who are qualified and interested in serving on committees. Recognizing the admonitions of the courts when judicially dealing with discretionary appointments, Mayor of the City of Philadelphia v. Educational Equality League, 415 U. S. 94 §, Ct. 1323, 605,/39 L.Ed.2d 630 (1974), and James v. Wallace, 533 F.2d 963 (8th Cir. 1976), that it is not within the authority of this court to order particular ap- pointments, it is this court's view that the failure to appoint a significant number of blacks is indicative of a lack of responsiveness. 3. NO TENUOUS STATE POLICY SHOWING A PREFERENCE FOR AT-LARGE DISTRICTS. The Alabama legislature has offered little evidence of a preference one way or the other for multi-member or at-large districts in cities the size of Mobile. For example, Title 7, 8426, Code of Alabama (1940 Supp. 1973), provides for a number of various forms of either multi-member or single-member municipal governments, with a municipality's option often dictated -44- 31 75 [592] by its size. Mobile, with a population exceeding 00,000 persons, is allowed by Alabama Code, Title 37, §426, to have a mixture of single-member and at-large aldermen. Consequently, this court finds state policy regarding multi-member at-large districting as neutral. Mobile itself has had a mixed history concerning its local preference for representative districting, particularly prior to the adoption of the commission government in 1911. Elections were usually at-large but at times there were some ward residency requirements and multi-member ward elections. Since 1911, however, the city commission has been elected in citywide at-large elections. 4. PAST RACIAL DISCRIMINATION. It is this court's opinion that fair and effective participation under the present electoral system is, because of its structure, difficult for the black citizens of Mobile. Past discriminatory customs and laws that were enacted for the sole and intentional purpose of extinguishing or minimizing black political power is responsible. The purposeful excesses of the past are still in evidence today. Indeed, Judge Rives, writing for a three-judge panel finding the Alabama poll tax to be unconstitutional, stated forcefully: "'The long history of the Negroes' struggle to obtain the right to vote in Alabama has been trumpeted before the Federal Courts of this State in great detail.*** If this Court ignores the long history of racial discrimination in Alabama, it will prove that justice is both -45- 592 [593] 76 blind and deaf.' We would be blind with indifference, not im- partiality, and deaf with inten- tional disregard of the cries for equality of men before the law." U. S. v. State of Alabama, 252 F. Supp. at 104 (M.D. Ala. 1966), [citing Sims v. Baggett, 247 PF. Supp. 96, 108-09 (M.D. Ala. 1965)]. Without question, past discrimination,, some of which continues to today as evidenced by the orders in several lawsuits in this court against the city and county, and demonstrated in the lack of access to the selection process and the city's unresponsiveness, contributes to black voter dilution. 5. ENHANCING FACTORS. Zimmer, in addition to enumerating four substan- tial criteria in proving voter dilution, listed four "enhancing factors" that should be considered as proof of aggravated dilution. a. Large Districts. The present at-large election system is as large as possible, i.e., the city. The city with an area of 142 square miles, and more than 190,000 persons, can reasonably be divided into election districts or wards. It is common knowledge that numerous towns and cities of much less size in Alabama are so divided and function reasonably well. It is large enough to be considered large within the meaning of this factor. b. Majority Vote Requirements. Alabama Acts No. 281 (1911) at 343, which established the Mobile com- mission form of government, required the election of the representatives by a majority vote. -46- 993 77 [594] c. Anti-single Shot Voting: There is in Act No. 281 "no anti-single shot" voting provisions nor is there one in the current codification, [Ala. Code, Title 37, §89, et seq.,] or in Alabama Acts No. 823 (1965) at 1539.27 17/ An "anti-single shot" provision obtained in all city elections from 1951 to 1961, see Ala. Code, Title 37, §33(1),but was repealed 9/15/61. : The numbered place provision of Act 823 (or, if Act 823 is invalid, Ala.Code, Title 37, §94) has to some extent the same result. At least in part, the practical 18 result of an anti-single shot provision obtains in Mobile. 18/ See footnote 9, supra. : d. Lack of Residency Requirement. Act 281 does not contain any provision requiring that any com- er 2 ; ] 19/ missioners reside in any portion of town. 19/ To impose residency requirements under Act 823, the designation of duty provision, (or if Act 823 is in- valid, Ala. Code, Title 37, §94, the numbered position provision), as well as the 1911 establishment of at- large election of city commissioners would at a minimum be anomalous and probably unconstitutional. City com- missioners in command of particular functions, such as public safety, residing and being elected from one particular side of town, would be accountable to only one-third of the population notwithstanding jurisdic- tion.over.the.entire,. city. . B.U.L.L. v. City of Shreveport, F. Supp. , No. 74-272 (W.D. Ia. July 16, 1976. ), also expresses this view. 111: The court has made a finding for each of the Zimmer factors, and most of them have been found in favor of the plaintiffs. The court has analyzed each factor separately, but has not counted the number present or absent in a "score-keeping" fashion. -47~- 594 [595] 78 The court has made a thoughtful, exhaustive analysis of the evidence in the record ". . . paying close attention to the facts of the particular situations at hand," Wallace, 515 F.2d at 631, to determine whether the minority has suffered an unconstitutional dilution of the vote. This court's task is not to tally the presence or absence of the particular factors, but rather, its opinion represents ". . . a blend of history and an intensely local appraisal of the design and impact of the multi-member district [under scrutiny] in light of past and present reality, political and otherwise." White, 412 U.S. at 769-70. The court reaches its conclusion by following the teachings of White, Dallas v. Reese, 421 U. S. 477, 480, 95 S. Ct. 1706, 44 L.Ed.2d 312 (1975), Zimmer, Fortson, and Whitcomb, et al. The evidence when considered under these teachings convinces this court that the at-large districts "operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” Whitcomb, 403 U. S. at 143, and Fortson, 379 U. S. at 439, and "operates impermissibly to dilute the voting strength of an identifiable element of the voting population, "”. Dallas, at 480. The plaintiffs have met the burden cast in White and Whitcomb by showing an aggregate of the factors cataloged in Zimmer. In summary, this court finds that the electoral structure, the multi-member at-large election of Mobile City Commissioners, results in an unconstitutional dilution of black voting strength. It is "fundamentally unfair’, -48- 395 E E — — — — — — — — — — — — — A — — — — — — — — — — — — — — — — o — — — — 79 [596] Wallace, 515 F.2d at 630, and invidiously discriminatory. The Supreme Court has laid down the general principle that "when District Courts are forced to fashion apportionment plans, single member districts are preferable to large multi-member districts as a general matter." Connor v. Johnson, 402 U. S. 690, 692, 91 S.Ct. 1760, 29°L.Ed. 2d 268-(1971). “The “Court reaffirmed this twice in the last term. East Carroll Parish School Board, and Wallace, supra. Once the racial discriminatory evil has been established, as it was in White, the dilution occasioned by the multi-member at-large election requires 106 | dives tablishnbnt of the multi-member at-large election and the obvious remedy is to establish single member districts. This court does not endorse the idea of quota voting or elections, nor of a weighted vote in favor of one race to offset racial prejudice or any other ad- versity. However, when the electoral structure of the government is such, as in this case, that racial dis- crimination precludes a black voter from an effective participation in the election system, a dilution of his and other black votes has occurred. The moving spirit present at the conception of this nation, "all men are created equal," will not rest and the great purpose of the Constitution to "establish Justice, insure domestic Tranquility, and secure the Blessings of Liberty to ourselves and 7" our Posterity. will be only a dream until every -49- 296 [597] 80 person has an opportunity to be equal. To have this opportunity, every person must be treated equally. This includes being treated equally in the electoral process. A city government plan which includes small single- member districts will provide blacks a realistic oppor- tunity to elect blacks to the city governing body. No such realistic opportunity exists as the city government is presently structured. A mayor-council plan with single-member council districts would afford such an opportunity. Blacks effective participation in the elective system will have the salutary effect of giving them a realistic opportunity to get into the mainstream of Mobile's life, not only in the political life, but will give them an opportunity to have an input and impact on the economic, social, and cultural life of the city. It will afford an opportunity for a more meaningful dialogue between the whites and blacks to develop. IV. There is a traditional constitutional tolerance of various forms of local government. See, e.g., Abate Vv. Mundt, 403 U4. S. 182, 185, 91 8S. Ct. 1904, 29 L.Bd.2d 399 (1971). The court recognizes the "delicate issues of federal-state relations underlying this case.” Mayor of the City of Philadelphia, 415 U. S. at 615. The futility of piecemeal efforts to correct racially discriminatory problems here has been demon- -50- 397 8L [598] strated in Davis v. Board of School Commissioners, as well as the suits previously filed against the city. The city commission form of government is newer and less widely used than the mayor-councilman (or alderman) form. Mobile operated under a mayor-councilman (in Mobile history sometimes called commissioner, mayor- alderman, etc.) plan from the time Alabama entered the Union in 1819 until 1911. Most of the other munici- palities in the county and state operate under such a plan. The change is not from the known to the unknown or from the old to the new. The court is unable to see how the impermissibly unconstitutional dilution can be effectively corrected by any other approach. The defendants have argued the governing body needs a citywide perspective, and quoted 87 Harv. L. Rev. 158 074). "The districtwide perspective and allegiance which result from representatives being elected at-large, and which enhance their ability to deal with districtwide problems, would seem more useful in a public body with responsibility only for the district than in a statewide legislature.” In a mayor-councilman plan, the mayor, the principal governing official, will be elected at-large and will have this citywide perspective, but the govern- ing body will have the benefit of members from single 20/ member districts. 207 © William Dove, Sr,, et al. v. Charles E, Moore, et al., S.0. 75-1918 (8th Cir. 7/27/76), set out in footnote -51- 398 [599] 3; 82 "The author has previously discussed at length the undesirable character- istics of at-large elections and the benefits of single-member districts. Chapman v. Meier, 372 F. Supp. 371, 88-94 (D. N.D. N.D. 1974) (three- judge court) (bright, .J., dissenting), majority reversed, "420 U.S. 1 (1975). In the context of a discussion of pro- posed plans for the reapportionment of a state legislature, the dissent em- phasized the following benefits of single-member districts: (1) (2) (3) (4) (5) (6) (7) It gives a voter a chance to compare only two candi- dates, head to head in making a choice. It prevents one political party with a Heavy plurality in one or two potential dis- tricts from dominating other potential districts that might narrowly go for the candidate of the opposite party. It prevents a city wide political organization from ostracizing or disciplining a legislator, who dares stray from the machine's line. It permits a citizen to identify a legislator as his senator and makes direct communication easier. It makes each senator responsible for his actions and makes it diffi- cult for a senator to fade into the ranks of "the team" to avoid being identified with specific actions taken. It reduces campaign costs and 'personalizes’ a campaign. It creates greater interest in the possibility of a citizen seeking a legislative seat with- out the political machine bless- ing. -52- 399 83 [600] (8) It would diminish the animosity created in the legislature against multi-senate districts because of the tendency of senators elected by one political party from a city to vote as a bloc. (9) It would tend to guarantee an individual point of view if all senators are not elected as a team. (10) It would equalize the power of people in single senate districts with the people in the broken down multi-senate districts to influence the election of only one senator. [372 F.Supp. at 391 (footnote omitted) (emphasis in original).]" It is the court's conclusion that a mayor- councilman (alderman) form of government should be drafted. The court requested, and received from the plaintiffs and defendants, the recommendation of three persons from which the court would choose a three- person committee to draft and recommend to the court 21/ such a form of government. 21/ The court has appointed this committee and has given them a target date of December 1, 1976, to make their recommendations. The next question is choice of council size and apportionment. The court could revert to the plan which was in effect when Mobile adopted the commission plan, or it could utilize Alabama Code T. 37, Sec. 426 (1940 Supp. 1973) . -53~- 600 [601] 84 The pre-1911 plan consisted of a fifteen member council with seven elected at-large and eight from single-member districts. To have this many of the council elected from at-large will tend to perpetuate the multi-member districting which the court has found unconstitutional. The present provisions of Sec. 426 allow Mobile to adopt one of several type plans. The overwhelming evidence in the case established that the type of plan provided is what is commonly known as ''weak mayor- council” type plan and is undesirable. There are also problems with three of the four plans which provide for at-large elections, the evil the court has found to exist in the present form of the city government. The court requested the plaintiffs and defendants to draft and present to the court proposed single- member districts for councilmen under a mayor-council plan. The plaintiffs presented to the court a nine single-member district plan. The defendants chose not to avail themselves of this opportunity. A nine member plan has previously been adopted in part in two of Alabama's largest cities, Birmingham and Montgomery. The next city election is scheduled for August, 1977. The court finds it would not be in the public interest to shorten the terms of present commissioners. It is therefore ORDERED, ADJUDGED, and DECREED that there shall be elected in the August, 1977 municipal election, a mayor elected at-large and nine council -54- 601 85 [602] members elected from nine single -member districts. The plaintiffs' claims for attorneys' fees and costs will be determined after a hearing on these issues. The court recognizes that the ordering of the change of the city form of government has raised serious constitutional issues. Reasonable persons can reasonably differ. The only remaining duties to. be performed in this court are the approval of the mayor-councilman plan with relation to their duties, its implementation, and the approval of a nine single - member district plan. It is the court's judgment that this decree this date is a final judgment and decree from which an appeal may be taken. However, in the event it is not a final decree, the court ex mero motu pursuant to Title 28 U.S.C. §1292(V) finds that the order herein entered involves a controlling ques- tion of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of this litigation and grants the right to either party to take an immediate appeal. It is the court's desire that if this order is appealed, such an appeal be taken promptly in order to provide the appellate courts with an opportunity to review, and, if possible, render a ruling -55- 602 [603] 86 prior to the campaign and election for the city government offices as scheduled for August, 1977. Pending further orders, the court retains jurisdiction of this action to secure compliance with its decree issued contemporaneously herewith and for such other and further relief as may be equitable and just. Done, this the 2,2 day of Jefote, ,. 1076. U. 8S. DISTRICT COURT SOU, DIST. AlA. FILED AND ENTERED THIS THE 2/27 DAY OF ocro@eER , 1976 MINUTE ENTRY NO. J Yo de WILLIAM J. O'CONNOR, BY ES. Deputy Clerk -56- 603 | | | | | | | | | | | | | | | | | | | — — — — — — — = — e e e e — _ — ee — — — — |03 87 [604] IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION WILEY L. BOLDEN, REV. R. L. HOPE, CHARLES JOHNSON, JANET 0. LeFLORE, JOHN L. LeFLORE, CHARLES MAXWELL, OSSIE B. PURIFOY, RAYMOND SCOTT, SHERMAN SMITH, OLLIE LEE TAYLOR, RODNEY O. TURNER, REV. ED WILLIAMS, SYLVESTER WILLIAMS and MRS. F. C. WILSON, Plaintiffs, CIVIL ACTION Yo : No. 75-297-P CITY OF MOBILE, ALABAMA: GARY ; A. GREENOUGH, ROBERT B. DOYLE,- JR., and LAMBERT C. MIMS, individually and in their official capacities as Mobile City Commissioners, N a r Nu N o N o ou N a at a oo Na a od ? ot ot N o od oo oF a t oF oF I Defendants. JUDGMENT The court has heretofore entered its findings of fact and conclusions of law in favor of the plain- tiffs and against the defendants, Gary A. Greenough, Robert B. Doyle, Jr., and Lambert C. Mims, individually and in their official capacities as Mobile City Commis- sioners. The court has found that the electoral structure, the multi-member at-large election of Mobile City Com- missioners, results in an unconstitutional dilution of the black plaintiffs' voting strength. It is funda- mentally unfair and invidiously discriminatory. The court has found that it is not feasible to elect city commissioners who exercise certain specific duties, to wit, 604 [60 88 one, Public Works and Services, another, Public Safety, and a third, the Department of Finance, from districts representing one-third or portions of the total popula- tion. The court has found that a mayor-council plan with nine single-member council districts would correct the unconstitutional dilution of the black plaintiffs’ vote. The court has ordered a committee of three, selected from recommendations of three persons sub- mitted by the plaintiffs and three persons by the de- fendants, to draft a "strong' mayor-councilman form of government with the mayor to be chosen at-large and the councilmen to be chosen from nine single-member districts. The court has under consideration proposed nine single-member districts and will order such a plan adopted later. x It is therefore ORDERED, ADJUDGED, and DECREED that there shall be elected in the August, 1977 municipal election, a mayor elected at-large and nine council members elected from nine single-member districts. The plaintiffs' claims for attorneys' fees and costs will be determined after a hearing on these issues. The court recognizes that the ordering of the change of the city form of government has raised serious constitutional issues. Reasonable persons can reasonably differ. The only remaining duties to be performed in this court are the approval of the mayor-councilman plan with relation to their duties, its implementation, and the approval of a nine single-member district plan. It is the court's judgment that this decree this date 605 89 is a final judgment and decree from which an appeal may be taken. However, in the event it is not a final decree, the court ex mero motu pursuant to Title 28 U.S.C. §1292(b) finds that the order herein entered involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of this litigation and grants the right to either party to take an immediate appeal. It is the court's desire that if this order is appealed, such an appeal be taken promptly in order to provide the appellate courts with an opportunity to review, and, if possible, render a ruling prior to the campaign and election for the city government offices as scheduled for August, 1977. Pending further orders, the court retains jurisdiction of this action to secure compliance with its order issued contemporaneously with this decree and for such other and further relief as may be equitable and just. Done, this the, J 2° ay of Latah, 10%. U. 8S. DISTRICT COURT SOU. DIST. ALA. FILED AND ENTERED THIS THE S272 DAY OF geras=2 .. "1976 MINUTE ENTRY NO. ZA MSTS, WILLIAM_J. O'CONNOR, CLER BY< casiid Deputy Clerk -3- 606 [606] [613] 90 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION WILEY L. BOLDEN, et al., ) Plaintiffs, ) CIVIL ACTION NO: Ve. ) 75-297 =P CITY OF MOBILE, et al., ') U.S. District coygr : Sou. DIST, ALA. Defendants. ) ILED IN CLERK'S Office NOV 19 1976 NOTICE OF APPEAL WILLIAM J. O'CONNOR CLERK Notice is hereby given that the defendants, The City of Mobile, Alabama; Gary A. Greenough, Robert B. Doyle, Jr., and Lambert C. Mims, individually and in their official capacities as Mobile City Commissioners, jointly and severally, hereby appeal to the United States Court of Appeals for the Fifth Circuit from the Opinion and Order entered in this cause on October 21, 1976 and the Judgment entered on October 22, 1976 as amended. C. B, ARENDALL, JR. 30th Floor, First National Bank Building Mobile, Alabama 36602 Attorney for Defendants OF COUNSEL: HAND, ARENDALL, BEDSOLE, GREAVES & JOHNSTON hha RT S. R. SHEPPARD “2 City Hall Mobile, Alabama 36602 Attorney for Defendants OF COUNSEL: LEGAL DEPARTMENT OF THE CITY OF MOBILE 613 108) 91 [614] “3 CERTIFICATE OF SERVICE / ¢ I do hereby certify that I have on the [ q72 day of 2 Len Sl , 1976, served a copy of the foregoing Notice of Appeal on counsel for all parties to this proceeding, by mailing a copy of the same by United States mail, properly addressed and first class postage prepaid. 614 [622] IN THE UNITED STATES DISTRICT COURT FOR WILEY L. BOLDEN, REV. R. L. HOPE, CHARLES JOHNSON, JANET O. LeFLORE, JOHN L. LeFLORE, CHARLES MAXWELL, OSSIE B. PURIFOY, RAYMOND SCOTT, SHERMAN SMITH, OLLIE LEE TAYLOR, RODNEY O. TURNER, REV. ED WILLIAMS, SYLVESTER WILLIAMS and MRS. F. C. WILSON, V. CITY OF MOBILE, ALABAMA: GARY A. GREENOUGH, and LAMBERT C. and in their as Mobile City Commissioners, On the 21st day of October, 1976, this court entered an order in this cause. 92 THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION Plaintiffs, ROBERT B. DOYLE, JR., MIMS, individually official capacities No ? No No No No N F oF No N F N F No No N F N F NS N F N F N N N S Defendants. ORDER CIVIL ACTION No. 75-297-P The order decreed that a mayor-council plan of government would be adopted by this court with nine single-member council districts. The court requested and received from the plaintiffs and defendants, three names recommended by each from whom the court selected a committee to formulate and recommend a mayor- council plan. defendants, City of Mobile, et al.; Joseph N. Langan and Arthur R. Outlaw, two former city commissioners of the City of Mobile, The court selected two names recommended by the one recommended by the plaintiffs, and /James E. The court requested the plaintiffs and defendants to Buskey, a black State Legislator. submit proposed councilmen districts made up of nine single- member districts. The plaintiffs complied. The defendants declined to file a plan. The committee appointed by the court to draft a mayor- council plan (& submitted an initial plan. The court submitted 522 293 the plan to all of the parties for their recommendations and invited all members of the Mobile County legislative delegation to make recommendations. The attorneys for the plaintiffs, and one member of the Mobile County delegation, accepted the invitation and made recommendations, many of which have been incorporated in the final plan. The defendants declined to Most of make any recommendations. /the other members of the Mobile legislative delegation expressed a general view that it created a conflict between their legislative duties and the judicial branch and did not desire to make recommendations. L/ It is hereby ORDERED, ADJUDGED, and DECREED that the mayor-council plan attached to this order as Appendix A, is hereby ADOPTED and made a part of this order the same as if set out at length herein. It is further ORDERED, ADJUDGED, and DECREED that the nine single-member council districts as submitted by the plaintiffs’ Plan "H", together with the map attached to the plan as Exhibit "A", both of which are attached to this order as Appendix B, is hereby ADOPTED and made a part of this order the same as if set out at length herein. Beginning at the regularly scheduled city elections in August 1977, and each four years thereafter, the City of Mobile shall elect nine members to a city council and a mayor. The mayor and the city council shall have such powers, duties and responsibilities as are established by the report of the committee appointed by this court on October 6, 1976, attached hereto as Appendix A, and as are established by the provisions of Ala. Code, Tit. 37, dealing with cities generally or cities having a mayor-alderman form &f government. To the extent that the report or this order conflicts with the Alabama Code, the report or order shall prevail. One member of the City Council shall be elected by and from each district. A candidate for the council and each 1/ Some declined because the City of Mobile was not in their district. - -2- 623 23] member of the council shall reside in the district represented or sought to be represented. Nothing in this order shall prevent the defendants or Legislature of Alabama from changing the powers, duties, responsibilities, or terms of office of the city council and mayor, or changing the boundaries of wards or districts, or changing the number of wards; provided however that the court retains jurisdiction for six years from the date of this order to review such changes for conformity with the principles enunciated in the order of this court entered in this case on October 21, 1976. The court is aware that numberous local acts having application to the City of Mobile are in effect. Because of the change from a commission form to a city council form, there may be conflicts between the plan herein adopted and those acts. The court specifically retains jurisdiction for a period of two years from the date the first city council members take office for all purposes for persons having standing. The retained jurisdiction of this court under the two preceding paragraphs shall be dissolved upon motion of either party when and if the Legislature of Alabama adopts (a) a comprehensive act establishing a constitutional form of government for the City of Mobile, or (b) enables the City of Mobile to act under "home rule" powers to adopt such a compre- hensive act. The defendants City of Mobile, Gary A. Greenough, Lambert C. Mims, Robert B. Doyle, Jr., and their agents, ser- vants, employees, and successors are hereby ENJOINED from failing to make the following changes with respect to the election of the elected officials of the City of Mobile: 3 95 1. Ward 33-99-1 is hereby split into east and west wards, divided by a line beginning at the south boundary of the ward on Stanton, running north to Costarides, west to Summerville, north to Andrews, and east to theward boundary. The voters in these two areas may be constituted as separate wards or the eastern area may be reassigned as part of MW-33- 99-2. 2. Ward 35-103-1 is split into eastern and western divisions by a dividing line beginning at the west boundary of the ward, running east on Davis Avenue, south on Kennedy to the ward line. The two divisions shall be constituted as separate wards. 3. Ward 35-103-3 is split into northern and southern divisions by a line beginning in the northward boundary on Broad Street, running south to Elmira, east to Dearborn Street, south to New Jersey, east to Warren Street, north to Delaware, east to Interstate 10, south to Virginia Street, and east to Mobile Bay. These two divisions may be established as separaté wards or the northern division may be redesignated as part of MW-35-103-2. 4. Ward 34-100-3 is split into southeastern and northwestern divisions by a line beginning on the east at 01d Shell Road, west to East Drive, south to North Shenandoah, west to East Cumberland, south on East Cumberland and Ridgefield Road to the ward line. The residents of the southeastern area shall be reassigned to MW-34-100-2 or made a new ward. 5. Ward 35-104-2 is divided by a line beginning at the north ward boundary on Eslava Creek, running south along Eslava Creek and Dog River to old Military Road, eastwardly to Dauphin Island Parkway, south to Rosedale Road, east to Brookley Field boundary and following said boundary eastwardly to Perimeter Road, thence east on Perimeter Road to Mobile Bay. The eastern portion of this ward may be designated a new ward or merged into MW-35-104-1. The western portion of this ward may be designated a new ward or merged into MW-35-104-3. 5 625 [626] 96 6. Nothing in this order shall prevent the defendants from changing any other ward boundaries, so long as the boundaries described in this order for the new council districts are not disturbed. 7. The defendants shall undertake the merger or redesignation of wards immediately and shall inform each voter in an area designated or merged of the new ward designation in which he or she lives. The defendant shall work with the Board of Registrars to accomplish this task by May 1, 1977. If the defendants encounter problems with the Board of Regis- trars, they shall forthwith petition this court for an appro- priate order, including making the Board of Registrars a party defendant. 8. The following districts for the election of members of the City Council of Mobile are hereby created and designated: - District 1 shall consist of MW-33-98-1 and the western portion of MW-33-99-1. - District 2 shall consist of the eastern part of MW-33-99-1, all of MW-33-99-2, MW-33-99-3, and MW-34-102-2, and the western part of MW-35-103-1. - District 3 shall consist of MW-33-99-4, the eastern part of MW-35-103-1, MW-35-103-2, and the northern part of MW-35-103-3. - District 4 shall consist of the southern part of MW-35-103-3, MW-34-102-3, MW-34-102-6, and MW-34-102-7. - District 5 shall consist of MW-35-103-4, MW-35-104-1, and the eastern part of MW-35-104-2. - District 6 shall consist of MW-35-104-3, MW-35-104-4, MW-35-104-5, and the western part of MW-35-104-2. - District 7 shall consist of MW-34-100-1, MW-34-100-2, MW-34-101-4, MW-34-101-5, MW-34-101-6, and the southeastern part of MW-34-100-3. AL 97 [627] - District 8 shall consist of MW-34-102-5, MW-34-102-1, MW-34-101-2, MW-34-101-3. - District 9 shall consist of MW-34-101-1, MW-34-101-1, MW-34-100-4, and the northwestern part of MW-34-100-3. 9. The defendants shall forthwith take all steps necessary to prepare for the election of the city council and mayor. The court reserves a decision upon the plaintiffs’ claim for attorneys' fees and out-of-pocket expenses. Done, this the PP Gay of March, 1977. TNT az UNITED STATES DISTRICT JUDGE U. S. DISTRICT COURT SOU. DIST. AULA. FILED AND ENTERED THIS THE H™ pay OF MARCH 19.77, MINUTE ENTRY NO. LY ; WILLIAM J. O'CONNOR, CLERK BY LA el red bial L000, DEPUTY CLERK 627 [628] 98 A PLAN FOR THE MAYOR - COUNCIL FORM OF GOVERNMENT FOR THE CITY OF MOBILE CHAPTER I ARTICLE I Section 1. First election. Upon this Chapter becoming applicable to the City of Mobile, the (MAYOR OF SAID CITY) shall call an election to be held on the third Tuesday in August 1977 for the election by the qualified electors of said city of nine councilmen and a mayor and the expense thereof shall be paid by said city. Section 2. Election of first council and term of office. Council candidates shall qualify as provided in Section 10 hereof and shall meet the eligibility requirement set forth in Sections 11 and 12 hereof. Each voter in the election may cast one vote for a candi- date from his district, and one vote for a candidate for mayor. Any district councilman candidate receiv ing a majority of the total votes cast by the electors of the district in which he is a candidate shall be elected as a district councilman in his dis- trict. If, in any district, no council candidate has received a majority, then another election shall be held upon the same day of the week three weeks thereafter to be called and held in the same mode and manner and under the same rules and regulations as the first election. In the second election there shall be two candidates for each place upon the council to be filled in such second election; and these candidates shall be the two candidates in each such district who received the highest number of votes but who were not elected at the first election. The candidate for the council in each district receiving a majority of the votes cast in his district in the second election shall be elected, so that in the first and second elections a total of nine coun- cilmen shall be elected. The councilmen so elected shall take office on the first Monday in October following the election. Sertnahy A oF [629] Each councilman shall hold office for four years, but shall serve until his successor shall have qualified. A councilman may suc- ceed himself in office. Section 3. Election of first mayor and term of office. Candidates for election as the first mayor hereunder shall qualify as pro- vided in Section 28 hereof and shall meet the eligibility require- ment in Section 29 of this Chapter. The candidate for mayor re- ceiving the largest number of votes for the office at the first election shall be elected thereto, provided such candidate receives a majority of all votes cast for such office. If at the first elec- tion no candidate receives a majority of the votes cast for the office of mayor at such election, then another election shall be held upon the same day of the week three weeks thereafter to be called and held in the same mode and manner and under the same rules and regulations. In the second election there shall be two candidates for the office of mayor; and these candidates shall be the two who received the highest number of votes for said office at the first election, and the candidate receiving a majority vote in said second election shall be elected mayor. Section 4. Conduct of election. The election shall be held and conducted in accordance with the provisions of Chapter 3 A of Title 37, Alabama Code of 1940, as amended, except as herein otherwise specifically provided. Section 5. The Council. The Councilmen provided for in this article shall be known collectively as the Council of the City of Mobile and shall have the powers and duties hereinafter provided. The councilmen first elected shall qualify and take office in the manner hereinafter prescribed on the first Monday in October, following the date the election of all nine councilmen is com- pleted, and thereupon such city shall at that time and thereby be and become organized under the Mayor - Council form of govern- =2< [630] 100 ment provided under this chapter, and shall thereafter be governed by the provisions of this chapter. ARTICLE II LEGAL STATUS: FORM OF GOVERNMENT: POWERS Section 6. Legal Status. When this Mayor - Council form of government becomes applicable to the City of Mobile it shall continue its existence as a body corporate under the name of "City of Mobile". The word "city" as hereinafter used shall mean and refer to City of Mobile. The City shall continue as a municipal corporation, within the corporate limits as now established and as may hereafter be fixed in the manner pre- scribed by law, subject to all duties and obligations then pertaining to or incumbent upon it as a municipal corporation and shall continue to enjoy all the rights, immunities, powers and franchises then enjoyed by it, as well as those that may thereafter or hereinafter be granted to it. Section 7. Form of government. The municipal government of said city proceeding under this chapter shall be known as the "Mayor - Council form of government'. Pursuant to the provi- sions and limitations of this chapter and subject to the limita- tions imposed by the Constitution of Alabama and its laws, all powers of the city shall be vested in the council elected as herein provided and hereinafter referred to as 'the Council", which shall enact ordinances, adopt budgets and determine policies. All powers of the city shall be exercised in the manner prescribed by this chapter, or if the manner be not pre- scribed by this chapter, then in such manner as may be prescribed by law or by ordinance. 639 101 [631] Section 8. Powers of City. The City shall have all the powers granted to municipal corporations and to cities by the Constitution and laws of this State together with all the implied powers necessary to carry into execution all the powers granted. ARTICLE III THE COUNCIL Section 9. Number, election, term. The council shall consist | of nine members, who shall be known and elected as district councilmen. The nine district councilmen shall be elected from | districts which shall be, as near as practicable, of equal pop- ulation according to the last Federal Decennial Census. The | regular election shall be held on the third Tuesday in August | preceding the expiration of the term of office of the members of the council, the expense thereof to be paid by said city, for the election by the qualified voters of such city of nine councilmen. Such election shall be held and conducted in Alabama Code of 1940, as amended, except as otherwise provided \ | accordance with the provisions of Chapter 3 A of Title 37, | by this plan, and Section 2 hereof shall apply to all subse- quent elections. Section 10. Statement of candidacy. Any person desiring to become a candidate in any election for the office of district | councilman may become such candidate by filing in the office of the City Clerk, a statement in writing of such candidacy \ and an affidavit taken and certified by a notary public that such person is duly qualified to hold the office for which he desires to be a candidate. Such statement shall be filed not less than 42 days and not more than 82 days immediately pre- ceding the day set for such election and shall be in substantially £31 [632] 102 the following form: 'State of Alabama, Mobile County. I, the undersigned, being first duly sworn, depose and say that 1 am a citizen of the City of Mobile, in said State and County, and reside at in said City of Mobile, that I desire to become a candidate for the office of district couweilmon for the.’ distyict, in said city at the election for said office to be held on the day of August next and that [ am duly qualified to hold said office if elected thereto ami I hereby request that my name be printed upon the official bhillot at said election. Signed ; _ 3 Subscribed and sworn to before me by said _ aoe on this day. of © nd _, and filed in this office for record mm said day, : City Clerk". Said statement shall he accompanied by a quali- fying fee in the amount of $50.00 which fee shall be paid into the. general fund of the City. A verso may alse become a candidate for the office of district councilman by filing a verified pauper's oath with the Citv Clerk, or by filing a verified petition containing an endorsement of candidacy by the signatures and addresses of 500 pcrsons, each of whom is a registered voter residing in the city and within the dis- trict for which the individual intends to be a candidate for election to office, provided that no such signature may be obtained more than twelve (12) months immediately preceding the deadline for filing statements of candidacy. No primary election shall be held for the nomination of candidates for the office of councilman and candidates shall be nominated only as hereinabove provided. Section 11. Qualification. Every person who shall be elected or appointed to the office of member of council, shall, on or before the first Monday of October following his election or -5. 632 103 1633] before the Tuesday following the date of his appointment qualify by making oath that he is eligible for said office and will execute the duties of same according to the best of his knowledge and ability. Said oath may be administered by any person authorized to administer an oath under the laws of the State of Alabama and filed in the office of the City Clerk. Section 12. Eligibility. Councilmen shall be qualified electors of the City, shall be residents of the district which they represent, and shall reside in the district during their term of office. Section 13. Compensation. Each couneilman shall receive as compensation for his services as such the sum of Fifty ($50.00) Dollars for each meeting of the council attended, provided that the total of such compensation shall not exceed the sum of Thirty-six Hundred ($3,600.00) Dollars per annum. Such salary shall be payable in monthly installments at the end of each month. The council may fix a separate and additional stipend for the President of the Council, not to exceed One Hundred ($100.00) Dollars per month. Section 14. Presiding Officer. The council shall elect an officer of the city who shall have the title of President of the Council and shall preside at meetings of the council. The council shall also elect a President pro tem, who shall act as President of the Council during the absence or disability of the President. The terms of office of the President and the President pro tem shall be for a term of two years and they may succeed themselves. If a vacancy shall occur in the office of the President of the Council, the council shall elect a successor for the completion of the unexpired term. Both the President of the Council and the President pro tem shall be elected from among the councilmen. 6 E S E R A T , a m [634] 104 Section 15. Powers. All powers of the city, including all powers vested in it by this chapter, by the laws general and local, of the State, and by Title 62 of the Code of Alabama of 1940, as amended, and the determination of all matters of policy, shall be vested in the council. Without limitation of the foregoing, the council shall have power to: (a) Confirm or deny confirmation to the Mayor's appointments of the members of all boards, commissions or other bodies authorized hereunder or by law. This provision does not apply to officers and employees in the administrative service of the city. (b) Succeed to all the powers, rights and privileges conferred upon the former governing body of the city by statutes in effect at the time this chapter becomes applicable and not in conflict herewith. Section 16. Council not to interfere in appointments or removals. Neither the council nor any of its members shall direct or re- quest the appointment of any person to, or his removal from, office or position by the mayor or by any of his subordinates, or in any manner take part in the appoinment or removal of officers and employees in the administrative service of the city except as otherwise provided herein. Except for the purpose of inquiry, the council and its members shall deal with the administrative service solely through the mayor, but councilmen may report complaints and make inquiries and requests. The council nor any member thereof shall give orders to any sub- ordinates of the mayor, either publicly or privately, but may report complaints and make requests. Such requests will not have any legal or binding force and effect. 105 [635] | Section 17. Vacancies in council. Vacancies in the council ! shall be filled by the council at the next regular or any subsequent | meeting of the council, and if the term of office in which the vacancy occurs has less than one year before the expiration of the same, the person elected by the council shall hold office until the next regular city council election. If the term of office in which a vacancy occurs has more than one year to run before the expiration of the same then a special election shall be held to fill said unexpired term. If any general or special election is to be held in the city not more than 120 nor less than 60 days following the occurrence of a vacancy then the election to fill such vacancy on the council shall be held in conjunction with such general or special election, otherwise a special election shall be called by the Mayor on a date set by him, and shall be held in accordance with the provisions of this chapter and the general laws of the State of Alabama, applicable to such city. Section 18. Creation of new departments or offices; change of duties. The council by ordinance may create, change and abolish offices, departments, or agencies, other than the offices, departments and agencies established by this chapter. The council by ordinance may assign additional functions or duties to offices, departments or agencies established by this chapter, but may not discontinue or assign to any other office, department or agency any function or duty assigned by this chapter to a particular office, department or agency. Section 19. City Clerk. The City Clerk of the city serving under the merit system at the time this chapter becomes applicable to the city shall continue to hold office as the City Clerk under the Mayor - Council form of government of such city, and his successor shall be selected and hold office subject to the provi- [636] 106 sions of such civil service or merit system. The council, with the concurrence of the mayor shall be the appointing authority in filling any vacancy in the office of city clerk. The City Clerk shall give notice of special or called meetings of the council, shall keep the journal of its proceedings, shall authenticate by his signature and record in full in a book kept for such purpose all ordinances and resolutions and shall perform such other duties as shall be required by this chapter or by ordi- nance, and such duties as are imposed by general law of Alabama upon city clerks and as to which other provisions are not made in this chapter. Section 20. Induction of council into office; meetings of council. The first meeting of each newly elected council for induction into office, shall be held at ten o'clock in the morning on the first Monday in October next following its election, after which the council shall meet regularly at such times as may be prescribed by its rules, but not less frequently than once a week. All meetings of the council shall be open to the public. Section 21. Council to be judge of qualifications of its members. The council shall be the judge of the election and qualifications of its members and for such purpose shall have power to subpoena witnesses and require the production of records, but the deci- sion of the council in any such case shall be subject to review by the courts. Section 22. Rules of procedure; journal. The council shall determine its own rules and order of business. It shall keep a journal of its proceedings and the journal shall be open to public inspection. Section 23. Meetings, passage of ordinances, etc. The council shall hold regular public meetings on Tuesday of each and every 107 [637] week at a regular hour to be fixed by the order of said council from time to time and publicly announced; it may hold such ad- journed, called, special or other meetings as the business of the city may require. The president of the council, when present, shall preside at all meetings of said council. Five members of the council shall constitute a quorum for the transaction of any and every power conferred upon said council, and the affirma- tive vote of at least four members of the council, provided such four constitute a majority of those voting, shall be sufficient for the passage of any resolution, by-law or ordinance, or the transaction of any business of any sort by the said council or the exercise of any of the powers conferred upon it by the terms of this chapter or by law, or which may hereafter be con- ferred upon it. No resolution, by-law or ordinance granting any franchise, appropriating any money for any purpose, pro- viding for any public improvements, any regulation concerning the public health, or of any other general or permanent nature, except the proclamation of quarantine, shall be enacted except at a regular public meeting of said council or an adjournment thereof. Every ordinance introduced at any and every such meeting shall be in writing and read before any vote thereon shall be taken, and the yeas and nays thereon shall be recorded; provided that if the vote of all councilmen present be unanimous, it may be so stated in the journal without recording the yeas and nays. A record of the proceedings of every meeting of the council shall be kept, and every resolution or ordinance passed by the council must be recorded and the record of the proceedings of the meeting shall, when approved by the council, be signed by the president of the council and the city clerk. Such records shall be kept available for inspection by all citizens of such city at all reasonable times. No ordinance of permanent opera- tion shall be passed at the meeting at which it was introduced -10- | | [638] 108 except by unanimous consent of all members of the council present, and such unanimous consent shall be shown by the yea and nay votes entered upon the minutes of said meeting; provided, however, that if all members of the council present vote for the passage of the ordinance and their names are so entered of record as voting in favor thereof, it shall be construed as giving unanimous consent to the action upon such ordinance at the meeting at which it is introduced. All ordinances or resolu- tions, after having been passed by the council, shall by the clerk be transmitted within forty-eight (48) hours after their passage to the mayor for his consideration, who, if he shall . approve thereof, shall sign and return the same to the clerk, who shall publish them, if publication thereof is required, and such ordinances and resolutions shall thereupon become effective and have the force of law. Delivery to the office of the mayor shall constitute delivery to the mayor. An ordinance or reso- lution may be recalled from the mayor at any time before it has become a law, or has been acted on by him, by a resolution adopted by a majority of the members elected to the council, in regular or special session. If the mayor shall disapprove of any ordinance or resolution transmitted to him as aforesaid, he shall, within ten (10) days of the time of its passage by the council, return the same to the clerk with his objections in writing, and the clerk shall make report thereof to the next regular meeting of the city council; and if two-thirds of the members elected to the said council shall at said meeting adhere to said ordinance or resolution, not withstanding said objections, said vote being taken by yeas and nays and spread upon the minutes, then, and not otherwise, said ordinance or resolution shall after publication thereof, if publication is required, have the force of law. If publication of said ordinance or resolution is not required, it shall take effect upon its passage over such veto. The failure of the mayor to return to the city =11~ 638 109 [639] clerk an ordinance or resolution with his veto within ten (10) days after its passage by the council shall operate and have the same effect as an approval of the same, and the city clerk, if publication is required, shall publish the same as is herein provided for the publication of laws and ordinances of said city. And if no publication is required, the ordinance or resolution shall become effective upon the expiration of said ten (10) days. These provisions are subject to the publication of ordinances as set out in the Alabama Code of 1940 (Recomp. 1958), Section 462, as amended Title 37. Anything in this section to the contrary notwithstanding, the mayor shall not have the power of veto over any action of the council relating to an investigation as provided for in Section 87. Section 24. Granting of franchises. No resolution or ordinance, granting to any person, firm or corporation any franchise, lease or right to use the streets, public highways, thoroughfares, or public way of said city, either in, under, upon, along, through, or over same shall take effect and be enforced until thirty days after the final enactment of same by the council and publication of said resolution or ordinance in full once a week for three consecutive weeks in some daily newspaper pub- lished in said city or if no such newspaper exists, then by posting in three public notices, which publication shall be made at the expense of the persons, firm or corporation apply- ing for said grant. Pending the passage of any such resolution or ordinance or during the time intervening between its final passage, and the expiration of the thirty days during which publication shall be made as above provided, the legally qualified voters of said city may, by written petition or petitions addressed to said council, object to such grant, and if during such period such written petition or petitions signed by at 1 629 [640] 110 least ten percent (10%) of the legally qualified voters of the city shall be filed with said council, said council shall forth- with order an election, which shall be conducted by the election commission of the city or other body or official charged with the duty of conducting elections therein, at which election the legally qualified voters of said city shall vote for or against the proposed grant as set forth in the said resolution or ordinance. In the call for said election, the said resolution or ordinance making such grant shall be published at length and in full at the expense of the city in a newspaper published in said city by one publication. If a majority of the votes cast at such election shall be against the passage of said resolution or ordinance, then and in those events, said resolution or ordinance shall not become effective nor shall it confer any rights, powers or privileges of any kind, otherwise, said resolution or ordinance and said grant shall thereupon become effective as fully and to the same extent as if said election has not been called or held. If, as the result of said election, said resolution or ordinance shall not become effective, then it shall be the duty of said council, after the results of said election shall be determined, to pass a resolution or ordinance to that effect. No grant of any franchise or lease or right of user, or any other right, in, under, upon, along, through, or over the streets, public highways, thoroughfares or public ways of any such city, shall be made or given nor shall any such rights of any kind whatever be conferred upon any person, firm or corporation, except by resolution or ordinance duly passed by the council at some regular or adjourned regular meeting and published as above provided for in this Section; nor shall any extension or enlargement of any such rights or powers previously granted be made or given except in the manner and subject to all the conditions herein provided for as to the -13~ 111 [641] original grant of same. It is expressly provided, however, that the provisions of this Section shall not apply to the grant of side track or switching privileges to any railroad for the pur- pose of reaching and affording railway connections, and switch privileges to the owners or users of any industrial plant, store or warehouse; provided further, that said track or switch shall not extend for a greater distance than one thousand, three hundred twenty feet. Section 25. Codification authorized. The council may provide at any time it may deem proper, for the revision and codification of its ordinances, by-laws, and permanent resolutions, or for the adoption of a code or codes by ordinance. Such code or codes and the revisions or amendments thereof may relate to the whole system of city by-laws, ordinances and permanent resolutions, or may relate to that portion of such ordinances, by-laws and per- manent resolutions which relate to, affect or purport to govern any particular subject or subjects or subdivisions of municipal legislation. The council shall have full power and authority to prescribe the manner in which said code or codes, revisions, or amendments thereto, shall be made public, whether by proclama- tion of any officer or officers of said city by posting or by publication, one or all, but it shall not be necessary unless so prescribed by the council for such code or codes, revisions or amendments thereto, to be published in a newspaper or news- papers. Nor shall it be necessary that such code or codes, revisions or amendments thereto, be spread at length upon the minutes, but they will be noted in the minutes. The council may prescribe that such code or codes, revisions or amendments thereto may be certified by and filed with the city clerk, or other corresponding officer, in lieu of spreading at length the same on the minutes; and the council may prescribe the manner in which copies of such code or codes, revisions, or 14 [642] 112 amendments thereto, may be officially certified for use by the inhabitants or by the courts. The council may adopt and provide for the maintenance in a designated office of the city of a comprehensive zone map of the city open for in- spection by the public at all reasonable times, and may make such zone map a part of any ordinance by reference thereto in such ordinance and without publication of such zone map in any newspaper. Such zone map need not be in one piece but may for convenience be in sections. A zone map of terri- tory newly added to the city shall be treated as a compre- hensive zone map of the city for purposes of application of the provisions of the next preceding sentence. These provisions are subject to the publication of ordinances, etc., as set out in the Alabama Code of 1940 (Recomp. 1958), Sec- tion 462, as amended, Title 37. Section 26. Examination of books and publication of accounts. The council shall each month print ir pamphlet form a de- tailed statement of all receipts and expenses of the city, and a summary of its proceedings during the preceding month, and furnish printed copies thereof to the daily newspapers of the city, other members of the news media of the city, and to per- sons who apply therefor. At the end of each year, the council shall cause a full and complete examination of all the books and accounts of the city to be made by a certified public accountant, or by the state department of examiner of public accounts, and shall cause the result of such examination to be published in the manner above provided for publication of statements of monthly expenditures. Such examination shall not be made more than two years in succession by the same accountant. <15- 642 IE fe d Ww aN In N ww ARTICLE IV MAYOR Section 27. The mayor, election, term, qualification. The first mayor shall be elected at the same election at which the council- men are elected under the provisions of Sections 1 and 3 of this chapter. The first mayor shall qualify and take office in the manner hereinafter prescribed. The mayor shall take office on the first Monday in October in the same year of election, and shall serve for four years. The regular election for mayor shall be held on the third Tuesday in August of the year during which the term of the first mayor elected hereunder terminates and every four years thereafter. The mayor elected at such regular election, shall, on or before the first Monday of October following his election qualify by making oath that he is eligible for said office and will execute the duties of same according to the best of his knowledge and ability. Said oath may be administered by any person authorized to administer an oath under the laws of Alabama. At any election for mayor the candidate receiving the highest number of votes for the office shall be elected thereto, provided such candidate received a majority of all votes cast for such office. If at the first election a majority is not received by any candidate for the office of mayor, then a second election shall be held on the third Tuesday thereafter in the same mode and manner and under the same rules and regulations provided in Sections 1 and 3 hereof with respect to election of the first mayor. Section 28. Statement of candidacy. Any person desiring to be- come a candidate at any election for the office of mayor may become such candidate by filing in the office of the City Clerk a statement in writing of such candidacy, accompanied by an ~16~ 643 [644] 114 affidavit taken and certified by a notary public that such person is duly qualified to hold the office for which he desires to be a candidate. Such statement shall be filed not less than 42 days and not more than 82 days immediately preceding the day set for such election and shall be in substantially the following form: 'State of Alabama, Mobile County, I, the undersigned, being first duly sworn, depose and say that I am a citizen of the City of Mobile, in said State and County, reside at in said City of Mobile, that I desire to become a candidate for the office of mayor in said city at the election of said office to be held on the day of August next and that I am duly qualified to hold said office if elected thereto and I hereby request that my name be printed upon _the official ballot at said election. Signed Subscribed and sworn to before me by said on this day of > 19 , and filed in this office for record on said day, City Clerk." Said statement shall be accompanied by a quali- fying fee in the amount of $300.00, which qualifying fee shall be paid into the general fund of the city, or in lieu thereof a person may also become a candidate for the office of mayor by filing a verified pauper's oath with the City Clerk, or by filing a verified petition containing an endorsement of candidacy by the signatures and addresses of 2,000 persons, each of whom is a registered voter residing in the city, provided that no such signature may be obtained more than twelve (12) months immediately preceding the deadline for filing statement of candidacy. Section 29. Eligibility. The mayor shall be a qualified elector, and a resident of the city, and shall reside within the city during his term of office. Section 30. Compensation. The mayor shall receive an annual salary in the sum of Thirty Thousand ($30,000.00) Dollars, payable =\7- 115 [645] in monthly installments at the end of each month, said install- ments to be paid at the same rate for any portion of the month during which the mayor shall hold office at the rate thus provided. Section 31. Vacancy in office of mayor. Whenever any vacancy in the office of mayor shall occur by reason of death, resignation, removal or any other cause, the president of the council shall assume the duties of the office of mayor effective on the date such vacancy occurs and shall serve as acting mayor until a new mayor is elected and qualified as hereinafter provided. The acting mayor shall receive no compensation, expenses or allow- ances as a councilman while sot ing as mayor, but he will receive the same rate of pay and allowance¥ provided for the mayor whose vacated office he fills, and the compensation received for days of service as acting mayor shall not be counted in determining the maximum annual per diem compensation permitted council members. While the president of the council is serving as acting mayor he may attend council meetings but not vote on any matters before the council. The council shall within five (5) days of the occurrence of the vacancy in the office of the mayor call a special election to fill such vacancy, such election to be held on a Tuesday not less than forty-five (45) days and not more than sixty (60) days from the occurrence of such vacancy; provided; however, if a regular or special election is scheduled or required to be held within one hundred twenty (120) days after the occur- rence of such vacancy but more than fifty (50) days after such occurrence, then the vacancy in the office of mayor will be filled at such regular or special election. Notice of such election shall be given at the expense of the city by one publication not less than forty-five (45) days in advance of the same in one or more newspapers published in such city. The method, procedure and re- quirements of qualifying, voting upon and determining the suc- [646] 116 cessful candidate shall be the same as is provided herein rela- tive to the election of the mayor at regular elections, except that statements of candidacy must be filed not less than thirty (30) days immediately preceding the date set for such election. The successor to the mayor chosen at any such elec- tion shall qualify for office as soon as practical thereafter, and shall be clothed with and Sa the duties, responsibilities and powers of such office immediately upon such qualification, and shall hold office for the unexpired term of his predecessor and until his successor is elected and qualified. Section 32. The mayor; powers and duties. The mayor shall be the head of the administrative branch of the city government. He may attend council meetings but not vote in its proceedings and he shall have the power and duties herein conferred. He shall be responsible for the proper administration of all af- fairs of the city, and subject to the provisions of any civil service or merit system law applicable to such city and except as otherwise provided herein, he shall have power and shall be required to: (1) Enforce all laws and ordinances. (2) Appoint and, when necessary for the good of the service, remove all officers and employees of the city except as otherwise provided by this chapter, except as he may authorize the head of a department or office to appoint and remove sub- ordinates in such department or office, all subject to any Merit System provision in effect at such time. (3) Appoint all members of boards, commissions or other bodies authorized herein or by law, subject to the con- firmation by the council. When any appointment is sent to the council for confirmation and the council fails to either confirm or deny confirmation of the appointment for a period of thirty days the appointment shall be deemed confirmed without action by -19- 117 [647] the council. This provision for appointment of members of boards, commissions or other bodies authorized herein or by law shall supersede any different provisions for appointment of such mem- bers contained in any statute or ordinance in effect at the time this chapter becomes effective, and shall include power to re- move any member of the board, commission or body to the same extent as might be done by the preceding governing body of the city, and to appoint another in his stead. And wherever any statute provides that the chief executive officer of the city is designated to act in any capacity ex-officio, the mayor shall act. : (4) Exercise administrative supervision and control over all departments created by this chapter or by law or hereafter created by the council, except those otherwise given independent status under this chapter. (5) Keep the council fully advised as to the financial conditions and needs of the city; prepare and submit the budget annually to the council and be responsible for its administration after its adoption; prepare and submit, as of the end of the fiscal year, a complete report on the financial and administrative activities of the city for such year. (6) Recommend to the council such actions as he may deem desirable. (7) Prepare and submit to the council such reports as may be required of him. (8) Perform such other duties as may be prescribed by this chapter. (9) Fix the salaries or compensation of all officers and employees of the city who are appointable by him, subject, however, to the provisions of any civil service or merit law applicable to the city. 20 [648] 118 Section 33. Administrative departments. There shall be a depart- ment of finance and such other departments as may be established by ordinance upon the recommendation of the mayor. Section 34. Directors of departments. At the head of each depart- ment there shall be a director, who shall be an officer of the city and shall have supervision and control of the department subject to the mayor. Two or more departments may be headed by the same individual, the Heyl may head one or more departments, and directors of departments may also serve as chiefs of divisions. Section 35. Departmental divisions. The work of each department may be distributed among such divisions thereof as may be es- tablished by ordinance upon the recommendation of the mayor. Pending the passage of an ordinance or ordinances distributing the work of departments under the supervision and control of the mayor among specific divisions thereof, the mayor may establish | temporary divisions. Section 36. Chief Administrative Assistant to the Mayor. The | mayor is hereby authorized to employ for and on behalf of the city an employee to be known as Chief Administrative Assistant | to the Mayor, to serve at the pleasure of the mayor, to define | the duties of said employee, and to fix compensation at a salary | not in excess of the highest non-elected employee of the municipal- | ity. The Chief Administrative Assistant to the mayor shall per- form such administrative and supervisory duties related to the office of the mayor as the mayor may delegate; shall keep in- | formed of all developments within the various departments of the city government and may analyze and recommend procedures and | administrative changes for such departments; shall assist the i mayor in coordinating the preparation of the executive budget; | shall review personnel action requests prior to submission to | -21- 119 [649] the mayor; shall make feasibility studies of major proposals eminating from the city council and various other duties as assigned by the mayor. The Chief Administrative Assistant to the Mayor as employed hereunder must reside within the city during the term of employment. Said Chief Administrative Assistant to the Mayor shall not be subject to the provisions of any merit system. This section shall not limit the authority of said mayor to appoint other employees of said city under civil service or otherwise authorized by any law. Section 37. Executive Secretary. The mayor is hereby authorized to employ for and on behalf of the city an employee to be known as Executive Secretary to serve at.the pleasure of the mayor, to define the duties of said employee, and to fix compensation at a salary not in excess of the highest paid non-elected employee of the municipality. The duties of the Executive Secretary shall be the coordinating and planning of the mayor's public appearances, appointments, and press relations, as well as to assist the mayor in making feasibility studies of major policy proposals eminating from the city council, monitoring the activities of the city council and various other duties as the mayor may delegate. The Executive Secretary employed hereunder must re- side within the city during the term of employment. Said Executive Secretary shall not be subject to the provisions of the merit system. This section shall not limit the authority of said mayor to appoint other employees of said city under civil service or otherwise where authorized by any other law. on [650] 120 ARTICLE V BUDGET Section 38. Fiscal year. The fiscal year of the city govern- ment shall begin on the first day of October and shall end on the last day of September of each calendar year. Such fiscal year shall also constitute the budget and accounting year. As used in this chapter, the term "budget year" shall mean the fiscal year for which any particular budget is adopted and in which it is administered. Section 39. Submission of budgets. On a day to be fixed by the council but in no case later than the 20th day of August in each year, the mayor shall submit to the council: (a) A separate current revenue and expense budget for the general operation of the city government, to be known as the "general fund budget"; (b) A budget for each public utility owned and operated by such city; | (c) A capital budget; and (d) A budget message. When submitting the budgets to the council, the mayor shall submit his recommendation of new sources of revenue or manner of increasing existing sources of revenue, sufficient to balance the budgets, if such additional revenue is necessary to accomplish that purpose. Section 40. Preparation of budgets. It shall be the duty of the head of each department, and each other office or agency supported in whole or in part by the city, to file with the Director of Finance, at such time as the mayor may prescribe, estimates of revenue and expenditure for that department, office or agency for the ensuing fiscal year. Such estimates shall be submitted =23- 650 121 [651] ‘on the forms furnished by the Director of Finance and it shall be the duty of the head of each department, office or agency, to supply all the information which the Director of Finance may require to be submitted thereon. The Director of Finance shall assemble and compile these estimates and supply such additional information relating to the financial transactions of the city as may be required by the mayor in the preparation of the bud- gets. The mayor shall hold such hearings as he may deem ad- visable and with the assistance of the Director of Finance shall review the estimates and other data pertinent to the preparation of the budgets and make such revisions in such estimates as he may deem proper, subject to the laws of the State of Alabama and any municipal ordinance relating to obligatory expenditures for any purpose. Section 41. Scope of General Fund Budget. The general fund budget shall include only the net amounts estimated to be re- ceived from or to be appropriated to each public utility. The general fund budget shall be prepared in accordance with ac- cepted principles of municipal accounting and budgetary procedures and techniques, and shall show: (a) such portion of the general fund cash surplus as it is estimated will exist, at the end of the current fiscal year, and is proposed to be used for meeting expenditures in the general fund budget for the ensuing year; (b) an estimate of the receipts from current ad valorem taxes on real estate and tangible personal property during the ensuing fiscal year, assuming that the percentage of the levy collected be no greater than the average percentage of the levy collected in the last three completed tax years. (¢) an estimate of receipts from all other sources of revenue, provided that the estimated receipts from each such “2h [652] 122 source shall not exceed the percentage of estimated revenue in the current fiscal year from the same source, over the amount of the revenue received from the same source in the last completed fiscal year, unless a law or ordinance under which revenue from any source is derived, has been amended or a new source of revenue has been provided by law or ordinance, in the course of the current year, in which case the estimated receipts from that source may be fixed by the mayor. If additional revenue is to be derived from the State, the amount fixed by the mayor shall not exceed the amount which the proper State official shall certify in writing to be the reasonable expectation of receipts from such source; @ (d) a statement to be furnished by the Director of Finance of the debt service requirements for the ensuing year; | (e) an estimate of the general fund cash deficit, if any, at the end of the current fiscal year and of any other obligations required by law to be budgeted for the ensuing fiscal year; (f) an estimate of expenditures and appropriations for all other purposes to be met from the general fund in the ensuing fiscal year. All the estimates shall be in detail show- ing receipts by sources and expenditures by operating units, character and object, so arranged as to show receipts and expenditures as estimated for the current fiscal year and actual receipts and expenditures for the last fiscal year, in | comparison with estimated receipts and recommended expenditures il for the ensuing fiscal year. Section 42. A balanced budget. In no event shall the expenditures recommended by the mayor in the general fund budget exceed ninety- eight (987%) percent of the receipts estimated, taking into account i 652 123 [653] the estimated cash surplus or deficit at the end of the current fiscal year, as provided in the preceding section, unless the mayor shall recommend an increase in or levy of new or increased taxes or licenses within the power of the city to levy and collect in the ensuing fiscal year, the receipts from which, estimated on the basis of the average experience with the same or similar taxes during the three full tax years last past, will make up the dif- ference. If estimated receipts exceed estimated expenditures, the mayor may recommend revisions in the tax and license ordi- nances of the city in order to bring the general fund budget into balance. The same balanced budget restrictions shall apply in the adoption of any public utility budget. Section 43. The budget message. The budget message shall con- tain the recommendations of the mayor concerning the fiscal policy of the city, a description of the important features of the budget plan, an explanation of all salient changes in each budget sub- mitted, as to estimated receipts and recommended expenditures as compared with the current fiscal year and the last preceding fiscal year, and a summary of the proposed budgets showing com- parisons similar to those required by Section 41 above. Section 44. Availability of budgets for Inspection and Publica- tion of the Budget Message. The mayor shall cause the budget message to be printed, mimeographed or otherwise reproduced for general distribution at the time of its submission to the council and sufficient copies of the proposed general fund, public utility and capital budgets to be made, to supply copies to each member of the council and each daily newspaper of general circulation published in the city and all other members of the news media in the city, and two copies to be deposited in the office of the city clerk where they shall be open to public in- spection during regular business hours. -26~ | i [654] 124 Section 45. Publication of Notice of Public Hearing. At the meeting of the council at which the budget and budget message are submitted, the council shall determine the place and time of the public hearing on the budget, and shall cause to be published a notice of the place and time, not less than seven days after the date of publication, at which the council will hold a public hearing. Publication shall be made at least once in a daily newspaper published and of general circulation in the city. At the time and place so advertised, or at any time and place to which such public hearing shall from time to time be adjourned, the council shall hold a public hearing on the budget as submitted, at which any citizen of the city shall be given an opportunity to be heard, for or against the estimates of any item thereof. Section 46. Action by the council on the general fund budget. After the conclusion of the public hearing the council may in- sert new items of expenditures or may increase, decrease or strike out items of expenditure in the general fund budget, ex- cept that no item of expenditure for debt service, or any other item required to be included by this chapter or other provision of law, shall be reduced or stricken out. The council shall not alter the estimates of receipts contained in the said budget except to correct omissions or mathematical errors and it shall not cause the total of expenditures as recommended by the mayor to be increased without a public hearing on such increase, which shall be held not less than three days after notice thereof by publication in a newspaper of general circulation published in the city. The council shall in no event adopt a general fund budget in which the total of expenditures exceeds nine-eight percent of the receipts and available surplus, estimated as pro- vided in Section 41 of this chapter unless at the same time it ~27~ 654 125 [655] adopts measures for providing additional revenue in the ensuing fiscal year, estimated as provided in Sections 39 and 42 of this chapter, sufficient to make up the difference. Section 47. Adoption of General Fund Budget. Not later than the 20th day of September of the current fiscal year, the council by a majority vote shall adopt the general fund budget, and such ordinance providing for additional revenue as may be necessary to put’ the budget in balance, including a 2% reserve. If for any reason the council fails to adopt the general fund budget on or before such day, the general fund budget of the current fiscal year shall be the general fund budget for the ensuing year, until such time as a newly revised budget shall be adopted by the coun- cil, and, until such time, shall have full force and effect to the same extent as if the same had been adopted by the council, notwithstanding anything to the contrary in this chapter. Section 48. Expenditure Line Item, Veto by Mayor. If the mayor shall disapprove of any expenditure line item contained in the budget transmitted to him by the council, he shall, within ten (10) days of the time of its passage by the council, return the same to the clerk with his objections in writing, and the clerk shall make report thereof to the next regular meeting of the city council, and if two-thirds of the members elected to the said council shall at said meeting adhere to said expenditure line item by yeas and nays and spread upon the minutes, then and not otherwise, said expenditure line item shall become effective. Section 49. Effective Date of Budget; Certification; Copies Made Available. Upon final adoption, the budget shall be in effect for the budget year. A copy of the budget, as finally adopted, shall be certified by the mayor and city clerk and filed in the office of the Director of Finance. The budget so certified shall be printed, mimeographed or otherwise reproduced -28- [656] 126 and sufficient copies thereof shall be made available for the use of all offices, departments and agencies and for the use of the citizens of the city who request a copy. Section 50. Utility Budgets. Separate budget estimates for any public utilities owned and operated by the city shall be submitted to the Director of Finance at the same time as the budget estimates of other departments, and in the form prescribed by the Director of Finance. The mayor shall present to the council the budget for the utility operation, itemizing the receipts and expenditures in manner and form as is generally provided for in Section 41 of this chapter as being applicable to the general fund budget. Section 51. Work Plan and Allotments. After the current expense budgets have been adopted and before the beginning of the fiscal year the head of each department, office, and agency, shall submit to the mayor in such form as he shall prescribe a work program which shall show the requested allotments of the appropriations for such department, office or agency for the entire fiscal year by monthly or quarterly periods as the mayor may direct. Before the beginning of the fiscal year the mayor shall approve, with such amendments as he shall determine, the allotments for each such department, office, or agency, and shall file the same with the Director of Finance who shall not authorize any expenditure to be made from any appropriation except on the basis of approved allotments, provided that such allotments shall be in conformity with the salaries established by ordinance, the provisions of any merit or civil service system applicable to such city, the laws of the State of Alabama and any municipal ordinances of such city, relating to obligatory expenditures for any purpose. The aggregate of such allotments shall not exceed the total appro- priation available to each such department, office, or agency for the fiscal year. An approved allotment may be revised during =25~ the fiscal year in the same manner as the original allotment was made. If at any time during the fiscal year the mayor shall as- certain that the revenue cash receipts of the general fund or any public utility for the year plus any cash surplus available from the preceding year, will be less than the total appropria- tions to be met from such receipts and said surplus, he shall reconsider the work and allotments of the departments, offices and agencies, and, subject to the laws of the State of Alabama and any municipal ordinances of the city relating to obligatory expenditures for any purpose, revise the allotments so as to forestall the incurring of a deficit; provided, however, that there shall be no reduction in salaries except by order of the council, or as authorized by law. Section 52. Transfers of Appropriations. The mayor may at any time authorize, at the request of any department, office, or agency, the transfer of any unencumbered balance or portion thereof in any general fund appropriation from one classification of expenditure to another within the same department, office or agency. At the request of the mayor, the council may by resolution transfer any unencumbered balance or portion thereof in any general fund appropriation from one department, office or agency to another. Section 53. Additional Appropriations. Appropriations in addi- tion to those contained in the original general fund budget ordinance, may be made by the council by not less than five affirmative votes, but only on the recommendation of the mayor and only if the Director of Finance certifies in writing that there is available in the general fund a sum unencumbered and unappropriated sufficient to meet such appropriation. Section 54. Emergency Appropriations. At any time in any budget year, the council may, pursuant to this Section, make emergency ~30< [658] 128 appropriations to meet a pressing need for public expenditures, for other than a regular or recurring requirement, to protect the public health, safety or welfare. Such appropriation may be made by the council, by not less than five affirmative votes, but only on the recommendation of the mayor. The total amount of all emergency appropriations made in any budget year shall not exceed five per centum of the total general fund operating appropriations made in the budget for that year. Section 55. Appropriations to Lapse. Any portion of an appro- priation remaining unexpended and unencumbered at the close of the fiscal year, shall lapse. — Section 56. Capital Budget. At the same time that he submits the general fund budget, the mayor shall submit to the council a capital improvement program covering all recommended capital improvement projects, for the ensuing fiscal year and for the four fiscal years thereafter, with his recommendation as to the means of financing the improvements proposed for the ensuing fiscal year. The council shall have the power to accept with or without amendments or reject the proposed program and proposed means of financing for the ensuing fiscal year; and may from time to time during the fiscal year amend by ordinance adopted by at least five affirmative votes, the program previously adopted by it, or the means of financing the whole or any part thereof or both, provided that the amendment shall have been recommended by the mayor and further, provided such additional funds are available in the general fund or in any other fund of the city available therefor. The council shall adopt a capital budget prior to the beginning of the fiscal year in which the budget is to take effect. No appropriations for a capital improvement project contained in the capital budget shall lapse until the purpose for which the appropriation was made shall have ~31- 658 129 [659] been accomplished or abandoned, provided that any project shall be deemed to have been abandoned if three fiscal years lapse with- out any expenditure from or encumbrance of the appropriation therefor. Any such lapsed appropriation shall be applied to the payment of any indebtedness incurred in financing the project concerned and if there be no such indebtedness shall be available for appropriation. Section 57. Certification of Funds; Penalties for Violation. No payment shall be made and no obligation incurred by or on behalf of the city except in accordance with an appropriation duly made and no payment shall be made from or obligation in- curred against any allotment or ab otopribtioh unless the Director of Finance shall first certify that there is a sufficient un- expended and unencumbered balance in such allotment or appro- priation to meet the same; provided that nothing herein shall be taken to prevent the advance authoriztion of expenditures for small purchases as provided in subsection (e) of Section 64 of this chapter. Every expenditure or obligation authorized or incurred in violation of the provisions of this chapter shall be void. Every payment made in violation of the provisions of this chapter shall be deemed illegal and every official who shall knowingly authorize or make such payment or knowingly take part therein and every person who shall knowingly receive said payment or any part thereof shall be jointly and severally liable to the city for the full amount so paid or received. If any officer, member of the board, or employee of the city, shall knowingly incur any obligation or shall knowingly authorize or make any expenditure in violation of the provisions of this chapter or knowingly take part therein, such action shall be cause for his removal. Nothing in this section contained, however, shall prevent the making of contracts of lease or for services providing for the payment of funds at a time beyond the fiscal =33- [660] 130 year in which such contracts are made, provided the nature of such transactions will reasonably require the making of such contracts. Section 58. Reserve for Permanent Public Improvements. The council may by ordinance establish a reserve fund for permanent Hh . * . . i public improvements and may appropriate thereto any portion of the general fund cash surplus not otherwise appropriated at the close of any fiscal year. Appropriations from the said fund shall be made only to finance improvements included in the capital budget. | Section 59. Budget Continuation. Any official adopted budget in | existence at the time that the council is first organized shall | continue in force and effect during the balance of the city's then fiscal year, or until such time as the mayor may submit to the council and the council adopts, an amended, altered or | I revised budget for the balance of said fiscal year. I Section 60. Budget Summary. At the head of the budget there ! shall appear a summary of the budget, which need not be itemized further than by principal sources of anticipated revenue, stating | separately the amount to be raised by property tax, kinds of | expenditures itemized according to departments, doing so in | such manner as to present to the taxpayers a simple and clear summary of the detailed estimates of the budget. ARTICLE VI DEPARTMENT OF FINANCE I Section 61. Director of Finance; appointment. There shall be a | | department of finance, the head of which shall be the Director of Finance, who shall be appointed by the mayor, subject to pro- visions of civil service or the merit system applicable to the He shall be the chief Financial Officer of the city. clicy. -33- | 660 Section 62. Director of Finance; qualifications. The director of finance shall be a person skilled in municipal accounting, taxation, and financial control. Section 63. Director of Finance, surety bond. The Director of Finance shall provide a bond with such surety and in such amount as the council may require by resolution or ordinance. The premium on said bond shall be paid by the city. Section 64. Director of Finance; powers and duties. The Director of Finance shall have general management and control of the several divisions and units of the Department of Finance. He shall have charge, subject to the direction and control of the mayor, of the administration of the financial affairs of the city, and to that end shall have authority and be required to: (a) cooperate with the mayor in compiling estimates for the general fund, public utility and capital budgets; (b) supervise and control all encumbrances, expendi- tures and disbursements to insure that budget appropriations are not exceeded; (c) prescribe and install systems of accounts for all departments, offices, and agencies of the city and provide instructions for their use; and prescribe the form of receipts, vouchers, bills or claims to be used and of accounts to be kept by all departments, offices, and agencies of the city; (d) require daily, or at such other intervals as he may deem expedient, a report of receipts from each of such de- partments, offices and agencies, and prescribe the time and the manner in which moneys received by them shall be paid to the office of the Director of Finance or deposited in a city bank account under his control; =34- 661 [662] 132 (e) examine all contracts, purchase orders and other documents, except bonds and notes which create financial obliga- tions against the city, and approve the same only upon ascertain- ing that money has been appropriated and allotted therefor and that an unexpended and unencumbered balance is available in such appropriation and allotment to meet the same, provided that the Director of Finance may give advance authorization for the expenditure from any appropriation for the purchase of supplies, materials, or equipment of such sum, within the current allotment of such appropriation as he may deem necessary during a period of not to exceed the ensuing three calendar months for the purchase of items not to exceed in cost One Hundred Dollars for any one item, and immediately encumber such appropriation | with the amount of such advance authorization, and thereafter, | within the period specified, purchase orders for such items, to an aggregate not exceeding such authorization, shall be valid without the prior approval of the Director of Finance endorsed thereon, but each such purchase order shall be charged against such authorization and no such purchase order, which together with all such purchase orders previously charged within the period specified shall exceed the amount of such authorization, | shall be valid; (f) have custody of all public funds belonging to or under the control of the city, or any office, department or agency of the city government and deposit all funds coming into his hands in such depositories as may be designated by resolution or ordinance of the council, or, if no such resolution or ordinance be adopted, by the mayor, subject to the requirements of law as to surety and the payment of interest on deposits. | All such interest shall be the property of the city and shall be accounted for and credited to the proper account. He shall not be liable for any loss sustained as to funds of the city that =35~ 133 [663] are on deposit in such a designated bank or depository; (g) audit and approve before payment, all bills, invoices, payrolls and other evidences of claims, demands or charges against the city government and with the advice of the department of law, determine the regularity, legality and correctness of such claims, demands or charges; (h) have custody of all investments and invested funds of the city or in its possession in a fiduciary capacity, unless otherwise provided by this chapter, or by law, ordinance or the terms of any trust, and the safekeeping of all bonds and notes of the city and the receipt and delivery of city bonds and notes for transfer, registration and exchange; (i) have supervision over the preparation of bond ordinances, bonds, advertisements for sale of bonds, preparation of bond prospectuses, conduct of sale of bonds, and delivery of bonds, all subject to provisions of law and municipal ordinances, applicable thereto. Bonds shall be authenticated by the manual signature of the Director of Finance and shall bear the facsimile signature of the mayor and a facsimile of the seal of the city. Interest coupons transferable by delivery shall be attached to the bond and shall be authenticated by the facsimile signature of the Director of Finance; (j) supervise and direct the placing of all types of insurance carried by the city where the premiums in whole or in part are paid by the city, or the premiums in whole or in part are withheld through the payrolls; the amount of all types of insur- ance on which the city pays the premiums in whole or in part shall be determined by the council after a recommendation by the mayor; (k) submit to the mayor for presentation to the council not later than the twelfth day of each month, a statement showing in reasonable detail the revenues received by the city during the =36~ 663 [664] 134 preceding month, the revenues received during that fiscal year up to and through the end of the preceding month, the expendi- tures made during the preceding month, and the accumulated ex- penditures made during that fiscal year up to and through the end of the preceding month, together with a comparison of said items with the budget estimates; (1) furnish to the head of each department, office or agency of the city a copy of that portion of the statement as required in item (k) of this section, as same is related to his department, office or agency; (m) prepare and submit to the mayor at the end of each fiscal year, for the preceding year, a complete financial statement and report of the financial transactions of the city; (n) nets alin the approval of the Mayor, and subject to the provisions of any merit or civil service system applicable to such city, an employee of the department of finance as deputy director of finance who during the temporary absence or incapacity of the director of finance shall have and perform all the powers and duties conferred or imposed upon the director of finance; (0) protect the interests of the city by withholding the payment of any claim or demand by any person, firm or corporation against the city until any indebtedness or other liability due from such person, firm or corporation shall first have been settled and adjusted; (p) collect all special assessments, license fees and other revenues of the city for whose collection the city is responsible and receive all money receivable by the city from the county, state or federal government, or from any court, or from any office, department or agency of the city; (q) with nprovel of the mayor to inspect and audit any accounts or records of financial transactions which may be 37 664 135 [665] maintained in any office, department or agency of the city government apart from or subsidiary to the accounts kept in his office; (r) supervise through the division of purchases as provided for in Section 67 of this chapter and be responsible for the purchase, storage and distribution of all supplies, materials, equipment and other articles used by any office, department or agency of the city government. Section 65. When contracts and expenditures prohibited. No officer, department or agency shall, during any budget year, expend or contract to expend any money or incur any liability, or enter into any contract which by its terms involves the expenditure of money, for any purpose, in excess of the amounts appropriated for that general classification of expenditure pursuant to this chapter. Any contract, verbal or written, made in violation of this chapter shall be null and void. Nothing in this Section contained, however, shall prevent the making of contracts or the spending of money for capital im- provements to be financed in whole or in part by the issuance of bonds, nor the making of contracts of lease or for services for a period exceeding the budget year in which such contract is made, when such contract is permitted by law. Section 66. Fees shall be paid to city government. All fees received by any officer or employee of the city, shall belong to the city government and shall be paid daily to the depart- ment of finance. Section 67. Division of purchases. There shall be established in the department of finance a division of purchases, the head of which shall be the city purchasing agent. The purchasing agent, pursuant to rules and regulations established by resolu- -38= [666] 136 tion or ordinance, shall contract for, purchase, store and distribute all supplies, materials and equipment required by by any office, department or agency of the city government. The purchasing agent shall also have power and shall be re- quired to: (a) Establish and enforce specifications with respect to supplies, materials, and equipment required by the city govern- ment; (b) Inspect or supervise the inspection of all de- liveries of supplies, materials and equipment, and determine their quality, quantity and conformance with specifications; (c) Have charge of such general storerooms and ware- houses as the council may provide by resolution or ordinance; (d) Transfer to or between offices, departments or agencies, or sell surplus, obsolete, or unused supplies, material and equipment; (e) Perform such other duties as may be imposed upon him by resolution or ordinance. Section 68. Competitive bidding. Before the purchasing agent makes any purchase of or contract for supplies, materials or equipment, he shall give ample opportunity for competitive bidding, under such rules and regulations and with such exceptions as the council may prescribe by resolution or ordinance, provided, however, that the council shall not exempt individual contracts, purchases, or sales from the requirement of competitive bidding. Section 69. Contracts for city improvements. Any city improve- ment costing more than $2,000 shall be executed by contract ex- cept where such improvement is authorized by the council to be executed directly by a city department in conformity with detailed plans, specifications and estimates. All such contracts for more than $2,000 shall be awarded to the lowest responsible ~39- 666 137 [667] bidder after such public notice and competition as may be pre- scribed by resolution or ordinance, provided the mayor shall have the power to reject all bids and advertise again. Altera- tion in any contract may be made when authorized by the council upon the written recommendation of the mayor. Nothing in this or Section 68 shall be construed to supersede or nullify pro- visions of state law requiring or governing competitive bidding. Section 70. Accounting control of purchase. All purchases made and contracts executed by the purchasing agent shall be pursuant to a written requisition from the head of the office, department or agency whose appropriation will be charged, and no contract or order shall be issued to any vendor unless and until the director of finance certifies that there is to the credit of such office, department or agency, a sufficient unencumbered appropriation balance to pay for the supplies, materials, equip- ment or contractual service for which the contract or order is to be issued. Section 71. Borrowing in anticipation of revenues. In any budget year, in anticipation of the collection or receipt of revenues of the budget year, the council may by resolution authorize the borrowing of money by the issuance of negotiable notes of the city, each of which shall be designated ''revenue note for the year 19__ (stating the budget year)'. Such notes may be renewed from time to time; but all such notes, together with the renewals thereof, shall mature and be paid not latex than the end of the fiscal year after the budget year in which the original notes have been issued. Such borrowing shall be subject to any limitation on amount provided by statute. Section 72. Borrowing to meet emergency appropriations. In the absence of unappropriated available revenues to meet emergency ~L0=~ 667 [668] 138 appropriations under the provisions of Section 53, the council may by resolution authorize the issuance of notes, each of which shall be designated "emergency note' and may be renewed from time to time, but all such notes of any fiscal year and any | renewals thereof shall be paid not later than the last day of the fiscal year next succeeding the budget year in which the emergency appropriation was made. Section 73. Notes redeemable prior to maturity. No notes shall be made payable on demand, but any note may be made subject to | redemption prior to maturity on such notice and at such time | as may be stated in the note. Section 74. Sale of notes; report of sale. All notes issued | pursuant to this chapter may be sold at not less than par and accrued interest at private sale without previous advertisement. ARTICLE VII | SUCCESSION IN GOVERNMENT | Section 75. Rights of officers and employees preserved. Nothing in this.chapter contained, except as specifically provided, shall | affect or impair the rights or privileges of officers or employees | of the city or of any office, department or agency existing at the time when this chapter shall take effect or any provision of law in force at the time when the Mayor - Council form of govern- ment shall become applicable and not inconsistent with the pro- | visions of this chapter in relation to the personnel, appointment, ranks, grades, tenure of office, promotion, removal, pension and | retirement rights, civil rights or any other rights or privileges | of officers or employees of the city or any office, department or agency thereof. 4) ~ 668 139 [669] Section 76. Continuance of present officers. All persons hold- ing administrative office at the time the Mayor - Council form of government becomes effective shall continue in office and in the performance of their duties until provisions have been made in accordance therewith for the performance of such duties or the discontinuance of such office. The powers conferred and the duties imposed upon any office, department or agency of the city by the laws of the State, if such office, department or agency shall be abolished by this chapter, or under its authority, be thereafter exercised and discharged by the office, department or agency designated by the council unless otherwise provided herein. Section 77. Status of officers and employees holding positions when the Mayor - Council form of government becomes effective. Any person holding an office or position in the classified service of the city under any civil service or merit system applicable to the city when the Mayor - Council form of government shall become effective shall be continued as such officer or employee in the classified service of the city under the Mayor - Council form of government and with the same status, rights and privi- leges and subject to the same conditions under such applicable civil service or merit system as if the Mayor - Council form of government had not become applicable. Section 78. Transfer of records and property. All records, property and equipment whatsoever of any office, department or agency or part thereof, all the power and duties of which are assigned to any other office, department or agency by this chapter, shall be transferred and delivered to the office, department, or agency to which such powers and duties are so assigned. If part of the powers and duties of any office, de- partment or agency or part thereof are by this chapter assigned he 669 [670] 140 to another office, department or agency, all records, property and equipment relating exclusively thereto shall be transferred and delivered to the office, department or agency to which such powers and duties are so assigned. Section 79. Continuity of offices, departments or agencies. Any office, department or agency provided for in this chapter with a name or with powers and duties the same or substantially the same as those of an office, department or agency heretofore existing shall be deemed to be a continuation of such office, de- partment or agency and until otherwise provided, shall exercise its powers and duties in continuation of their -exercise by the office, department or agency by which the same were heretofore exercised and, until otherwise provided, shall have power to continue any business, proceeding or other matter within the scope of its regular powers and duties commenced by an office, department or agency by which such powers and duties were here- tofore exercised. Any provision in any law, rule, regulation, | contract, grant or other document relating to such a formerly existing office, department or agency, shall, so far as not inconsistent with the provisions of this chapter, apply to such | | office, department or agency provided for by this chapter. Section 80. Continuance of contracts and public improvements. All contracts entered into by the city, or for its benefit, prior to the application to such city of the Mayor - Council form of government, shall continue in full force and effect. Public improvements for which legislative steps have been taken under laws existing at the time of the organization under the Mayor - Council form of government may be carried to completion as nearly as practicable in accordance with the provisions of such existing laws. =43= 670 { | | \ 141 [671] Section 81. Pending actions and proceedings. No action or pro- ceedings, civil or criminal, pending at the time of the organiza- tion under the Mayor - Council form of government, brought by or against the city or any office, department or agency or officer thereof, shall be affected or abated by the change to the Mayor - Council form of government or by anything contained in this chapter; but all such actions or proceedings may be continued notwithstanding that functions, powers and duties of any office, department or agency or officer party thereto may by or under this chapter be assigned or transferred to another office, department or agency or officer, but in that event the same may be prosecuted or defended by the head of the office, de- partment or agency to which such functions, powers and duties have been assigned or transferred by or under this chapter. Section 82. Pension and Relief Funds. All laws and parts of laws relating to pensions or retirement and relief funds for policemen, firemen and other employees of the city, contained in the general or local laws of the State or in Title 62 of the Code of Alabama, as amended, as the same may apply and be in effect with respect to the City of Mobile at the time when such city shall become governed by the provisions of this chapter, shall continue in full force and effect, and without interruption or change as to any rights which have been ac- quired thereunder. Section 83. Park, playground and fairground authority. All laws and parts of laws relating to establishment of an authority for fairgrounds, parks, exhibits, exhibitions and other in- stallations, facilities and places for the amusement, enter- tainment, recreation and cultural development of the citizens of a city, and for the powers, authority, mode of financing and conduct of the same, contained in the general or local laws of ~blym 671 [672] 142 the State or in Title 62 of the Code of Alabama, as amended, as the same may apply and be in effect with respect to any city at the time when such city shall become organized under the provisions of this chapter, shall continue in full force and effect, and without interruption or change as to the estab- lishment or conduct of any authority created thereunder, after application of the Mayor - Council form of government to such city. Section 84. Continuance of ordinances and resolutions. All ordinances and resolutions of the city in effect at the time of this court's decree dated the 2lst day of October, 1976, as last amended, and the Mayor - Council form of government herein set up becomes effective shall continue in effect unless | and until changed or repealed by the council. ARTICLE VIII or e — — — — GENERAL PROVISIONS Section 85. Removal of officers and employees. Subject to the provisions of any civil service or merit system applicable to | the city, any officer or employee to whom the mayor, or a head of any office, department or agency, may appoint a successor, may be removed by the mayor or other appointing officer at any time, and the decision of the mayor, or other appointing officer shall be subject to appeals therefrom, if any, provided by applicable law. Section 86. Right of mayor and other officers in council. The mayor, the heads of all departments, and such other officers of the city as may be designated by the council, shall be entitled to attend meetings of the council, but shall have no vote therein, the mayor shall have the right to take part in the discussion =45= 672 | { ( | \ ( { | 143 [673] of all matters coming before the council, and the directors and other officers shall be entitled to take part in all discussions of the council relating to their respective offices, departments or agencies. Section 87. Investigations by council or mayor. The council, the mayor, or any person or committee authorized by either of them, shall have power to inquire into the conduct of any office, department, agency or officer of the city and to make investigations as to municipal affairs, and for that purpose may subpoena witnesses, administer oaths, and compel the produc- tion of books, papers and other evidence. Section 88. Contracts extending beyond one year. No contract involving the payment of money out of the appropriation of more than one year shall be made for a period of more than five years, nor shall any such contract be valid unless made or approved by resolution or ordinance. Section 89. Employees not to be privately interested in city's contracts. No city employee shall be interested, directly or indirectly, in any contract for work or material, or the profits thereof, or services to be furnished or performed for the city. The mayor and councilmen shall recuse themselves from any and all official acts or duties in which they have an interest, directly or indirectly, in any contract for work or material, or the profits thereof, or services to be furnished or performed for the city. Section 90. Official Bonds. The director of finance, and such other officers or employees as the council may by general ordi- nance require so to do, shall give bond in such amount with such surety as may be approved by the council. The premiums on such bonds shall be paid by the city. til 673 [674] 144 Section 91. Oath of Office. Every officer of the city shall, before entering upon the duties of his office, take and sub- scribe to the following oath or affirmation, to be filed and kept in the office of the city clerk: "I solemnly swear (or affirm) that I will support the Constitution and will obey the laws of the United States and of the State of Alabama, and that I will, in all respects, observe the provision of the ordinances of the City of Mobile, and will faithfully discharge the duties of the office of Section 92. Reapportionment. Whenever there shall be a change in the population in any of the nine districts heretofore estab- lished, evidenced by a federal so in of population published following a decennial federal census hereafter taken beginning in 1990, there shall be a reapportionment of the council dis- tricts in the manner hereinafter provided. (1) The mayor shall within six months after the pub- lication of the 1990 federal census, and each decennial federal census thereafter of the population of the city, file with the council a report containing a recommended plan for the reappor- tionment of the council district boundaries to comply with the following specifications: (a) Each district shall be formed of contiguous and to the extent reasonably possible, compact territory, and its boundary lines shall be the centterlings of streets or other well defined boundaries. (b) Each district shall contain as nearly as is reasonable the same population. (2) The report shall include a map and description of the districts recommended and shall be drafted as a proposed ordinance and considered by the council as other ordinances are considered. Once filed with the clerk, the report shall be =47- 674% | | | 145 treated as an ordinance introduced by a council member. (3) The council shall enact a redistricting ordinance within six months after receiving such report. If the council fails to enact the redistricting ordinance within the said six months, the redistricting plan submitted by the mayor shall become effective without enactment by the council, as if it were a duly enacted ordinance. (4) Such redistricting ordinance shall not apply to any regular or special election held within six months after its becoming effected. No incumbent councilman or member of the board or commission shall be deprived of his unexpired term of office’/because of such redistricting. 675 [675] 146 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 15. = 2 | blacks were disinfranchised before 1950. 3 | MR. BLACKSHER: | : | All right, sir. There is some question in this | 2 case whether there was any discriminatory racial motive | 5 ll venind 20a IAT Mr. 7 THE COURT: | 8 All right. Go ahead, Mr. Blacksher. 9 MR. BLACKSHER: | 10 We call Dr. McLaurin. 1 | 12 DR. MELTON McLAURIN | ip the witness, called on behalf of the Plaintiffs, and I after having first been duly sworn to tell the truth, the | 5 whole truth, and nothing but the truth, took the stand and 18 testified as follows: 17 DIRECT EXAMINATION | | 19 BY MR. BLACKSHER: 9 2 Q May it please the Court, this is Dr. Melton A. 1 2 McLaurin. Dr. McLaurin was born July 11, 1941. His place 22 of birth was Fayetteville, North Carolina. His present | 23 ; : | address is 808 Deerfield Court, Mobile. He is married. 24 . His formal education includes a Bachelor's Degree | 25 — p 147 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 18 24 25 and I have taught non-credit courses in the history of Mobile. Those are the basic courses that I teach. Q Where did you teach these non-credit courses on the history of Mobile? A At the University of South Alabama continuing education division. Q Have you ever testified in Court as an expert witness, Dr. McLaurin? A No, I haven't. Q Have you ever testified as a witness in any role in Court? A No. I haven't. MR. BLACKSHER: Your Honor, on the basis of the testimony of the witness and the evidence in his curriculum vitae, which we have not completely summarized, we move that Dr. McLaurin be qualified as an expert witness in the field of Southern History, generally, and in the history of Mobile, Alabama? THE COURT: All right. Go ahead. MR. BLACKSHER: Q Dr. McLaurin, what was the beginning of black political activity in Mobile, Alabama? A Blacks became politically active in Mobile with 148 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 19 the beginning of radical reconstruction in the spring of 1867 and that was the beginning of their political activity. Q How did they become active? MR. ARENDALL: Objection, irrelevant. THE COURT: I will let him show it: Overruled. A They became politically active in almost all areas. They held a convention immediately after the passage of the Reconstruction Acts and gathered themselves together to decide what activities to engage in. From that point forward, which was in May of '67, and were active in almost all fields of political endeavor. Q What about black citizens in Mobile, particularly? Were they any more active? A Well, Mobile was the major urban center in the State and blacks congregated here at the end of the war and held sort of a black political convention here -- not at the end of the war, but at the beginning of radical reconstruc- tion, yes. In a way, Mobile was a center for black political activity. Q Were black Mobilians active in any way in forming policy? A Blacks were represented at the convention in 1867 | 149 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 2 which wrote the constitution in 1868 and actively partici- | 3 pated in that convention. 4 Q Do you recall the names of those black delegates? 5 THE COURT: 6 Is that detail necessary? You know, you are going | 7 over something that is generally knowledgeable. It is all 8 right to build your pattern, but cut down on some of it unless | 9 the name has some particular significance. 0 MR. BLACKSHER: | | 1 We will move along, your Honor. | 12 Q I don't want to say it was generally knowledgeable. Most of it was new to me. | THE COURT: | | Well, go ahead. MR. BLACKSHER: 16 ” Q What about from the period 1868 or 1867 forward, | od were blacks politically active in Mobile then? | A Blacks were active in Mobile politics and in the " State, in general, up until 1901 and they were active 7 throughout that period. 7 Q What was the effect of the 1893 Sayer election law, and what was that? | MR. ARENDALL: 24 Objection, irrelevant. 150 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 21 THE COURT: I will let him testify. A The Sayer election law was introduced primarily by the conservative elements of the Democratic party in an intent to cut down on the populist vote. It was a direct result of a challenge to the Democratic party by the populist and it was an effort to disinfranchise voters in lower socio-economic groups, including blacks, to some extent. Q Did the Sayer law disinfranchise all black voters? A No. Q You say up until 1901. Would you describe what happened then? A Nineteen hundred and one, the new constitution was adopted and one of the major purposes was for -- for its adoption was disinfranchisement of black voters. That was primarily it. And with the adoption of that constitution, blacks were effectively moved from the political process from the State of Alabama and the City of Mobile. Q Was black disinfranchisement the principal purpose of the 1901 Alabama Constitution? A I would say black disinfranchisement was the principal purpose for the constitutional convention and, in addition to that, it was the major way in which the 151 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 22 J 23 24 Bo O v disinfranchisement was sold. The idea that the convention was going to be held primarily to disinfranchise blacks and to guarantee white supremacy was the way the calling of the convention was sold to the public and it was the way the product of the consti- tution was sold to the public. Q What were the reasons for the politicians then wanting to disinfranchise black voters? A The movement probably gained its largest impact from the idea that black votes were corrupt and blacks causes corruption in the political activity and, therefore, to disinfranchise blacks would be a political reform by removing corruption from politics. Now, that is the reason that is generally stated. There are other motives involved. Q What was the so called reform movement that was going on, at that time? A Well, this is generally called the progressive movement by historians and in the south the progressive movement included disinfranchisement because the black voting patterns were shown as corrupting patterns. Various whites sought the black vote. As a matter of fact, it would be manipulated in the black belt counties to assure this passage. 152 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 23 21 22 23 no (W ]] Q Was disinfranchisement, as carried out through the 1901 constitution, resisted by black citizens? A Oh, yes. Q What about black Mobilians? A Oh, yes. Black Mobilians, as a matter of fact, took the lead, they and blacks in Birmingham, in resisting disinfranchisement. Q What were the devices employed by the 1901 consti- tution to disinfranchise blacks? A There were a number of them. The basic one was literacy and property qualifications, residential qualifi- cations, but the literacy requirement was the basic one. Q What involvement in the 1901 constitutional conven- tion was there by white Mobile politicians? A Well, I think one can say, by and large, the progressive community in Mobile was considered, at that time by historians, was to be in the progressive democratic camp, which was quite active. The register, for example, was one of the leading newspapers calling for a constitu- tional convention. Several prominent politicians who would be considered progressives either supported the convention Or participated in it. Q Who were the delegates from Mobile to that conventio A Well, the delegates to the convention were Harry n? | | | 153 FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 | MOBILE, ALABAMA | 24 1 2 Pillans and a gentleman named Brooks, I believe, are the two 3 that come to mind. 4 Q Did these Mobilians support the disinfranchisement 5 of the black voters? 6 A Yes. 7 Q Do you have with you correspondence that was 8 originated by Mr. Harry Pillans concerning his intention as 9 i. member of the 1901 constitutional convention? 10 A Yes. And I think generally they show a progressive 11 attitude toward disinfranchisement; that is, disinfranchisement 12 was a reform, a part of the general reform movement. 13 Q What brought about the adoption of the current 14 commission form of city government in 1911? 15 A Well, I would say it was again considered a 16 Thotetsive reform. The idea of having a more efficient 17 government, and particularly a government that was more i business like and one that was less amenable to what the 1 | advocates of the commission form of government would have 5 considered political corruption. These were the basic ” reasons, I think, for the support for the commission form of oy government. 3 It was also a part of the general progressive 5) ‘movement in the United States. Many other cities had already 25 adopted the commission form of government, both nationally 154 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 25 and in Alabama. Q Was racial discrimination, per se, a motivating factor in the passage of Act 281 of 1911 which created the Mobile City Commission? A I would say that racial considerations, per se, were not a part of the motivation, for two reasons; the basic one being that the blacks had already been disinfranchised by the 1901 constitution and its effect upon the blacks of the State and of Mobile and -- but I think it is also true that the proponents of the commission form of government were very much aware of the impact of the changes in the electoral process and this is one of the things they wanted. They wanted to get away from what they considered ward politics and they would have been aware that such a movement would have diminished the impact of amy voting by blacks in Mobile if there had been such voting in the future, but I do not see race, per se, as a reason for the 1911 City Commission. I would have to say no to that question. Q What specific connection do you see between the 1901 constitutional convention and Act 281 in 19117? A Well, the most obvious connection is that blacks in Mobile were totally unable to register any opinion, any voice in the development of the form of government, which was adopted in 1911, and continues to exist. That is the most 155 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA (8) on obvious connection. The other connection would be this idea of the Commission form of government being a part of the general reform package, so to speak, in that in Alabama and in the south in general, at that time, and the connection between general reform and the idea of eliminating the franchise as a part of that general reform, those are the two possible connections. Q What about in terms of black politicians? A Well, many of the progressive politicians who had supported the constitution of 1901 here in Mobile also supported the Commission form of government. It was that king of personal connection and Mr. Pillans would be, again, a very good example, since he was both a delegate at the 1901 constitution and was a member of the first City Commission. Q What about the last mayor? A Well, Mr. Lyons's position? Q That was Pat Lyons? A Yes. He was favorable to the 1901 constitutional convention and he also would have, after some thoughts, supported the 1911 movement and did serve on the first Commission as well. Q What black political activity was there in Mobile right after 19117? FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA i 27 i 1 2 IA None, approximately none. And, of course, that would 3 be true, too, earlier, until you get way up until -- the modern 4 | period, the second World War. 5 Q When did black political activity again become 6 | significant in Mobile? 7 A Political activity, per se, not until after the 8 decision in Smith versus Alright, which allowed blacks to take 9 part in white primaries, what has been previously been all 10 white primaries. 1944 would be the date. 11 10 The Clerk is handing you a document which has been | 12 marked as Plaintiffs' Exhibit number 2. | 13 Would you identify that, please? 1d HA Yes. That is an article by myself. 15 [0 Would you read the title of the article? 16 [A Mobile Blacks and World War II: The Development 17 of a Political Consciousness. 18 9 Would you briefly tell the Court the subject of that 19 article? | an [A Well, I think it would be fair to say that the article 91 simply recounts the beginning of political activity by blacks 23 in Mobile as a result of the second World War, the impact of 2 returning veterans, black veterans, who had fought in the | ot second World War and the ideas of equality and so forth and " determined to obtain them in their home town when they came back | || 157. FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 28 in trying to get the right to vote in 1944, which they were denied, and their appeals to the Democratic party and the Department of Justice and, finally, the opening up of the Democratic party to black participation and then white efforts led by Gessner McCorvey, who was chairman of the State Democratic Executive Committee and others to introduce legislative methods of suppressing black votes and then black challenges to that, particularly the Davis versus Schnell case which led to the declaration that the Boswell amendment, which was the disinfranchisement amendment was declared unconstitutional. That is briefly what the article covers. Q Does it mention Mr. Langan's arrival on the scene as a friend of black interests? A Yes, sir. It does. Mr. Joseph Langan. Q And the article ends off at what point in time? A It ends in 1950 with the legislative races of 1950. Q Where was that article published, Dr. McLaurin? A It was published in the proceedings of the Gulf Coast Histories and Humanities Conference, 1973. Q There is one set of figures in that article that I would like for you to call to the Court's attention. There i$ a registration figure, I believe, for the year of 1946? A That is correct. The registration figures, at that time, were two hundred and seventy-five registered blacks and 158 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 36 2 MR. ARENDALL: 3 Q How many people were on the aldermanic council 4 unit that governed Mobile, at that time? 5 A I could not give you an exact figure. I would have 6 to try to total up the wards and multiply. 7 Q A mere approximation? 8 A Approximately sixteen to eighteen. 9 Q Now, I will ask you whether or not a study of the 10 || newspaper articles of that time and the quotations of the 11 comments made by persons such as Mayor Pat J. Lyons demonstrates 12 that the change to the City Commission form was sold on the 13 basis of business and other considerations completely unrelated 14 | to race? 15 A I would agree that the basic approach in the campaign 16 | to change the form of government of the City of Mobile would 17 be an appeal to what would be called progressive economic 18 motivation, the idea of moving to a more business like form 5 of government. 20 L And this movement, in Mobile, had its counter part 2 ‘all over the United States, at that time, did it not? | 5 [A And before that time. | 93 Q In areas where there were no blacks or substantially ‘none? | A Yes. That would be true. 159 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 37 Q Desmoines, that is one? A Yes. Q Dayton, that is another? A Yes. Q And it was not, in these other places, either, motivated by racial considerations, was it? A No. MR. ARENDALL: No further questions. REDIRECT EXAMINATION BY MR. BLACKSHER: 0 Dr. McLaurin, I believe you said that one of the ‘meaningful factors of the 1901 constitutional convention was i disinfranchise poor whites. Are you saying that that was one of the primary purposes of that constitution? A No. I am not saying that. I am saying the primary ‘purpose of the constitutional convention was to disinfranchise ‘blacks and that, as a secondary purpose, there was a move to disinfranchise poor whites and there were members of the constitutional convention who would have disinfranchised every one who didn't make at least fifty thousand dollars a | year. O E — A 160 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 91 2 2 Whom will you have next? 3] MR. BLACKSHER: 4 | Dr. Cort Schlichting. 1 6 DR. CORT B. SCHLICHTING ? the witness, having first been duly sworn to tell ; the truth, the whole truth, and nothing but the truth, took the stand and testified as follows: 10 | | no DIRECT EXAMINATION 12 13 BY MR. STILL: 4 HD May it please the Court, this is Cort Burk 15 | Schlichting. He is thirty-four years of age. He now lives 16 | at 301 Vanderbilt Drive in the City of Mobile. 17 | He is married. Education includes a PHD from 18 L.S.U. He has lived in Mobile County for the last five years 19 | and he is now employed as a professor of economics; is that 20 | correct? 21 [£94 Associate. 29 | Q Associate professor of economics at Springhill | 23 | College. I would ask the Clerk to hand Dr. Schlichting s+ | Exhibit number 8. 95 | Would you look at Exhibit 8, please, doctor, and l6l FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 101 ~1 | Did you talk with Mr. Parker about the inclusion of the two small areas that were periodically annexed and 'de-annexed? A Very briefly, yes. We had to face that problem. n All right. Now, did you talk with them about what | ‘method to use or what method he was going to use to handle [ ‘the data regarding those two small areas? A Yes. 0 Now, considering the annexation, the synthetic wards that were done the way in which Mr. Parker computed the mean income computation and the use of the percentage of | each race over the age of eighteen, rather than the percentage | of each race which were actually registered to vote, what is your opinion as to the possible negative effect this had on the validity of the data? A I felt that we did the best possible job we could do | statistically to obtain the most accurate data we could get. All statisticians, all statistical data is going to have some error in it and given that caveat we attempted to gather the data as best we could and to have it as representative as possible. a) All right. Now, doctor, what is the function of regression analysis? | A Regression analysis is a statistical technique m e 162 | FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 102 i | frequently called regression correlation analysis, where you attempt to see if there is an association between a dependent variable and various independent variables. We attempt to explain the variations in the dependent variable, that is the movement in the dependent variables by movement in the independent variables. Q In this particular case we are talking about what ES the independent variable? A The independent variables, there were two of them, WHSTe the income, per capita, mean income per capita, was one of the independent variables and the other one was the percent of race in a particular ward. fo] And what was the dependent variable? A The dependent variable was a percent that a parti- cular issue or a particular candidate obtained in a particular race, percent of the total vote in that ward. Q Are there any problems presented by using two independent variables rather than one in the same analysis? A No. You want to include probably more than one A because what you are attempting to do is to find which variable, which thing is effecting the dependent variable. So, when you throw in two or more and then by using regression correlation analysis you can find out which one | | is the most powerful variable. | | 163 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA : ee : 103 1 2 [0 All right. Mr. Clerk, would you hand the witness | 3 Exhibit number 9, please? | 4 | Dr. Schlichting, please look at Exhibit 9 and tell | 5 | me whether you have ever seen it before? | 6 [A I have. | 7 1Q What is it? : | g TA It is Dr. Voyles's desertation. 9 |IQ What is the title? | 10 p The title of it is "An Analysis of Mobile Voting | 11 Patterns,” 194%%+0"1970", | 12. 19 Have you read the entire thing? 3 A No, I have not. | 4 18 Have you read parts of it? 15 A Yes. 16 Q What parts have you read? 7 A I have read the methodological parts, the portions ve where he deals with the statistics that he had gathered and ” used in his desertation. 2% Q Does Dr. Voyles use regression analysis? 21 A In a manner of speaking, yes. 99 g What type of regression analysis does he use? | 5 A His statistical analysis is called Pearson's by Product Moment Method. It is one of two main kinds of ways Ls ‘that we can look at variables and see which ones are effecting 5 | | | 164 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA ihe dependent variable. 0 Did we use the same method in ours? A No. We did not. Q What did we use? A We used what is called least squares method. Q In terms of Dr. Voyles's methodology, would you compare that with ours and tell us what the major differences ‘were, if any? A There are no real major differences. The differences ‘statistically, the starting point of where you relate the various variable values to what base you relate the various variable values, but in point of fact, they give you the same answer. 0 Did Dr. Voyles trace income and race data as we did? A He did. Q Was the general format of that data, as far as you ‘can tell from the desertation, pretty much the same as ours? 1A It seemed to be quite similar. In fact, his format n what we used or attempted to use. 0 All right. Now, you have explained that the regressi analysis, using the least squares method which we used can handle two or more independent variables? A Correct. 138% on 165.166 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 105 21 22 23 (3 ) 1 ] N Is the Pearson's R regression analysis technique capable of handling more than one independent variable at the time? A Yes, sir, basically. 'n As far as you can tell from Dr. Voyles's thesis, Aid he do that, did he use more than one at a time? A No. I think not. I think he used race and compared it to the percent of vote that a candidate got and then he compared income, if I recall correctly. MR. STILL: Your Honor, we move the introduction of Exhibit number 9. | THE COURT: | All right. | (Plaintiffs' Exhibit number 9 received | and marked, in evidence) MR. STILL: Ns, Would the Clerk please hand the witness Exhibits 10 through 33. | Dr. Schlichting, have you had a chance to examine | | | the computer print-outs which begin at Exhibit 10 and go through Exhibit 527 | A Yes. 0 Would you tell the Court what they are as a group, 167 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 107 | | ‘similar to that giving dates and names? A Yes, they are. 0 What is the next thing on the computer print out? A The original data, the table of the original data. Q And how is that data arranged? A It is in three columns, The first column is the percent of the ward population that is black, over eighteen. The second column is mean income per capita and the third colum -- those are both independent variables -- and the fetid column is the dependent variable. That is the percent of vote received in this particular case by Mr. Goode. Q All right. Once that data ..... THY. COURT: Let me ask you a question. Do you mean the dependent] variable is dependent on the independent variable? A That is correct. That is what we are trying to postulate. (THE COURT: | ~ You are saying there is a causal connection? A No, sir, not a causal connection. There is an influence, we think. We are going to test for an influence aL work. We can't -- statistics say there is a cause and effect. We don't have that background. 168 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA | 2 THE COURT: | All right. To use your terminology it is less than PRIA 5 A Yes, It is influential. At least, that is what 6 we are testing. " MR. STILL: 8 | Now, is that all the data, that is raw data that 9 ||is fed into the computer? 0 IIA That is correct, other than control cards that 11 tell the computer what to do and this sort of thing. pe 48 All right. Then is the program fed in? 13 A Yes. 14 Q All right. Now, is this a program that was written 15 | specifically for this case or is it a standard program? 16 ‘A This is a standard program that was supplied by 17 | IBM at Springhill, one of many programs. I adjusted it 18 to print up more than what they supplied, but basically that 16 is ir. 2 Q What other sort of things does Springhill use this ol for? 7 A I don't know that Sprinchill, per se, that is the 2 administration has used it, but I have used it in a number rn of different things. I have used it in analysis of factors probably affecting bank credit and I have used it in several : 169 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 131 reported in his desertation and for various multiple correlation 3 coefficients that we found when we ran all of these computer 4 | print-outs. 5 Q All right. For the top portion of the top sheet 6 | you have 'Voyles Pearson's R'? ” A Yes. 8 Q And you have a set of dates and under each date you 9 have income and race? 10 A Correct. 1 Q Now, is that the Pearson's R for income and the 19 Pearson's R for race; is that what it is? 13 A Yes. ” 0 For each one of the elections that we are talking | 2 15 about? ir A Correct. 3 'Q Now, under regression, you have only listed a {8 coefficient. Is that the coefficient of race or income or of both? 19 3 A That is the coefficient of race, unless otherwise | specified. 21 THE COURT: 22 7 Hold up. The Reporter has to change his tape. (OFF THE RECORD) 9g | | MR. STILL: I 1 Hl | 1 A All of our coefficients as shown in the middle of the . table that it is race unless indicated with a star. MR. STILL: 170 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Would you repeat the last sentence or so that you said about the stars? first page and on down refer to race as the factor that entered first in the regression analyses unless there is a star by it, in which case, income was the most significant variable. Q All right, MR. ARENDALL: Where is a star? A There are no stars on the first page. MR. ARENDALL: I see. THE COURT: I think you should make a note at the top of that Would you so indicate, please, next to the regressioj A Yes. MPR. STILL: Your Honor, I am through looking at my copy of it. If you would like to look at it, we will be referring to it some more. THE COURT: W W X32 171 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 133 24 25 All right. MR. STILL: Now, Dr. Schlichting, is there a point in which the multiple correlation coefficient is considered to be significant or not significant in regard to the type of analyses we have been runnimg here? A Well, as Dr. Voyles shows in his desertation, there is a table in here that lists the ranges within which these are values the regression coefficients are significant or not significant. Basically, anything above say fifty -- point five, point six, will begin to give you significant relationships. Q 2 All right. Now, would that also include above | if we want to call that a negative point six? A Yes. The sign is ignored. Q All right. Now, if there was a correlation between two variables and the multiple correlation coefficient came out to be one point zero with a plus sign in front of it, what would that indicate as to the relationship between the two variables? A It would indicate that there is a perfect relation- ship between the two variables, that the independent variable can perfectly explain the dependent variable. Q If the multiple correlation coefficient came out as 172 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA | 142 1 2 | along racial lines, what is the cast of this? 3 | MR. STILL: 4 | This is to show votes do polarize. 5 | THE COURT: 6 | I think we recognize in most elections, particularly 7 | where blacks and whites are running against each other that 8 | that is the case? 9 | MR. ‘STILL: 10 | We would point out to your Honor we have only two 11 or three instances in the twenty year period in which blacks 12 | have run for the City Commission and these elections we are 13 talking about are, in most cases, whites versus whites so 14 that we can show that there is a racial polarization. 15 THE COURT; 16 | Yes. Certainly we take common knowledge of that. When 17 | Mr. Langan ran he became identified with black voters and 18 | there was a certain polarization there. 19 | What I am saying, is when race becomes identified 2 | with a certain candidate, there is a tendency for polarization. 21 | MR. BLACKSHER: 99 Judge, I think we have felt that we have that 23 common knowledge, but what we are trying to do is verify that 2) | to the extent that we can. 25 THE COURT: on a computer I will ask you whether or not you would have 173 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA THE COURT: All right. (Plaintiffs' Exhibits 10 through 54, inclusive, was received and marked, in evidence.) MR. STILL: Q Dr. Schlichting, that's all the questions I have for you, at this time. Please answer Mr. Arendall's questions. THY COURT: You may proceed. CROSS EXAMINATION BY MR. ARENDALL: Q Dr. Schlichting, without ever putting one finger figured that in the days of school dessegregation issues, adoption of the Civil Rights Act, the voting rights act that there would have been some tendency on the part of blacks to vote one way and the whites to vote another. MR. STILL: Objection, your Honor. The witness is a statistician and not a political scientist or a politician. THE COURT: Well, if he reads the newspapers and follows current | \ 174 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Se Sm a ions ~tovso 2 || events, I think he can give some opinion, not as an expert, but as a layman. I think it is almost a matter of common knowledge. Go ahead. As Mr. Blacksher has said, you can give statistical 6 | proof to recognized facts. Go ahead. 7 A I would have to say yes, certainly. 8 || MR. ARENDALL: 9 0 Now, as far as the statistical proof of this thing, 10 let's take a look at’ it, if you will. | 11 | First, would you tell us what "R" square is? | 12 A "R" square is multiple coefficient of determination. | 13 Q As related to the regression analysis which you did, 14 tell us how it operates and what it's perimeters are insofar 15 as determining whether or not your regressiona analysis shows 16 anything worth looking at, insofar as the matters concerning 17 whether race or economics had a greater impact on the election? 18 A Regression analysis are also interesting. In looking 10 at -- as far as your particular question -- '"R'" square is 2% merely the square of the coefficient of correlation that we 24 have been talking about. The reason we used '"R'" rather than | 7” "R'" square is because Dr. Voyles had used '"R'" rather than | " "R" square. 24 "R" is on a base from zero to one and allows us to talk about a scale like -- the power of a variable in explaining FEDERAL STENOU] APHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 2 | wards? 3 | MR. BLACKSHER: 4 | I think that is what they showed. 5 | THE COURT: 6 All right. 7 | MR. BLACKSHER: 8 I am not going to stipulate to every one of them. 9 | 28 is our impression that they didn't carry many, if any. 10 | MR. ARENDALL: 11 | Q So, Dri Schlichting, "isn't it .falr to say that of | 12 the three black candidates in 1973, if they tended to get 13 any votes, they tended to get them from blacks, but didn't 14 get my appreciably? 15 A My understanding was that these were minor candidates, 16 yes. 17 Q Exhibit 50, 1973 City Commission runoff, Greenough, 18 using Voyles's data. What is the "R"™ square? 19 A Point three five one eight. 20 Q Exhibit 51, 1973 change of government referendum? 91 A Point:six four four. nine. 99 Q I believe that you told us that in the 1963 government 93 change that you found no substantial relationship between 24 vote and race, did you not? » | A I can go back and check that. I don't recall having - 1 1.76 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 180 | except with respect to the Langan races in 1965 and 1969, your regression analysis doesn't attempt to show anything statistically worth while except with respect to those races? A No, sir. What about the Outlaw one for '65; that was point seven seven, and the Luscher one, that was point seven eight? Q That was a 1965 race between Mr. George McNally and Mr. Outlaw, and Mr. McNally had been in office, hadn't he, for a good while? A I don't know. Q Were you in Mobile, at that time? A No, sir. 0 I guess, then, we get down again you don't know how to quantify factors such as Mr. McNally's conduct in office and any problems he and Mr. Trimmier and others had been having in that position? A No, sir. Q All of that is omitted from these statistics? A Certainly. Q Now, going back to what you said at the very beginning of your examination by Mr. Still, did I understand you to say that the reason that you directed Mr. Parker to use 1970 economic data in connection with certain races 177 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 200 and did not give an absolute mean income. It would say from one thousand to twenty-six hundred or something. It did not say the mean income is two thousand dollars. Do you follow me? MR. ARENDALL: No further questions. MR. STILL: Thank you, Mr. Parker. ¢ That's all. THE COURT: All right. You may step down. Why don't we take a ten minute break right here. { RECESS ) THE COURT: All right. You may examine the witness. WILEY L. BOLDEN A Plaintiff, taking the stand in his own behalf, and after having first been duly sworn to tell the truth, the whole truth, and nothing but the truth, took the stand and testified as follows: DIRECT EXAMINATION BY MR. BLACKSHER: | \ | I | 178 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Q May it please the Court, this is Mr. Wiley L. Bolden. He is eighty-three years old. He was born December 30, 1892 in Hale County, Alabama. He presently resides at 556 Bellsaw Avenue, Mobile. He is married and has three great grand-children. His education, he finished Tuskegee Normal, I guess it was called then, in those days, Mr. Bolden, in 1911. He is presently a member of the board of directors of the non-partisan voters league and he has lived in Mobile since 1923. Mr. Bolden, did you ever serve in the United States Army? | “A Yes, sir. | 0 When was that? A Nineteen seventeen, September,1917 to March, 1919. Q Did you serve overseas during the first World War? A Yes, sir. 1 did: 8) Where was that? A In France. Q What was your rank when you were mustered out of the Army? A My rank was sargeant. I held the rank of sargeant. They didn't have it classified then as it is now, but I was a line sargeant. 201 179 FEDERAL STENOGRAPHIC REPORTERS I P.O. BOX 1971 | MOBILE, ALABAMA no O n 0 Were you decorated as a result of your service in the Army? A Yes, sir. I was given -- I was sent something like a plaque. 0 What did the plaque say? A It said Columbia gives to another son a new accolade ‘of the chivalry of the Army. Wounded in action, September 4, 1918. Signed Woodrow Wilson, President of the United States. 1Q And you returned to the United States, you say, in 119197? A Yes, sir. Q And you moved to Mobile when? 1923? A April. 1923, Q After you moved to Mobile, or shortly thereafter, did you attempt -- your Honor, recalling your prior instructio to me we intend to profer some evidence of how Mr. Bolden was able to register and vote and the circumstances surrounding that. THE COURT: Well, I don't see anything before 1950 -- anything ‘after 1950 -- all right. Go ahead. MR. BLACKSHER: Q For the record, Mr. Bolden, you did register to vote in Mobile County in 1925? 180 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA = 203 1 2 A Yes, sir, "1:d4id. B | O And a white pharmacist, Dr. Ortman vouched for you 4 and you were allowed to register because you were a veteran; 5 is that correct? 6 A Correct. 7 Q But there were not very many other black registered 8 | voters during that period of time? "NA No, “sir. 10 Q Were the black voters who were registered during | the period 1925 to say 1945 organized in any way? i 12 11 A No. 13 q Now, Mr. Bolden, did you know Mr. John LeFlore? 14 | A did. 15 iQ Who was a Plaintiff in this case and died just a 16 few months ago? 17 A Yes. 18 0 Would you tell the Court how you and Mr. LeFlore, 19 | when you and Mr. LeFlore first joined together in a Civil 20 Rights organization? 21 A It was in April of 1925. We formed the Mobile | 22 branch -- we organized the Mobile branch for the national | 23 association of the advancement of colored people. | 24 Q Approximately how many members did you start off 95 with? 181 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Ten. | L P > 3 0 What kind of activities was the local branch of the 4 |IN.A.A.C.P. principally involved with during the period 1925 until after the second World War? ($2 ) 6 MR. ARENDALL: 7 Objection, irrelevant. 3 ||THE COURT: 9 | I don't really see any need in going into great 10 detail. 1: don't want to circumscribe.you.too much. It is 11 interesting, but I don't see how it will help us too much 12 unless you have some particular point you want to make. 13 MR. BLACKSHER: 14 The only point that we want to show is that the 15 local branch was not actively involved in the securement 16 for blacks... 4. 17 A During that period, the N.A.A.C.P., the braches, were 18 not allowed to participate in politics. It was against the 19 regulations of the body -- I mean, the national body. 20 Q But the local branch did become active in voter 21 registration in the second World War, did it not? 99 A Yes, we did. 93 0) Tell the Court what kind of activities the local 94 branch engaged in? A We engaged in the direction of our group being -- 182 | FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 i MOBILE, ALABAMA | oH 205 epee] 2 | going down registering and those who could -- well, at that 3 || time, they had to be vouched for, you know about that, and 4 | you know the restrictions. That was after the Boswell 5 | amendment was declared unconstitutional, and then in 1946 -- 6 | and then in 1948 the case that came up from --went up from 7 || New Orleans through a member of the N.A.A.C.P. 8 Q Davis versus Schnell? 9 A No. That is a Mobile case. 10 Q Oh, 1 am sorry. | nH 1A Mr. Schnell was the register here in Mobile, but 12 this man -- this man carried the Democratic party to the 13 United States Supreme Court. The suit involved the Democratic 14 party of the south who said it was then a private party. 15 Q You are talking about Smith versus Allwright? 16 A That is what I am talking about. 17 Q Were you one of the black voters referred to in 18 Mr. McLaurin's article which is already in evidence who went, 19 in 1944, and attempted to register and vote in the all white | 20 Democratic primary here in Mobile? | 21 A I am. John LeFlore, Napolean Rivers,me and any 29 number of others, Alec Herman and -- oh, any number of the older citizens, but we were debarred by it then, the then NO Ww W 24 Sheriff Holcomb. 2s 10 All right. Do you recall then the Davis versus 25 183 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Schnell case striking down the Boswell amendment? A Oh, yes, we do. Q Thereafter, was there some other activity in the legislature, that you can recall, where the Boswell amendment or something like this was attempted to be re-established in Mr. Joe Langan, as a state legislator, fought against it? A Yes, sir. But my memory does not serve me well enough to say who advocated that kind of legislation, but it was attempted and Mr. Langan, then a very fair minded and fine citizen, as well as one who répresented the people, he opposed it. Q Well, do you remember that that was about the time that Mr. Langan first came to the attention of the local branch as being one of the politicians who was acting in what was perceived to be in the interest of the black community? A Yes. Q What else did Mr. Langan do that caught the attention of the black community? A Mr. Langan asked the legislature -- in other words, he held up -- he was then a Senator from Mobile. He was State Senator and he held up all legislation there until the black teachers of Mobile County were given equalization in salaries. In other words, he equalized the salaries of the blac J 184 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA I 207 iH 2 || teachers of Mobile County and that, in my judgment, made him 2 | with me, especially, one of the most outstanding men in 4 | Alabama. 5 Q Was he thereafter supported actively by the local 6 | branch in his various election campaigns? 7 | A Yes, he was. All blacks who realize what he -- his 8 fairness toward them and that had -- I won't say that any way 9 || they supported to Mr. Langan because they should. | 10 Q Did the local branch -- well, I guess it was the 11 non-partisan voters league. Describe to the Court the 12 difference between the local branch and the non-partisans 13 voters league? 14 A During 1963, when Mr. Patterson was the governor 15 of Alabama, then, and the N.A.A.C.P. was sued and brought 16 into Court in Montgomery, Judge Walter Jones was the presiding 17 | Judge or Circuit Judge there, then, and he gave a judgment | 18 | against the N.A.A.C.P. for a hundred thousand dollars. In other words, the chief counsel for the N.A.A.C.P. refused to 19 | 20 turn over to him the list of its membership, because it was 91 commonly conceited that reprisals would be taken against | 99 aT} those who held jobs like teachers and what-not. | 73 So, Robert Carter was then the chief counsel for the | 91 N.A.A.C.P. and he refused and they slapped a hundred dollar 2s fine on him and he immediately appealled the case to the — | Rote. | 1 no 91 } 185 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA United States Supreme Court and, of course, we were held up for eight years. 0 What did that have to do with the non-partisans voters league? A When they debarred the N.A.A.C.P., the injunction Judge Jones gave against us debarred us from activity, because our case was pending in the United States Supreme Court. So, we went, what you might call, underground and organized the non-partisans voters league and we kept the work of Civil Rights going just the same. re ) What year was that? A Nineteen sixty-three to nineteen seventy-one. THE COURT: What years were those? A Nineteen sixty-three to nineteen seventy-one. MR. BLACKSHER: What happened in 1971, Mr. Bolden? A The United States Supreme Court gave, you know, the decision -- I mean, they ruled in favor of the N.A.A.C.P. So, the N.A.A.C.P. didn't have to turn over the membership list and the fine was set aside. Q But the nonpartisan voters league remained on and is still, today, is a separate branch of the N.A.A.C.P.? A Yes, sir. Very much so. 186 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 209 1 2 Q In the time you have been with the nonpartisans 3 voters league and before then, with the -- well, let's say 1965, and that is when you were in the nonpartisan voters 5 league, have you and the other members ever discussed or 6 attempted to encourage a qualified black candidate for the 7 Mobile City Commission? 8 LA I think we did. I am sure we did. 9 Q Do you recall who and when? 10 A Now, the cartwheel, by memory, doesn't click that well, 11 but I do know we discussed it and some persons did run or did 12 attempt to run, 13 Q You are thinking about 1973 when Ollie Lee Taylor 14 and Lula Albert and Alphonso Smith ran? 18: HA Oh, yes. I see I had forgotten them, but that -- 16 yes, I think you are right. 1 know you are, because I 17 remember Ollie Smith, because he is now in Florida. 13 iQ Before then, were you successful in getting any other 19 ||black qualified citizens to run? 20 ||A Not that I recall. 21. {0 Why not? 29 ||A Well, one thing, we felt that it would be futile, 23 ||because -- I mean, that year, when we knew if we ran a candi- 24 [date in Mobile -- in the City of Mobile, it would be an overall thing and we didn't have enough votes to elect Y37 | FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 210 2 |lanybody and, of course, we had to wait until;- in other words, 3 |lour political strength was not -- we didn't feel was well 4 |lenough up to advocate such a thing and I don't feel that same 5 |lway now, if you are going to take it from an overall standpoint. 6 ||I think it would be futile. 7. #0 Mr. Clerk, would you hand the witness Plaintiffs’ gs ||Exhibit 67? I don't think we have marked it now, but it is g ||{down there. Mr. Bolden, I want you to look at these documents 10 11 |/lwhich are various affidavits signed by black persons. One of 12 them is an affidavit by Henrietta Smith saying that she had 13 | been unable to register, because she had not passed the | 14 ||State voting test on August 3rd, 1964. 15 Another one, James Brooks, dated August 5, 1964 16 ||saying that he had been denied the right to register as a 17 voter, because he incorrectly answered two of several different 18 questions of government. w Similar affidavits by Joe 0. Dickson...... | 9% THE COURT: | 91 Are you referring to the State government? I | a understand there were no Federal registrars in Mobile? i MR. BLACKSHER : ” Yes, sir. Another one by Joe O. Dickson, dated August 3, 1964. Another one by -- well, I am aorry. Here is to a n 188 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA vim] a petition dated June 16, 1964 addressed to the Mobile County board of registrars signed by Mr. LeFlore and others; do you see that? A Yes,” sir. 1 do. 0 Concerning the tests that were being given to persons as they attempted to register? A Yes. Q And finally, an affidavit by a Carrie Louise Marshall dated February 11, 1965, saying that she went to the board of registrars and was asked there to sit in a separate room where negro would be registrants would be compelled to sit and take their tests, that she obeyed the admonitions of the white woman official of the board of registrars and went to the negro registration room. Can you verify that these are records that we have taken from the files of the non-partisan voters league? A I can, MR. BLACKSHER: We move their admission, in evidence, as Plaintiffs’ Exhibic 67, your Honor. MR. ARENDALL: If your Honor please, they are clearly hearsay. I have no objection. I am satisfied there was some discrimi- nation against them. ] 189 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA MR. BLACKSHER: We offer them to show the latest date on which we could: find-overt: .v..?s THE COURT: What is that date? MR. BLACKSHER: February, 1965. MR. ARENDALL: All except the last one relate to occurrences in 19647? MR. BLACKSHER: That is correct, except the 1965 was a segregated registration line. 0 Mr. Bolden. That's all I have. One of the other lawyers may ask questions. THE COURT. Admitted in evidence, and you may cross examine him. (Plaintiffs' Exhibit number 67 was received and marked, in evidence) CROSS EXAMINATION BY MR. ARENDALL: 0 Mr. Bolden, have you held any place other than that of a director of the non-partisan voters league? — 2312 190 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 213 24 25 A Well, we didn't have so many offices there. TRE: COURT: Have you ever been president, vice-president, secretary or treasurer? 4 No. ‘Judge, I: haven't; ino, sin: MR. ARENDALL: | | | | QO Have you been one of those who have determined who ‘would be endorsed on the pink sheet? | | { | | | | | A I have. Have you considered that the blacks of Mobile have re ) followed the endorsements of the non-partisan voters league as set out in the pink sheet? A No, sir. Q You say they have not followed them? A If they followed them, they followed them of their own free will and accord. 0 Well, whether -- I understand that each..... | THE COURT: | The question is, though, the thrust of it is, Mr. Bolden, is it your judgement that the black voters have substantially followed the recommendations of the pink sheet? A Yes, sir. THE COURT: All: right. 131 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA A Ido. MR. ARENDALL: 0) In your opinion, is it proper to characterize the black voters of the City of Mobile as now constituting a block vote? A No, sir. 0 In your opinion, would such characterization have been proper and, if so, during what periods of time? A I don't think that -- I don't: think that it had ever been so. I think that the people -- the black people of Mobile, who voted -- who went to the poles to the various wards where they voted, they voted their convictions and the non-partisan voters league put out a ballot and simply said that these are the men that we have screened and have taken their positions as to what their platform would be if they were elected to the various offices to which -- of which they sought, and the people believed in us, because we did not give them any misinformation. MR. ARENDALL: Q Well, is it fair to say that voting their convictiong the black individual voters did what the pink sheet requested them to do? A Most people who go to the poles now of all groups -- I feel this way about it, that most people that go to the | Tela atin LOG Lh 1 192 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 215 poles of all groups, they go there and vote, because somebody has given them some information about the attitude or the position of the candidates who is running for office and I think our people did the same thing. They didn't vote them, because we told them -- they didn't go by that sheet, pardon me. THE COURT: He is not suggesting coercion. What he wants to know, is do the black voters usually vote for the same candidate? A No, sir. THE COURT: All right. Go ahead. MR. ARENDALL: Q Mr. Bolden, do you remember talking to your lawyers and I don't know which ones you talked to, but about answering some interrogatories that we put to each of the named Plaintiffs in this case? A I guess I do. Q Do you remember telling them how you wanted to answer those questions for yourself, telling them what you thought the answers were? A I did. THE COURT: Mr. Arendall, I [sually ask the lawyers to stay at 193 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 216 24 25 their counsel table unless they have some document they want to show to the witness. MR. ARENDALL: I was going to let him look at it. 'Q I would like for you, Mr. Bolden, to look at interrogatory number 40-A and tell the Court whether I correctly read this. In vour opinion, is it proper to characterize the black voters of the City of Mobile as now constituting a block vote. Now, I want to show you the answer that your attorneys filed on your behalf, and there is a paragraph here where you will see that they say they thought this was an objectionable interrogatory, but look at the "A" and do they say and do you say to answer that question, ''Yes'. Is that what the answer says to your interrogatory? A I don't know. It doesn't have my name there. THE COURT: No.” That is not the Lhestiion: Does 40-A read "Yes"? The Court takes judicial knowledge that it reads yes. I just read it there, really. MR. ARENDALL: Q Forty - B, "In your opinion, would such characterizaf ever have been proper and, if so, during what period(s) rion 194 | FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 MOBILE, ALABAMA p) of time,'? And was your answer to that, '"B',6 ''yes, from the 3 | time that blacks were disinfranchised to the present." $ | Was that your answer, sir? | 5 [I THR COURT: He is asking you, Mr. Bolden, if that is the answer that appears here? 2 | A I would like to make that a little more clear to | | 0 || me. | 10 | MR. ARENDALL: | 11 Q Excuse me. Tell me whether or not that is the : 12 answer? | I 4 || THE COURT: | 14 | I can see it does. | 15 A Yes. | 16 THE COURT: 17 Who are they propounded to and whom are they signed | ! | 5 [°¥ | \o || MR. ARENDALL: | | 20 Judge, they were all signed by counsel, by agree- | | 9 ment of the parties. | ] ,, | THE COURT: | a They were addressed to Bolden and others? > | MR. ARENDALL: st | That is correct. 24 25 195 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 218 | THE COURT: All right. MR. STILL: Just for the record, your Honor, I believe they are signed individually. THE COURT: Well, let me see the answers. MR. ARENDALL: I beg your pardon, on the back of what I have here is your signature here, isn't it? A That is my name. Q And that is in that same sheaf of papers, the answers that I just asked you about? A What does this say? MR. ARENDALL: That is what they call an affidavit. A I know it is an affidavit, but what does it pertain to? Did I sign that affidavit? THE COURT: Is it your signature? A That is my signature, yes. THE COURT: Do you recall signing it? 196 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA i. ] AE | 1 2 | A I do, | 3 | THE COURT: 4 | All right. Just one minute. | 5 | Have they been introduced in evidence? 6 | MR. ARENDALL: 7-H No, ‘sir, 8 i THE COURT: 9 They should be marked, for identification. 10 A I would like to see if I made that statement indivi- 11 dually. 2 || THE COURT: | | 13 Mr. Bolden, that is what it shows. These show | 14 | the answers made by you and you signed it. | 15 A Yes, sir. | 16 | THE COURT: 3 All right. ] 18 A AY) right 4 Thendiv'isSerbof that Tesloned it and | io to anything else, because of my memory I will retract that. | 20 Yes. | ,; || THE COURT: | 2” You were born in what year? | 3 A Eighteen ninety-two, December 30. | 21 MR. ARENDALL: | Q Mr. Bolden, the non-partisan voters league endorsed | | (g o) I 1.97 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Mr. Taylor and Mr. Smith in their campaigns for the City Commission in 1973, did they not? A Y think.so. Q Did they endorse Lula Albert? | A YI am not sure. 1 can't answer that. I don't remember, Mr. Arendall. Q You knew Mr. Taylor, did you not? A Nes, sir. Q You did not know Mrs. Albert or Mr. Smith,.did you? A Now, just a minute. THE: COURT: Give him time. He is an old man. MR. ARENDALL: Q Let's take them -- did you know Mrs. Albert before she became a candidate? A Are these black candidates? Q Yes, sir. A What year was this? 8) Nineteen seventy-three. A To the best of my memory, I cannot recall, to be truthful, and I couldn't say anything that I wouldn't stand on, I wouldn't. So, I don't remember the non-partisan voters league endorsing these candidates and, so far as I am concerned, in ge 220 24 25 MR. ARENDALL: | to his answers? | A No. I must say I think I had been operated on in 1972 and was in the Veteran's Hospital in Birmingham, Alabama, Mr. Bolden's answers to interrogatories, by saying he did 193 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA SE AR 0 May I ask counsel if they are willing to stipulate at that time. THE. COURT: All right. MR. ARENDALL: May I ask counsel if they would stipulate that know Mr. Taylor but did not know Mrs. Albert and Mr. Smith and did not support Mr. Taylor? Well, that is all right. No further questions. MR. BLACKSHER: Well, I would like to say, for the record, Mr. Bolden has signed the interrogatories, but the Court will see that there were a number of interrogatories filed and each one is made up of a set of interrogatories which were drafted by the lawyers. We take responsibility for them, although they were approved by the witnesses and an appendix, in each case, of individual information and I would like to say, for the | { | 199 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA record, that the way we interpreted the question and the interrogatory itself pertained to, as we understood the question, to whether or not blacks had voted in a polarized fashion. THE COURT: All right. Go ahead. MR. BLACKSHER: No further questions. MR. ARENDALL: No further questions. THE COURT: You may come down, Mr. Bolden. MR. MENEFEE: Your Honor, we would like to call Mr. James Buskey to the stand. JAMES E. BUSKEY the witness, called on behalf of the Plaintiffs and after having first been duly sworn to tell the truth, the whole truth, and nothing but the truth, took the stand and testified as follows: DIRECT EXAMINATION BY MR. MENEFEE: 222 | was the only one there. 200 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA There were none of this nature. However, there was, during the runoff, the week prior to the runoff, literature that was distributed by my opponent that I considered to be racially oriented. 0 Could you describe that literature? A Yes. It was a full page tabloid called the '"Leader', and on the front of it, the full page tabloid, my picture was there and covering about a third of the page and some wording to the effect that this is the man that ran second to me. The literature was, of course, printed by my opponent and that, to me, was an indication that, in my judgment, it was racially motivated and I can go into my reasons as to why I thought so. 1 had, iat one time, the tabloid, “but'l lost it. But some of the wording, although nothing specific about race, the wording that was on the tabloid said something to the effect, help me to win the election, and the implication was that ‘I ‘read into it that ifI did not ‘win, ‘this would be the representative of Senate district thirty-three. Q And your picture appeared there? A On the front -- there were other pictures, but on th inside, indicating pictures of campaign workers and campaign workers of my opponent, but on the front of it my picture 11 % 24 25 201 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 226 () Do you know if this tabloid was distributed througho Senate district thirty-three, but only in some areas? A It was not widely distributed. There were two areas we were able to pinpoint the distribution of that literature. Q Where was this? | A One was the Eight Mile -- Whistler area and the othe one was the Chickasaw area. Q Are those areas predominantly white? A Yes, sir. I think Chickasaw may be virtually all white. Q What can you tell me about the racial composition of Senate district number thirty-three? | A The composition of Senate district thirty-three is generally fifty percent white and black. It might be as high as fifty-three or fifty-four percent black. HL Is that population you refer to? A Population, yes. THE COURT; Fifty-fifty, black and white, or maybe a fifty-four - forty-eight black and white; is that right? A Right. Let me -- because I think you are exactly right in terms of population. It might be a little high something like fifty-six or fifty-seven in terms of popu- lation in favor of the blacks. ut 202 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 24 of death for that candidate if he was forced into a runoff. in my statement. If white candidates sought to address themselves to concerns of black residents, in my judgement, | of action, because they would have what you call a white by addressing more forcefully those issues? A Very definitely; yes, sir. Q Do you have an opinion as to why they didn't address those issues more forcefully if they wanted the votes? A On the part of white candidates who actively sought or who would actively seek the black votes, in my judgement, that if that person -- if those people are interested in winning, they would not pursue that course backlash in the white community, in my judgement, yes. Q One student of local politics, Dr. Voyles said that a substantial black vote for a white candidate would be a kiss Would you agree with that assessment? A I agree. This is basically what I tried to pinpoint | they will receive a white backlash. THE COURT: All right. Let's knock off until tomorrow. Be here at nine o'clock tomorrow. ( COURT ADJOURNED ) 203 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 237 A Prior to 1974, in my estimation, it would have been a waste of time and money. One would have to run, at large, in either the City or County and, given that set of facts, the chances of winning the City election or County election on the part of a black would be nill. Q The Prichard election, City elections are at large, are they not? A Yes, sir. | 0 And many blacks have sought office for the City elections in Prichard? A Yes, sir. | Q What is the difference between Prichard and Mobile < or Mobile County? A In the City of Mobile in Mobile County, the voting strength of blacks is substantially lower than that of whites| In the City of Prichard itself you have a black population that is in the majority. Whether that is about fifty-five or fifty-eight percent, I am not sure, but it is a majority and consequently the potential voting strength of blacks in the City of Prichard is in the majority. A black candidate running for an election in the City of Prichard has at least an equal chance of success at being elected and I think they are good. Q Do you know either Mr. Alphonso Smith, Mrs. 24 25 204 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 242 race this past election? A We have five who actively participated. There were seven who qualified. 0 “Jas there a heated campaign? A It was a very vigorous campaign. There was no issues that burned in terms of controversy, but it was very vigorous in the sense that we had five people actively campaigning for votes and, to this extent, I guess you could say heated, but not heated in terms of controversial issues. 0 Was there, to your knowledge, any door to door canvassing or offers to take voters to the polls and sort of a great deal of direct contact between the candidates and the voters? A Yes, sir. At least one, perhaps two. I know for a fact that one candidate did offer to take voters to the polls toc vote and, as well to the Courthouse to register them. We did extensive door to door campaigning and I am sure, to some extent, some of the other candidates did some, but not extensively. The offers to take voters to the polls and, you know, register voters to register. 0 Within the black community what are some of the ‘major endorsing groups? A I would imagine that the two major endorsing groups would be -- one, the non-partisan voters league and, two, 205 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 246 only reason I interrupt, the projected trial time, which is rather lengthy and if these matters are between black candi- dates and majority black districts, I just think we are wasting time. If you had a black and white candidate, you might have some relative issue. It is extremely interesting. I. like polirice, bur. ..coovmb MR. MENEFEE: Yes, sir. I was following this line of questioning to show a black perspective on the strength of the non-partisan voters league. THE COURT: Well, if it is between blacks, what help does it have to us? : MR. MENEFFE: All right, sir. THE COURT: I think it would have some relevance if it was white and black votes or candidates. MR. MENEFEE: Yes, sir. 0 Mr. Buskey, do you have any opinions as to why more blacks don't seek election to the City Commission and the County Commission and the County School Board? A Yes, I have. Running at large, they wouldn't have 206 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 247 a chance. The way it is presently constituted, running at large would be a waste of time and money and emergy. 4 Do you think many more blacks would seek election to these offices if they thought the chances were better? A Yes, sir. 0 We have discussed the interest that was created in louse district ninety-nine by the race this past May. There were many other races being run at the time for County Commission and other posts, were there not? A Yes, sir. 0 In those races, County Commission, in particular, can you name any candidates that made any appeals to the black community for their votes, any substantial appeals? A Yesterday I tried to indicate that white candidates in those races did campaign on the black communities. THE COURT: Let's don't go over the same thing. I remember what you said yesterday. If you have something additional to that, you may. MR. MENEFER: Mr. O'Connor, would you hand Mr. Buskey Plaintiffs’ Fxhibit number 3, please? I am sorry, I mean number 4. Mr. Buskey, Plaintiffs’ Exhibit number 4 shows voter turn out in predominantly black wards and predominantly 207 | FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 | MOBILE, ALABAMA 2 white wards during elections this past May? 3 THE COURT: 4 Yhat is the number of the Exhibit? 5 MR. MENFEFEER: 6 Plaintiffs’ Exhibit number 4, your Ponor. 7 THE COURT: 8 All right. 9 R. MENEFEE: 10 0 There are five wards listed as predominantly black 11 in the lefthand columm, four of them being within Rouse 12 | ninety-nine? a iA Yes. mw 12 The turn out figure, rate of turn out, for those 15 four districts reflect twenty-eight point four percent for 16 County Cormission place number one and then, taking the one 17 other predominantly black district, district number 18 thirty-five - one zero three - one, which, I believe, lies 19 in representative Cary Coorer's House district? 20 A Yes. 91 nN It shows a turn out of twenty-two point seven 99 percent ~- see it with the asterisk in the middle of the page? 91 A Yes. 7 5 And then for the runoff it falls off to sixteen point five percent? 208 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 2 cca S240 1 2 A Yes. 3 0 It shows a difference in the runoff election from Pe 4 your race was being run against Mr. Flannagan of eleven -- 5 almost eleven percent between the black districts and 6 ‘louse ninety-nine and the one black district we have been 7 able to sample outside of House ninety-nine. 8 Do those figures agree with your general observa- 9 tions on voter interests in the black community? 10 A Yes, sir. 11 0 Okay. That's all on that. 12 I would like to ask you a few questions further 13 about -- referring to Plaintiffs' Exhibit number three. 14 Again, we have predominantly black wards and 15 predominantly white wards. On the second sheet we have turn 16 || out figures on the second sheet of it we have turn out figures 17 for 1973 City Commission race and we see, for example, place 19 ‘IR. ARENDALL: 20 I beg your pardon. What Exhibit are you looking at? fR. MENEFEE: This is number three. Place one runoff, which was the contest between Mr. Greenough and Mr. Bailey. You see a turn out differential between the black wards and the white wards of eighteen point seven percent for 209 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 288 (3 time. Because of the quickness on which it was focused, I think that, to a large extent, many blacks felt that it would continue and consequently the polls were forgotten and a lot of other processes. THE COURT: All right. MR. MENEFEE: Your Honor, there will be other witnesses who can discuss more fully the Joe Langan race in 1969 and Mr. Langan, later at the County Commission in 1972. We have some turn out figures in our Exhibit number 3 that reflect blacks turning to the polls in substantial numbers. TRE COURT: All right. You may come down. Whom will you have next. MR. BLACKSHER: Mr. Joe Langan. JOSEPH LANGAN the witness, called on behalf of the Plaintiffs, and after having first been duly sworn to tell the truth, the whole truth and nothing but the truth, took the stand and testified as follows: Bo 210 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA DIRECT EXAMINATION BY MR. BLACKSHER: 0 May it please the Court, this is Mr. Joseph NH. Langan. He is sixty-four years old. Presently resides at 267 Houston Street, Mobile, Alabama. He has been a resident of Mobile, Alabama, his whole life. He is presently a practicing attorney in Mobile. Mr. Langan, tell the donrt the offices you have held during your career as a public servant in Mobile? A Well, I served in the Alabama House and the Alabama Senate and Mobile County Commission and the Mobile City Commission, as far as elective jobs are concerned. Of course I was on the board of education and numerous other positions and other appointive positions. 0 You were elected to the Alabama House of Representatives in 19397 A Right. Q And served one term? A Yes. Q You were elected to the Alabama Senate in 1947 and served one term? A Well, the election was in '46 and the term began in '47 and I served one term; yes, sir. 289 211 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA — a A a — ef 0 And you were an elected Commissioner of the City of Mobile from 1953 till 1969? A Yes, sir. 4, And you said you served briefly as a County Commissioner. Would you explain that? A Well, I served a little over one year on appointment as a County Commissioner. 4) That was in 1950 and '51? A Right. 9, So, altogether you won, through the elective process, one term as a State representative, one term as a State Senator and four terms as a City Commissioner? A Yes, sir. 0 And vou were defeated three times at the polls? A Yes. 0 In 1951 by Mr. Tom Johnston and that race was for the. uw. A State Senate. Q In 1969, by Mr. Bailey for the City Commission? A Yes. N And in 1972 in a runoff with Mr. MCConnell for the County Commission in the Democratic primary? A Yes. 212 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA a 1 2091 » 0 Mr. Langan, do you attribute your loss in 1951 to 3 Mr. Johnston in any way to racial factors? 4 A Yes, sir. I feel that that was one of the main 5 factors in that election. 6 0 Specifically how did it come into the picture? 7 A Well, I had been rather critical of some of the 8 racial practices in Mobile from the time I got out of the 9 service and was elected to the State Senate regarding the 10 bus situation in Mobile and also in the State Senate the 11 Boswell amendment had been declared unconstitutional and 12 they introduced a new amendment to regulate voting in | 13 Alabama and tried to cure some of the defects that the Court 14 stated had existed in the Boswell amendment and four other 15 Senators and myself filibustered for several days and worked 16 until we finally defeated it by filibustering it through the 17 end of the session of the legislature and, of course, there 18 was other action that I had taken on helping to bring about 19 the equalization of pay for both black and white school 20 teachers in the Mobile County school system. 21 THE COURT: 929 The Boswell amendment was really a literacy test 93 aimed at blacks, wasn't it? 24 A Yes, sir. 213 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA occasions, to deal with Mr. LeFlore and hear his complaints : 292 1 2 Q And you are saying that those actions you took on 3 behalf of equalizing black and whites hurt you in that election? 4 A I am sorry, I didn't get that. 5 0 Those actions hurt you in 19517? 6 A I think, at that time, it very definitely did. From 7 correspondence I received and from things in the legislature 8 and all it played an important part in that election and, of 9 course, at that time, very few blacks were voting. 10 0 That was still at the beginning of your political 11 career, so to speak. 12 What lessons did you learn from that campaign on 13 racial overtone issues? 14 A Well, I don't know. As I say, sometimes I began 15 to realize that no matter how high the ideals you might 16 have, sometimes you have to be a pragmatist and realize there 17 are certain things more important to a person's economic 18 livelihood and things of that nature. So that there are 19 areas that you should work in that can bring about good and 20 still don't bring a lot of clash and a lot of animosity. 91 nN You knew John LeFlore? 99 A Yes. 93 3 And during the time that you were on the City 94 Commission of Mobile you had occasion, didn't you, on several 214 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA (3 On a | about changes that he was seeking on behalf of the N.A.A.C.P. A That {8s right, sir. 0 Were there some occasions when you told Mr. LeFlore that some of the things he was asking were just more than you could provide or seek as a giey Commissioner? A Well, in several conversations with him I pointed out that T felt that there were things that the N.A.A.C.P. and other organizations were advocating that really from an ideal standpoint they were wrong and things that needed to be corrected, but as far as the black people in the community were concerned, I thought that there were other things much more important for them to attain and, therefore, the things that would really help them economically and help them to obtain jobs and a fuller 1ife were more important than the pure ideals of what our government should be. nN Concerning those things that you thought could not be accomplished through the political process, did you ever advige Mr. LeFlore that he should try to use the Courts to seek re-address of those grievances? A In discussing with him, he very much believed in legal process and in proper proceeding to obtain the ends that our government established on the principal that if we do have laws that are in conflict with the constitution and denied rights to persons that are guaranteed to them, the 215 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 1 2 places to find re-address is through the Courts and not 3 through public violence and things of that nature. 4 We did many times discuss if changes were needed 5 that he should go to Court to bring about those changes. 6 The things that we could do within government we 7 tried to do, and the things that we felt were issues that 8 should he decided by the Courts we advised he should go to 9 Court. 10 || 0 In any event, you did run successfully for the 11 City Commission in 19537 12 A Yes, sir. 13 2) And stayed in office until 1969; that is, four 14 terms? 15 A Yes, sir. 16 8, Did the racial issues surface in any of the elections until 1969? A Well, it came up some in the 1957 election. Of course, as the issues grew and time went on and, of course, they became much more the focal point of pretty near every political campaign we got into in the '60's with the Civil Rights movement and other activities and it was brought to the attention of more and more people and people began to make thelr decisions based a lot on their position on racial questions. O v =] 216 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 0 Do you think that the electorate made their decisions as between you and Mr. Balley in 1969 along racial lines? A I think it was a determining factor in the election; ves, sir. Y The Court has just inquired of the last witness abou the fact that there appeared to be a drop-off in the black wards in support of you in that 1969 election against Mr. Bailey. Would you explain what happened? A Well, there was an element in the black community here that became very active about that time in the Civil Rights movement in the community and they took the attitude that anyone who didn't do everything that they wanted done was a racist and in their papers they condemmed me for being a racist and they got out and worked to try to -- their philosophy became that there is no one in the City Mall or no one running for City Commission who is worth voting for, and, therefore, don't vote. They put on a very active campaign to keep the people from voting. As a matter of fact, many people were standing in front of the wards taking pictures of people that went in and I was told by many people that tried to go vote that they were threatened. 21.7 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 296 0 Was this the NOW organization that was associated with Nobel Beasley? A Yes. 8) Did Mr. LeFlore and the non-partisan voters league endorse you in that election? A Yes. 3 Did they attempt to rally the support of the black community for you? A Yes. 0 Would the Clerk please show Mr. Langan Exhibit 61, the Exhibit that we were looking at a moment ago. Your Honor Plaintiffs’ Exhibit 61 is in one exhibit, a large number of newspaper articles that we have copied in exchange with the Defendants and I would like to try to use them as one Txhibit, if there is no objection, just to simplify matters. THE COURT: Fine. let's take a fifteen minute break here. (Plaintiffs' Exhibit number 61 was received and marked, in evidence) { RECESS ) THY COURT: 218 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 24 25 It was only about seventy-five percent of what voted in 1085. “) And it is also true that the voter turn out in the black wards were substantially less than had been expected? A Yes. i, And that was attributed, you said in large part, to this boycott that an organization in the black community organized? A T think that had definite effect on it. Of course, as I say, the total vote was down from what it had been; it was down even more so in the black wards. In other words, the wards I just enumerated, compared from 1965, they dropped from six thousand to three thousand some odd votes, about twenty-eight hundred vote decrease. THE LORD. Almost half less? A That's right. “R. ARENDALL: Would you give me those figures? A In the wards that I enumerated in 1965, in those wards I received six thousand four hundred and seventy-nine votes. In 1969 I received three thousand six hundred and ninety-~seven votes. 219 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 300 MR. ARENDALL.: Thank you. R. BLACKSHER: 0 What other factors were, in your opinion, accountable ~~ accounted for the total reduction in voter turn out? A Well, we had just had the hurricane the day before. I think that accounted for some of the people not voting, plus the fact that I think that there was a certain amount of apathy. More people were satisfied with the operation of the City Commission than what they had been in the term hetween '61 and '65. I think there has been a lot of criticism of the operation of the government between the '61l and '65 term and, therefore, more people were interested in bringing about a change where in 196% they were fairly well satisfied with the governmental operation and, as a consequence, more people so to the polls to vote against people than what they do to go to the polls to vote for people. As a consequence, there is not a lot of opposition to the people in office and vou won't have as good a turn out as they do when you have that opposition. THE COURT: The interest of change must have not been directed against you in '65. It must have been somebody else? ~~ Ln FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA A Yes, sir. MR. BLACKSHER: 0 In fact, Mr. Bailey was your only opposition in the election; is that correct? A In '69. In '65 there were four or five that ran against me, at that time. THE “COURT: Were any of the incumbents defeated in 1965? A Both of them other than myself; yes, sir. *R. BLACKSHER: nN The hurricane you are speaking about was Hurricane Camille, of course? A Yes. 0 Explain specifically how that reduced voter turn out, in your opinion? A Well, it had caused some slight damage around the Mobile area and also a number of people that owned homes across the bay had damage from water, damage along the waterfront there, and many people had gone over to check. In other words, it was the first day they got to go across the causeway to check on their property and there were a lot of people cleaning up limbs and debris and things around their home where the wind and rain and everything caused debris. i 221 i FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 I MOBILE, ALABAMA : (¥ 3 2 I think they begin on page forty-eight and page 3 forty-nine. 4 A Of course, there are some write ups there that 5 concern it. The first ad here, it looks like is one of mine 6 on page or part of one of mine on page forty-six. 7 n This is vour ad? 8 A Yes. And then forty-seven is part of my ad and 9 forty-eight is an ad of my opponent, ves. 10 a And so is forty-nine? 11 A Yes. 12 0 And Fifty? 13 A And page fifty. 14 0) All right, sir. Page forty-nine is an ad that shows 15 you, a picture next to that of Mr. LeFlore, and says, "Will 16 you let this pair run your City for another four years?" 17 referring to Mr. LeFlore as a person that was appointed by 18 you to the Mobile Housing Board? 19 A Yes. 20 A) Did that kind of an ad cost you votes in this 91 election? 99 A I don't thin!’ there was any question. It would have 93 cost me votes in white wards, yes. i) You were, for a certainty, during that election, were ragged, as it were, with the black votes; is that correct? 222 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA A Yes. 0 Nevertheless, you say you believe you could have won if you had had a solid black turn out? A Yes. If the black vote had turned out any where near the number that had turned out four years previously I would have had a plurality in that election. THE COURT: Let me ask you a question. A Yes, sir. THF, COURT: Now, you started running for City Cormission in 19517 A Fifty-three. TIE COURT: Fifty-three. You had two previous elections before the '65 election? A Yes, sir. THE-COURT: When did the black vote first become a significant factor in elections. A It was beginning to build up a little bit in '57. Actually it was 'fl when they were beginning to put on some voter registration programs. T™T COURT: Do you have any recollection of what the total 223 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 310 5 Hdn't quite work out. Nn Is it fair to sav, on balance, the major factor contributing to your defeat was the racial issue? A That and apathy, the peorle not voting. (@ )] ) Nineteen seventv-two you ran for the County Commission E and got into a runoff with Mr. McConnell in the Democratic nrimary, which vou lost, correct? 8 9 A That's right. - 4 ould you say that race and racial issues played an v imnortant role in your defeat there? " A T think it plaved an important role. Yowever, you ” iad there an entirely different constituency and there were 2 nany other factors involved in that election. r In other words, there were many communities in the - outlying communities, the City officials of those communities = T had opposed in trying to work out fiscal matters that i would have been te the benefit of the City of Mobile and there rere areas that TI had brought about the annexation to Mobile " *hat had surrounded those comrhmnities and, therefore, they 5 were fearful -- and IT had taken the stand that the better and : most efficient kind of government was a metro form of govern- i nent, and they were fearful of that and, as a consequence, 4 T had a lot of opposition in these commnmities that had nothings particularly to do with race. (3 ) In O v 224 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Lia) THE COURT: What year was that election? A illneteen seventy-two. But the racial issue, as I say, it was played up and my opponent did use it as one of the main thrusts in the campaign and, particularly in these communities I am talking about, many of which were the people that had fled from the Citv to get away from the racial situation and it added fuel to the fire. I think the racial issue did play an important role in the campaign. # For the record, if you will look at that Exhibit 61 again, pages fourteen, fifteen, sixteen, seventeen, nineteen, twenty-one, twenty-two, twenty-three, twenty-five and twenty- six, and that's all I see relating to Mr. McConnell's ads; can you identify them as ads from that campaign? A Yes, sir. As I say, you can see this many of them -; of course, a lot of them were just absolutely -- well, taken out of context, but, as I say, a lot of them were thrusted toward the racial cuestion. 3 Yow, there was no black boycott of the polls in NO. m a o> Ir CoOnT. Dlack what? ry Tr {tI E33, BILAC SHE FN 225 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 212 (@ )] A ell, as T say, I received, within the City, a good vote. It was just a question of, as Mr. McConnell here pointe Boycott, your Honor. 0 How do you distinguish the results in 1969 and 19727 out in one of his ads in the first race, in that election he enumerates two, four, six, eight of the group of wards that T enumerated awhile ago. i As predominantly black? A Yes, and In this election against Mr. McConnell I received thirty-seven hundred and twenty-six votes; whereas in the '6? race T only received thirty-six ninety-seven in all of the black wards. So, as I said, had T gotten this ind of vote then In the '69 election, it would have made the difference. 2 My point 1s, it didn't seem to do you any good in 19727 A Yo. It did not. It was a different kind of constituency and it involved other issues and problems I had created for mvself in those outlying areas. In other words, when I had moved out of the limits of the City of Mobile and brought in that opposition, plus the fear of the people of Chickasaw, Saraland, Satsuma, “fount Vernon, Pavou la Ratre, and so forth. In other words, the neople in office down there had felt that I was trying 226 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 318 . 9 that you think you could have won in the City wide race and 3 T guess you are saying in this County wide race, even though you were tagged with the black vote, is that what you are saying, other circumstances being different? A Yes. IT would say if we turned back the pages of time to when I ran for State Senator, something back in those times, when I hadn't been involved in some of these issues with the smaller communities and had brought about changes that were detrimental to them where I could have gotten any kind of break at all in the County and then with | a good vote in the City I could have been elected. A, Could a black candidate in a City wide or County wide race get elected? A Well, so far, they haven't and it is most difficult to see -- I don't know whether circumstances will be changing) but so far none has been. i$ You are not willing to express an opinion on it? A Well, I don't think they could. I mean, the evidence pt © speaks for itself. They haven't been. So, I can't conclude other than the fact that they couldn't be, because there have been several black candidates who have run for County wide position who were iminently qualified and should have been and could have been elected, but who were not. So, as I say, I feel that the opportunity had been there. 227 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 310 There were men, as I say, that were well qualified running for school commissioner and things of that nature who were not elected and so, therefore, I just feel they could not, as yet, be elected in Mobile County. THE COURT: Mr. Langan, has there been somewhat of a polarization of votes and is it more or less true or not that with polarization that is difficult for black candidates to be elected and increasingly difficult for white people to be elected in black majorities? A Yes. TI think so. As I say, I think it, of course, depends a lot on the person. THE COURT: I guess the thrust of my question is has there been somewhat of a marked polarization? A Yeas. TI think there has been some break down, although, in some of your areas and the schools and younger people, there have been blacks that have been -- blacks that have been elected in communities that were mainly white, like the University of South Alabama. I mean, there have been many people out there and I was out ...... THE COURT: You mean in school politics? A Yes, sir. 223 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Ww O TRE COURT: All right. You expect that to translate into ..... A Yes. I think there is a change taking place. I think possibly Murphy High School is a majority of white students there and yet their president of the student council for the coming vear is a black person and the president, last vear, was a white person. I spoke at the change over from one regime to the other and, as I say, there, I think, it shows that the students are willing to elect a person irrespective of their race. MR. BLACKSHER: 9) Mr. Langan, I don't want the record to seem to indicate that the non-partisan voters league in these black commmities in general supported you just because of what you did in the 1949 legislature for equalizing the pay of the black teachers. Were there specific issues that vou supported that had special uphill to the black communities during the '60's when you were a City Commissioner? A Well, I think no matter whether it is a psychological or ideological or economic benefit, I think most people do vote for people because of something that either they get or something they do. I think, of course, that there were many people in 229 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 32 the black commumity that voted for me, because while I was in the City Commission we paved many streets in black neighborhoods who never had a paved street before and put water and sewer service in those areas that didn't have it before and parks in those areas that didn't have parks hefore. I think there are many things that happened or that we had pledged ourselves to do that brought about a vote in those commmities. 4, Were you consistently endorsed by the non-partisan voters league and, of course, they didn't come on the scene until when, as an organization? A Hell, it was on up in the latter part of the '50's hefore they really became real active. As I say, they had participated before, of course, but they didn't have the strength. There hasn't been many black voters in the community due to the restrictions on registration and other things and it was only after some of those things were broken down and they were free to get registered to vote. N What about the so called pink ballot? When did that first appear? A I don't know exactly when. n Were you ever endorsed -- you were, weren't you, on the pink ballot? 230 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 3 2 A Yes. Q Can you describe to the Court the process that you went through to ask for and obtain that endorsement? A Well, I didn't ask for it. They endorsed me without my asking for it and they, just like the newspapers or other groups, they set up a ballot on which they marked the person that they felt should be elected to office and T was one of those that were on the ballot. 0 Did you contribute to the non-partisan voters league? A I paid a contribution to them to help pay the expenses. In fact, they told me if TI would make a contri- bution they would appreciate it and I did. Q And it was your understanding that it was made for the printing and the distribution of the ballots? A That's right. nN How effective, in your opinion, was the non-partisan voters league and its pink ballot in delivering -- if we can use that word -- in delivering the black vote in Mobile? A Well, it is difficult to say how effective it was. I would say that generally whoever's name were on there withis the black commmity obtained an outstanding vote. 0 Was there a period of time when that -- when the influence of the pink ballot was greater than at others? 231 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 323 2 A I think in the early days of voter registration and 3 all and before the Civil Rights movement really got into a 4 big swing, up in the middle sixties, I think that it had -- 5 the older Mobilians and the people in the black community that 6 iinew each other and lived here together and they worked real 7 closely together and they were very effective. 8 As I say, as time went on and you had some of the 9 young people and other people from out of town that got into | 10 the black community and began their own agitating and their 11 own small groups, I think they began to split up its | 12 effectiveness, because you had a certain amount of split off 13 among some of the younger black people in the community. 14 0 I think you have referred earlier to the fact that 15 incumbents were having problems generally, at one point, 16 in the sixties? 17 A As TI said, usually people will go to the polls and 18 vote against somebody. In other words, they will be against an incumbent and, therefore, they will gc. to the polls and 19 90 vote, because they have antipathy towards somebody where, | 91 otherwise, if they are pretty well satisfied with the way | 99 government is going or if there is nobody particularly | 99 involved -- in fact, that sheet I had a moment ago with | 04 regard to the 1969 election. In that election there were | | | | 232 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 360 THE COURT: You gentlemen might want to stipulate to that or study it and come up with some other figures. All right. Whom will you have next? MR. MENEFEE: Mrs. Lonia Gill. LONIA M. GILL the witness, called on behalf of the Plaintiffs, and after having first been duly sworn to tell the truth, the whol truth, and nothing but the truth, took the stand and testified as follows: DIRECT EXAMINATION BY MR. MENEFEE : 0) This is Mrs. Lonia M. Gill, fifty-eight years old and lives at 2854 Whitlar Street and married and mother of two children. She attended Mobile County Training School and Tuskegee Institute. She has been a resident of Mobile County all of her life. She is executive secretary of the A.M.E. Zion Church; is that correct, Mrs. Gill? A That's right. 24 25 233 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 363 A Some of the campaign literature? 0 Yes, ma'am. A Yes. 0 And Mr. Alexander's carried his? A Yes. 0 Do you think it is a fair statement to say that Mr. Alexander is known as an opponent of busing and an associate of Governor Wallace? A Yes. Sure. 4) Mrs. Gill, is it fair to say that most of your support in that election came from the black community? A I can't say that in the runoff. I don't know that most of it did or not. I really don't know, because I feel that I was supported by both, but naturally I am sure that most of them came from blacks, I believe. 0 Wes: Gill, about how much money did you spend in your school board race? A I don't have the figures with me. It couldn't have been too much, because I didn't have too much. I just had enough to take care of all of my obligations. nN You are talking about maybe a couple of thousand dollars? A Well, something like that. Perhaps two thousand dollars, if that much. | 234 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 364 24 25 0 I see. Did you use S55 radio or television ads? A I did. I was on radio and television quite a bit. This was why I can say no one really had to wonder who I was. n Did you have to pay for those spots or were they public service? A No. They was donations from friends. Q I see. Do you have an opinion as to whether your campaign created much interest in the black community and whether you received substantial support within the black community? A I think it created quite a bit of interest. Now, since this was a County race? 0 Yes, within the County. A Within the County community. I think it did, but not as ich as it should have, but it did create quite a bit of interest. 0 Were you endorsed by the non-partisan voters league? A : Yes, I was. 0 Did you receive endorsement from the voters registra- tion organization? A Yes, I did. Would you allow me to say that even the Mobile Press Register endorsed me. Q From your experience, do you have an opinion as to when you say in the community, do you mean the County community, 235 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 365 24 25 whether or not a black running, at large in the community in Mobile County, has a reasonable chance of winning an election against a qualified white opponent? How would you describe th chance of a black citizen? A Personally, Mr. Menefee, I would think that the chanc would be very slim, really. Q Would you also have that opinion for running at large in the City of Mobile? A Yes, sir. Q Do you see a great deal of difference in terms of the racial issue between Mobile County and Mobile City? A It is almost equal. I have had a chance to cover the County even before the race, and I have known the City, you know, all of my life. I don't see very much difference in the County and the City. Q Do you know Dr. E. B. Goode? A Yes, sir. 9, Dr. W. L. Russell? A Yes, I do. Q And Mrs. Jackie Jacobs? A Yes. Q These were three previous candidates for the school board and received substantial support from the black community. Were they well known in the black community? es 236 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 366 1 at lA I would think so. 3 {0 All three of those candidates also gained a runoff 4 ||against a white opponent, just as you did? 5 A Yes, sir. gr Do you know a Mr. Alphonso Smith, Mrs. Lula Albert 7 llor Mr. Ollie Lee Taylor? 8 ||A Not personally, but I know of them. 9 HO They ran for the City Commission in 1973. 10 Were they as well known in the black community as 11 || the previous list of blacks, black school board candidates? 12 [lA I can't say yes or no to that, simply because I 13 don't know that. Because I don't know everybody, but I 14 ||really don't believe that they are. 15 Q Mrs. Gill, if it was necessary to raise approximately 16 twenty-five thousand dollars to run a credible race for the 17 Mobile County Commission or the City Commission, do you think 18 a black candidate, would be black candidate, could raise that 19 kind of money and would enter the race? wl 1A I don't know. I doubt seriously if a black candidate a1 could raise that kind of money, thirty thousand dollars or 57 twenty-five thousand dollars. 53 0 Would you be willing to undertake a race? bs A Not County wide or City Commission either, for that matter. 25 237 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 369 Q All right. What else? A After that, well, we dealt with Judge W. Brevard land, I think. I happen to have served as chairman of that bi-racial advisory board. I have served in Mobile City as Mobile County wide president of the P.T.A. and then served as a Mobile County wide president of the P.T.A. and then was elected State president of the P.T.A. and 1 have served on 50 many committees. | I have worked for the City of Prichard, having been appointed the first black department head as director of the community development program in the City of Prichard, and the member of the board of adjustment. I was also a member of the board of advisory committee out there in Prichard and cne of the trustees of the formerly sixth district hospital when it closed. It was the Keller Memorial Hospital and it was just any number of things associated with Mobile or with [flobile County. I could go on and on. I am not a newcomer. I have been in Mobile and Mobile County all of my life and a lot of people know me. race, did you not? n And you have a substantial support of whites in your jr I think I did. TI really believe I did, not being in pn position to actually know how many votes I got, but I believe 238 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 373 A No, Mr. Menefee. MR. MENEFEE: That's all. THE COURT: You may come down. MR. MENEFEE: Your Honor, we would like to call Mrs. Jerre Koffler next. JERRE KOFFLER ‘truth, the whole truth, and nothing but the truth, took the stand and testified as follows: DIRECT EXAMINATION BY MR. MENEFEE: Q This is Mrs. Jerre Koffler. She resides at 4208 Rochester Road and is married and the mother of two children. She attended the University of Alabama, Springhill College, University of South Alabama, and has lived in Mobile County Mrs. Koffler, is that correct? A That's right. Q Mrs. Koffler, did you run for the school board in the witness, having first been duly sworn to tell the since 1954 and presently employed at public relations counsel. 239 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 315 2 |lA That's right. 3 [IQ Mrs. Koffler, down at the bottom, would you describe 4 |/the layout of the ad at the bottom? 5 HA At the bottom. That is May 2nd block vote, names ¢ |/lthe wards, and there are four candidates listed there. 7 ||Q What is the import of that?. What is the ..: ve gs ||A I think it is trying to show that certain block areas g | that the candidates who have the most votes got the black vote 10 ||and the candidates that have the less amount of votes. 1. 12 You were one of the candidates that got some of the 12 ||most votes in a black area? 13 A Yes, sir. 1 Ie Can you tell me something of your relationship with 15 |the black community or education in the Mobile area? Why did 6 |[7ou receive such support from the black community? 17 3 Well, I guess it was because I was willing to see if ] 15 there was some way we could make the April Supreme Court | 1 decision work in Mobile Coumty. I was anxious for the school | ob board to get on with the business of educating the children | 20 and not fighting a losing battle against the Supreme Court of 9) the United States. And I believe that was coincided with what a these blacks wanted to dc and what a number of whites wanted 5 to do. 0 Do you have some comments to make on -- well, for | 240 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 376 24 25 example, in this ad number one ''Signed agreement with N.A.A.C. to achieve total integration and total busing''? A That was one of the things that I tried to take to Court. I did not sign any agreement to achieve total integration or total busing, nor do I think any agreement signed by anyone would be any different, whether it meant to start busing or stop busing. I did not sign any agreement with anybody. Q Would you describe some of your activities in trying to ease this integration process, please, ma'am? A Can I take a few minutes to go through that? IR. ARENDALL: If your Honor please, it seems to me we are going awfully far afield here. ‘THE COURT: Yes. The thing you are showing is some identification with blacks, a racial factor. It would be interesting, but I don't think that would be a great deal of help. MR. MENEFEE: Okay, sir. 0 Mrs. Koffler, during the 1972 campaign, did you receive any threatening phone calls? A Yes, I did. 0 Was this a common occurrence? P. 241 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 377 24 25 A I would get phone calls in the middle of the night saying, "Where is your nigger loving wife?', and my husband generally answered this, because I got a number of threatening calls of that same kind and he would say, ''She is sound asleep', and that would stop that, but that went on for about three months. 0 Mrs. Koffler, is it fair to say that race was a major issue in your campaign? A I would think so. 0 Do you think the term; "block vote' has racial connotations as used in Mobile County politics? A As used in this particular ad, I would say it did. Q Tagging you with a block vote and certain racial identification? A I would think so. 0 Mrs. Koffler, have you been active in other political campaigns? A Through my work and prior to my work, yes, sir. 0 Would you describe the period of time in which you have been active in these political campaigns? A I think the first real political experience I had was the Brewer - Wallace governor's race, and then, in my school board, and then I went to work right soon after that and we have handled some political clients in our work. 242 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 378 24 25 9) As recently as this past May? A Yes. Q Mrs. Koffler, from your experience, do you have an opinion as to the prevalence of race as a campaign issue in Mobile County, Mobile City politics; is it a major factor? A That is a hard question to answer. I would say that, in my particular race, it was a big factor, because of the circumstances. I noticed a little bit of it in this last May race. I think that if a candidate addresses himself to a specific black issue that he is liable to or she is liable to run into a little bit of race politics. Q Is it always a potential issue even between two white candidates, if the candidates want to play on that? A I can't say that it is always a potential issue. It depends on what the issues are. If the issues are that such it causes a rift, yes. It can be kind of potent. There are many races, I guess, that doesn't have any kind of racial discrimination in then. Q What is your religion, Mrs. Koffler? A I am Jewish. Q Was that an issue in your campaign? A No, it was not. Q Do you know whether -- from your experience, has 243 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 379 24 25 religion been an issue in campaigns? A I have never come across it. Q What about campaigns exploiting possibly national origin, against ethnic groups, was that ever an issue in Mobile County politics as you have observed? A The only ethnic issue that I have come across is the black - white. There might be some, but I just don't know about it. Q Is there any issue in Mobile County politics that you have observed in recent years that has the pervasive effect that race has? A Unless it would be crooked politics. Q Do you think race will also be an issue if a black candidate runs against a white in our present situation? A I would like to say I wish it weren't, and I hope it isn't and that we have outgrown it, but from a few things that happened in the May primary, I don't believe we have vet gotten to the point where we can say race is never an issue. Q What sort of thing did you see in the past primary? A There was another block vote against a candidate that was run in the paper. Q What race was that? A It was one of the District Court Judge races. 244 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 380 24 25 Q Was that in the Loveless - Kearney race? A Yes, it was. 0 Was there an attempt to tag one of the candidates with the block vote? A Yes, sure was. 0 Where were those ads run? A I saw, and this is a rather funny place to see it, I saw one in the Mobile Beacon and I believe one was -- some- where right in the County newspaper. I am being evasive, because I was out of town for a week of the runoff and 1 have only seen them clipped and I am not really sure which papers they were run in. Q Do you know of any other racial campaigning this past May? A No, I don't. Q Mrs. Koffler, to what extent or how directly can white politicians address issues of particular concern to the black community? Is there a certain point in which it becomes a political liability to speak of issues of particular concern to blacks? A Yes. I would think, at a certain point, it could be a liability. Q Can you give me any examples of perhaps this past May any of the candidates who might have addressed issues of 245 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 384 24 25 A Never specifically. In fact, I don't recall ever meeting with a non-partisan voters league member, per se. Q Did you make any contribution to the non-partisan voters league? A No, I did not. ) How would you describe the chances of a black candidate would have running, at large, in Mobile County and Mobile City against credible white opposition? A Well, in my opinion, it would be kind of a rough race for them. 0 If you felt that your chances were similar, would you run? 0 I don't think so; no. MR. ARENDALL: That is irrelevant. MR. MENEFEE: 4, What is your estimate of and experience of running for the Mobile City Commission under the present, at large, system? A I can only tell you what it cost for me to run and I would imagine to run for the City Commission it cost me five thousand dollars. So, I would say to run a credible race for City Commission would cost anywhere between ten thousand and on up. I am sure there are some candidates that 246 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 392 24 25 Q During the time that you have familiar with it, has the non-partisan voters league complained to the govern- ment here in Mobile that blacks aren't appointed to various City boards and committees in fair numbers according to their representation in the population? A Yes, sir. YR. BLACKSHER: Would the Clerk show the witness Exhibit 67? One minute, please. I have the wrong Exhibit. I am sorry, it is 64, Your Honor, what we have here in Plaintiff's Exhibit 64 is the summary of the City committee appointments that have been provided us by the defendants in the course of discovery proceedings. I would like to move its admission in its present form having been exchanged with the Defendants. THE COURT: All right. (Plaintiff's Exhibit 64 was received and marked, in evidence) THE COURT: Let me ask you a question about this, you have total members and total prior members. Can you explain that? MR. BLACKSHER: ] 247 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 412 1 2 Q I am talking about the league. 3 A The league -- well, many of them...... 4 Q Isn't it a fact, Reverand Hope, in the course of 5 your connection with the league, its endorsement has been 6 actively sought by candidates over the years that you have 7 been connected with it? 8 A Yes, sir. Definitely so. I explained that to start 9 with. 10 Q And wasn't that true in the last City Commission 11 race in 1973? 12 A Yes, sir. 13 Q Every candidate in the race sought your endorsement, 14 didn't they? 15 A I believe all of them did. 16 Q And were anxious to have as many black votes as they 17 could get, weren't they? 18 A Yes, sir. 19 Q And over the years your success in getting black votes 24 25 to go along with league endorsements has been proved by the efforts of candidates to get your endorsement, isn't it? A Yes. To a certain extent. Q All right. Now, did I understand you to say that what the league did was to try to endorse only people whom, in their judgment, would represent all people, black or white? 248 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA D) A Yes, sir. 3 Q In your opinion, has the league endorsed only such 4 people? 5 A In my opinion, they has; yes, sir. 6 0 So, in your opinion, every candidate the league 7 has endorsed would have been, if elected, a fair representative 3 of both black and white? g || A That was our motive. 10 IIR Is that your opinion of the facts? 11 A Yes, sir. 2 f° Now, then, you have had notable success in electing 13 ||candidates that the league has supported, have you not? 14 A Yes, in some instances. 5 1° Now, as a matter of fact, in the Greenough - Bailey race the league originally supported Bailey, didn't they? o A No, sir. 1B Q Who did they support? A Didn't they support Mr. Greenough? 2 Well, let's put it this way -- I can't answer your question. Let me ask you this. Didn't the black vote in effect put Gary Greenough in office? A I wouldn't say the black vote alone, sir. 24 THE COURT: 25 249 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 24 25 Was it the difference? A I believe so. THE COURT: All right. MR. ARENDALL: Q Was it also the difference in the Mims race? Could Mims have been elected without it? A | Well, that was the reason we endorsed them, in order that we would support those men who we felt would represent all of the people and then those who we endorsed we would ask the league to support them, but remember, the league didn't always support wholeheartedly who we endorsed. Q I think you had better explain what you just said to me. Did I understand you to say that the league didn't support wholeheartedly support or was it the blacks? A The blacks. Q In the last race Mr. Doyle didn't have opposition, did he? A No, sir. Q So, there wasn't any question there of solicitation? A No, sir. Q Now, you were talking about the inability of blacks over the last six or eight years getting elected in the County wide races. 250 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 417 24 25 No further questions. THE COURT: Will you put witnesses on just what you have been over the composition in the appointing authorities? MR. ARENDALL: Yes, sir. MR. BLACKSHER: One question, your Honor, that I would like to clear up. THE COURT: Go ahead. REDIRECT EXAMINATION BY MR. BLACKSHER: 0 Reverand Hope, in answering Mr. Arendall‘'s questions did you mean to say that every candidate that the non-partisa voters league has endorsed has turned out to represent the interest of the black community fairly? A In reeent years they have. Q How recent do you mean when you say recent years? A In this last election and maybe the election prior. I think, in my opinion, they have done a very good job in carrying out their obligations toward trying to be fair to all people. 25% FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 418 24 25 Q Is that your opinion or the opinion of the entire league? A Yes. That is the opinion -- that is what I am tryin to speak for. They feel that the candidates that they have elected here in recent years has done a very good job along that line. Q Reverand Hope, has the non-partisan voters league ever sought to encourage or to file a candidate of their own from the black community ...... MR. ARENDALL: Objection, not in rebuttal. THE COURT: I will let him ask him. A I beg your pardon, sir. THE COURT: You may answer. A It has been very far between. We haven't had too many candidates who are black to run. I would think because they felt that they didn't have a chance to win, but Mr. LeFlore, he ran, himself, I believe for the Senate. Not that I believed that he believed that he was going to win the race, but to encourage blacks to prepare themselves or run for these different offices. MR. BLACKSHER: 232 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 419 That's all, your Honor. THE COURT: You may come down, Reverand. Whom will you have next? JAMES SEALS the witness, having been called on behalf of the Plaintiffs, and after having first been duly sworn to tell the truth, the whole truth, and nothing but the truth, took the stand and testified as follows: DIRECT EXAMINATION BY MR. MENEFEE: Q This is Mr. James Seals. He is forty-eight years old. He lives at 404 Palmetto Street. He is married and has four sons and holds a masters in music education. He has lived in Mobile County all of his life. He is an instruc tor of music at Bishop State Junior College and he works with the Mobile Jazz Festival and has been active in his neighbor- hood, which is often called ''Down the Bay Neighborhood'; is that an accurate statement, Mr. Seals? A Yes, itis. Q Mr. Seals, have you spent most of your life in the down the bay neighborhood? 253 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 430 24 25 A Well, it has been a problem since this -- around '69 or '68. That is when the renewal started, I believe. Q Still no remedy to that problem? A I don't know if it is being resolved, at this time, or not. Q Mr. Seals, in the course of our conversation the other day you mentioned that you voted at all Saints Episcopal Church? A Yes. Q Is this a predominantly white church? A Yes, it is. Q As a black person, have you ever felt any reluctance in voting there or have members of your family or community? A Well, I don't feel reluctance now, because I guess I have gotten use to the idea because of all of my places of voting. First I voted on Pillans Street at the VFW and now on Ann Street and all of the places I have voted since 1 have been voting have been predominantly white places and I guess I have gotten use to the idea. Q Do you think it deters some of the people in your neighborhood? A I would imagine it deters some in going to a predominantly white place like that. Q Has the increased presence of black poll workers 24 25 254 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA made voting in recent years -- made the voting facilities seem more available and attractive to black citizens? A Yes. I have spoken to some of the people in my area and they did feel that since the poll watchers were mixed that they had more ease and they felt a little differently about going to the polls, because people generally feel that if they go places where they are not mamy of their kind thers is a reluctance about going. n One last point. You have been active in your neighborhood for some time and a leader in your community organization and you expressed interest to me in this litiga- tion, Do you think if single member districts were created in your neighborhood that you might offer yourself as a candidate for City council or City Commission under certain circumstances? A If it was changed? 0 Yes, sir. A Yes, sir. I do feel that I would. Q You wouldn't under the present system? A No. Q Why? A Because it would be very difficult to win and I don't think that I would like to sit myself as a loser from 431 255 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 433 24 25 0 Not all of that being City money? A great deal of it being Federal money, wasn't it? A Right. 0 And by and large the Mobile Housing Board since it is the recipient of the Federal funds, is subject to the overriding authority of their Federal authorities, is it not? A Yes. Q Now, I believe you have told us that you had been to the City Commission one or more times in connection with problems you have in your area; is that correct? A Several times. 0 Which commissioners have you met with? A With our present commissioners, I have met with all three. Q And the previous commission, with whom did you meet? A Each time that our delegates went before the commissioners, all three commissioners were present. Q About how many times would you say that your delegat: has been down to the City Hall and met with the commissioners since May of 1967? A At least four times since 1967. Q And they have been readily available to you to meet with your delegation, haven't they? You had no difficulty in getting heard? fon 256 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 434 24 25 A We had no difficulty at the meetings, no. Q With the exception of this matter with the park, you have actually accomplished everything that you had sought to accomplish except a part of the area has some problem with drainage? A The park and the schools, there were two. 0 Well, the schools are subject to Judge Hand's order. A Well, you see, we were involved in that survey and it was made of the down the bay area. THE COURT: I think you can forget the school. That is out of the City's hands on a petition from the black people. MR. ARENDALL: 0 As to the mark, didn't I understand you to say that you now feel that you have encugh people down there to actual get built the park that is part of the major plan? A But it is very difficult to discuss the park without] mentioning the school, because it comprises one big area and we were told that the whole area was owned by the housing boa that the school board was suppose to purchase one part of it and the City the other and, to our knowledge, this has not been done. So, it is very difficult to talk about the park and divorce the school when it is one large acreage. Q Well, let's try to do that, because there isn't ly rd, FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 435 24 25 anything, Mr. Seals, that the City Commission can do about that, or even the school board can do about that. MR. BLACKSHER: If your Honor please, I object to counsel charac- terizing that point. We will be glad to submit to you briefs providing you what the legal situation is. I understand we don't want to get into it in detail, but I object to that characterization. THE COURT: Well, it may be that the position that the City takes in that other hearing, but I think we will have to take judicial knowledge that the City, by itself, cannot do anything. It is subject to this Court's order. Whatever explanation you want and I am certainly not going to try that case. Thank goodness that is not mine. But the City Commissioners hands -- I think we have to recognize is tied to a large extent by the action of the Court in that law suit. Now, if you want to show some discriminatory purpose or motive that the City had in that suit, I want you to feel free to do it, so far as it relates to the park. MR. ARENDALL: As a matter of fact, Mr. Seals, the City of Mobile doesn't run any schools any where, does it? A No. The City does not. 0 That is done by the Mobile County School Board? A That's right, but there is another problem, if I may Q Sure. Go ahead. A The housing board now wants to sell to private 258 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 436 ownership the land that was taken for the school site. See, that is another problem, because the land was taken for a school site and now if it is resold for private owners, I think it is unfair. Q That is the housing board and that isn't the City Commission and that is subject to Federal supervision, isn't it? A I guess so. Q Have you made any representations to HUD or HEW? A Just the housing board. Q And what response did you get from the housing board A The action is still pending on it. Q They have to take it up with Atlanta first, I think, don't they, and then Washington? A More than likely. Q All right. Now, as to drainage, drainage in a Whos lot of parts of Mobile, to your knowledge, have problems with drainage, don't they? 259 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 437 24 25 A I would suppose so. Q Are you aware of the on going efforts of the City of Mobile to effectuate a major drainage program? A Yes, 1 am. Q Is it fair to say, then, that you really not only have had access to the City Commission and have been heard by them as to every matter that you have sought to bring to their attention, but that with the essentials of the park to whatever extent the City has control over that, that is the only thing that you haven't gotten what you wanted; is that right? A Well, in my case, yes. Q There are, as you said to us, black and white poll watchers at all Saints Church, are there not? A There are. MR. ARENDALL: No further questions. THE COURT: Any further questions? MR. MENEFEE: No, sir. THE COURT: All right. You may come down. Whom will you have next? 260 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 441 I am going to put Dr. Voyles on as a witness and let him testify and he will be subject to full cross examination. They have his thesie and it speaks for itself. THE COURT: Well, he has the right to call anybody that he wants to and limit -- really, now, under the Federal rules, the question of wvouching for a witness is about out the window. The Court takes the testimony and weighs it. The old limita- tions -- we are particularly familiar with vouching as to a witness has certainly been severely reduced and we will limit cross examination and then you can put him on. JAMES E. VOYLES the witness, after having first been duly sworn to tell the truth, the whole truth, and nothing but the truth, took the stand and testified, as follows: DIRECT EXAMINATION BY MR. STILL: nN May it please the Court, the witness is James Everett Voyles. He lives at 1102 Savannah Street in the City of Mobile. He has a B.S. Degree -- and a M.A. Degree from the University of Mississippi, and a PHD Degree from North Texas State University in Denton, Texas, with the FEDERAL STENGGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 642 1 2 major in political science. 3 He is presently employed in his own business, which 4 is known as James Everett Voyles and Associates. 5 Dr. Voyles, what is your age? 6 A Thirty-two. 7 Q You also hold a part-time teaching jobs at Springhill 8 College and the University of South Alabama? 9 A That was true, Mr. Still, up until May, at which 10 time, I resigned in total from Springhill. I will teach in 11 the fall at the graduate program at the University of South 12 Alabama, assuming it is funded. 13 Q Would the clerk hand the witness Exhibit number 9, 14 please? . Here you are. Do you have one? 16 A Is that my desertation, Mr. Still? 17 GQ Yes. | 18 A I have a copy here. 19 Q Fine. They are all numbered the same, Judge. Would 20 you explain to us what Plaintiff's Exhibit number 9 is? 21 A It is my doctoral desertation which is entitled 99 "An Analysis of Voting Patterns in Mobile, Alabama, 1948 through 93 1970%, 94 Q And this was in partial completion of your PHD? 05 A Yes. That's right. 262 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 443 1 2 Q What was the general purpose of the study? 3 A The general purpose of the study was really to be 4 a methodological statistical study of the voting patterns in 5 the City of Mobile during the years this indicates. 6 0 What statistical devices or methods did you use to 7 measure voting behavior? 8 A Are you referring to the Pearson product moment? 9 Q Yes. 10 A Yes. I used that as a means of determining correlation between variables in voting. Q Is this a form of regression analysis? A Yes, it is. Q And is it substantially similar to the least squares method of analysis? A Yes. As Dr. Schlichting testified, the methods that the Plaintiffs used a multiple correlation is based on least squares. This is always a derivative of least squares. The major difference, the Pearson product moment handles only one variable at a time whereas the multiple handles any number of then. Q They come out with generally the same statistical answers given the same information? A Yes. Theoretically, at least, if the data was handled exactly the same the results would be exactly the 263 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA MR. STILL: In the bottom of the second paragraph, you make the statement, ''The implications appeared to be that identification with the black vote was to be avoided if one was to be successful In local elections. Thus, black electoral influence was virtually deleted in Mobile, ". Now, was that a conclusion of your study? A Yes. That is basically a conclusion. Q All right. Wasn't the thesis or the hypothesis that you set out to prove in this desertation that black voting influences in the City of Mobile over the time period you were talking about had decreased and the Republican influence was increasing during the same time period? A Yes. Q All right. Did you prove that hypothesis? A I think I proved very well the question of the black. I am not for sure I did so well on the Republican, although statistically they both proved out. Q All right. You then again make the same type of statement about black influence in. che elections, on page one hundred, I believe, in the bottom paragraph on that page, you make a statement that while blacks seem to be supporting all three winners in 1953 that everybedy who won in 1969 did not carry the black wards; is that correct? ; 264 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA re A Did not carry the black groups, yes. Q All right. Is that a conclusion of your study? A Yes. 0 Is that in support of your hypothesis? A Yes, it is. n And I believe that vou stated on page one hundred and seven of the desertation, around the middle of the page that it is better to ignore the black vote than to risk identification with it? A Yes, I did. Q All right. Now, what do you mean by identification with the black vote? A Well, by 1969, Mr. Still, the issue of Civil Rights, race and so on, had become very important, an important issue in Mobile. Perhaps it reached its peak, but certainly was a strong issue anyway and had been in the '65 race, as well, particularly in ‘69. What I meant by this was if a candidate got too close to the black vote and was identified as a candidate of the black community he was very likely, in 1969, to find some white backlash to his particular candidacy. This was particularly critical, if you were in a runoff election. Q Your thesis is not that any person who receives substantial black votes is going to lose, but that that candi > 205 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA date will lose if white voters perceive that the candidate is identified with black voters; is that correct? A Yes. That is basically what it is. Q So, it is quite possible, under the thesis that you have developed here, for a candidate to receive a substantial number of black votes and still be successful; is that correct A Yes. I would have assumed, in 1969, that a candi- date could have received a substantial amount of votes in the black community and still have been successful. Q Now, would it also be congruent with your thesis that a candidate -- if a candidate was identified with the black vote, that white voters might vote against that candi- date, notwithstanding how the candidate actually did in the black wards on the same day? A I suppose that is possible, although we don't have any results of that that I know of. 0 All right. And most of the cases that you studied, didn't the allegation of -- well, the identification with the black vote or with the block vote, as it is called in adver- tisements, sometimes doesn't that generally take place in a runoff election? A Yes. The tendency was and this is in the perception part of the tendency was that several candidates would run in the first race which two of them would end up in a runoff. 462 % 4 266 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA ep 03 2 Since the election we are talking about requires a majority, 3 at which time, in the case of Joe Langan, in particular, his 4 opposition would publish in the newspapers results of various 5 black wards showing that Mr. Langan got a disproportionately 6 large percentage of the black votes and thus identifying him 7 with the black vote and the strategy would be the reaction 8 from the white community to offset the votes Mr. Langan was 9 expected to get from the black area and the perception part 10 came, of course, from the opposition that published this. 11 0 In Mr. Langan's case, didn't you find in here that 12 in some cases the opponent would use the previous election | 13 data against Mr. Langan the first time around? 4 A No. I don't believe I did, Mr. Still. I don't 15 recall that, if I 41d. 16 Q It is just generally restricted then to runoff 17 situations? 18 A To my knowledge, the only advertisements of that 19 type that appeared within the period of this desertation was 20 in the runoff with Mr. Bailey and Mr. Langan in 1969. 2 [IR All right. Was 1%69 a runoff with Mr. Bailey and | 929 Langan, or was it just the first election? | 93 || A Yes. It was not a runoff. I assume I used the 1965 | 24 data. 95 0 All right. Now, about page seventy of the desertatign 267 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 464 you began talking about some black candidates who have run 3 for election? 4 A Yes, I do. 5 Q Which black candidates did you study? | A The 1966 race of Dr. Russell who, I believe, was a candidate for the Mobile County School Board and then, I believe, the election of Mr. -- that Mr. Montgomery and Mr. Bell contested, which was a special legislative race in 1969. You might prompt my memory. Did I do the one on the Jacobs race in the desertation? {5 8) I don't see it mentioned. | ha I don't believe I did. Okay. | Q All right. Now, what conclusions did you draw about the chance of a black person being elected at an at large election? A I don't know that I came to that conclusion. None of these three candidates were successful. n Did you run any sort of an analysis about the votes that they received in various wards? A They received substantially more vote in the black area than they did in the white. 0 Would you look at page seventy-two, please? You have a statement there, ''In fact, the percentage of vote for Russell in each ward corresponded closely to 2 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA ls 1 465 : 1 2 the percentage of negro voters in that ward." 3 Is that a conclusion of your thesis? 4 A Yes, it is. 5 0 Would you think that that would indicate, at that 6 time, a racially polarized voting situation? 7 A I think it indicates, in that particular race, that 8 Russell did substantially better in the black area than he 9 did in the white. 10 Q All right. Does it indicate to you, considering 11 the percentage of vote that he got in comparison to the 12 percentage of black in each ward, that he was receiving | 13 substantially negro votes and no others? 14 A He was receiving substantially negro votes. 1 am 15 not for sure I can come up with a cause and effect on the 16 statistics. I was not in Mobile at the time. 17 Q All right. Would the Clerk hand the witness 18 Plaintiff's Exhibit number 53, please? 19 Would you look at, please, the top of the first 20 page at the results of the City Commission races and this | 21 Exhibit has been previously explained to us and I believe 99 you were here, at the time, that the top half of the first 23 page includes the Pearsons R, that is the product moment 94 correlation coefficients run by you for each one of these legislative races ~-- excuse me, City Commission races for 269 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 24 25 groups holdimg race constant, as we say? A Yes. I compared the low income white groups with the higher income white groups. THE COURT: There seems to be some of your notes in this Exhibit, Hand them to him, Mr. law clerk. MR. ‘STILL: All right, excuse me. 0 Does this table show only the difference between low white and high white? A Yeg, I believe so. 473 cee teeter eset Sete e— 0 All right. Is it possible to compute, from the table beginning at page one hundred and twenty, the difference between the low black and the low mid-black? A Yes. 0 | All it would be is a subtraction effort, wouldn't iti A Yes. MR. STILL: Your Honor, I would like to show the witness -- we are running out of space to tack it up on the board over there This is Plaintiff's Exhibit number 56. Take a look at that for a moment. All right. Plaintiff's Exhibit 56 is a chart showing the differences between -- in the case of the dotted red line y 2 FEDERAL STENOCRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA — PCIE L474 2 showing the differences between the low income black and the 8 low income white who voted for the winner. 4 In other words, that would be the same as the first 5 column labelled "Difference' on page one hundred and twenty, 6 || wouldn't it be, Dr. Voyles? 71 LA Yes. 8a All right. Now, the solid red line shows the 9 difference between lower middle income blacks and whites, the 10 percentage voting for the winner, and I believe that would 11 correspond with the last column on page one hundred and 12 twenty marked difference, wouldn't it? | 13 A Yes, sir. 14 Q All right. Now, the black lines are then computed 15 from the material that you have on this table and the differences 16 are not specifically shown, but the dotted black line shows 17 the difference between lower income blacks and lower middle 18 income blacks that would be comparing the column ~-- those 19 respective columns and taking the difference between them and 20 the solid black lines show the same thing for whites, which | 21 would then take the columns labelled lower white and lower | 22 middle white and take a difference between them. 23 Now, looking at this chart, don't we generally see 24 that the difference between racial groups -- no, excuse me. 25 The difference between income groups remains fairly low from 27% FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 2 1961 on, whereas it was much higher in the fifties? 3 A Yes, it is. 4 Q Doesn't the chart also show that the difference 5 between the racial groups was about the same as the difference | 6 | between income groups in the fifties, but that it got much 7 higher into the thirty to forty percent range in the sixties; 8 isn't that correct? g [lA Yes. That is what it shows. 10 ||Q All right. Now, would you conclude from looking at ] | 11 || this Exhibit which, of course, is based on the table in your 1 12 || thesis that over the time from 1953 to '69, which is a period 13 covered by your thesis, that the income of the voter has bcos | 14 less important in explaining the difference in turn out than 15 || the race of the voter has? 16 ||A Actually, we are not talking about turn out. We are 17 talking about..... | 18 IQ Excuse me, voting for the winners, I am sorry. 9 [A Yes. Ve are limiting that up to and including 1969. 90 ||That is true. Q All right. Your Homor, this chart includes some | data from 1973 that was also presented to us by the Defendants. We will present this in evidence at a later time once we have gotten that material in. MR. ARENDALL: 272 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ‘ALABAMA ett GL ee 2 Q In any event, that was not done in your desertation 3 nor has it been done in Dr. Schlichting's regression theory? 4 A No, and going further than that, it cannot be done 5 at this point. It would have to be done at the time of the 6 campaign while it was going on. 7 Q While your desertation indicates a very high Pearson|s 8 "R" in the Langan 1969 race, did you make a sufficient 9 additional study to form a conclusion as to what actually 10 cost him the election? 11 A Yes. I made some comments on that in the desertationmn. | 12 0 Would you express those to us? 13 A Well, I think the obvious thing that happened to 14 Mr. Langan in 1969 was the boycott in the black area and 15 perhaps the impact of the hurricane Camille, but for whatever 16 factor, the fact that blacks did not turn: out in large 17 numbers -- to give you some figures about that, in wards 18 ten, eleven, twenty-two and twenty-three, Mr. Langan received | 19 sixteen hundred and ninety-two fewer votes than in 1965. That 20 is fewer in 1969 than he did in 1965. 91 In wards three, twenty and thirty-two, Langan | 99 received three hundred and sixty-six votes fewer in 1969 than | 25 he did in 1965, yet his percentage of vote that he got from vt the black area was roughly the same as what he received in 1965; that is, he received most of it. 273 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 488 black for another type of ward. So, there is -- that would be forty percent black or a forty-five percent gap in there? A Yes, Q We are not talking about smaller increments of vote, escuing the diagram in some way showing a smaller relationship or near perfect relationship on the basis of that? A Yes. We had a pretty good gap in them. 0 Forty-five percent is a pretty good gap when we are talking about a hundred percent universe, aren't we? A Yes. Q Now, the thesis you were testing -- the hypothesis you were testing in this thesis was that black voting power in the City of Mobile had decreased during the period under study. Now, you found that to be true, didn't you? A Yes. If you are going to -- yes, okay. How are you going to define voting power in what you are saying? Q Now, cause and effect is not shown, as you said? A No, not by the statistical work. Q All right. Do you have your thesis there in front of you? 274 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 489 A Q A Ve ) Po L O 2+ SeNLeNCC eww. +s THE COURT: MR. STILL: THE COURT: MR. STILL: mathematical models that determine the degree of association between given variables." or the obvious things like shoe size and reading ability, if we are really trying to test something, doesn't that degree of association shown by Pearson's R actually shows us that Look at page twenty-nine, please. Okay. Now, toward the bottom third of the page there is What page? Twenty-nine, your Honor. All ‘righr. That reads: ''Product moment correlations are Yes. Now, you used the term there, ''degree of association" Yes. Instead of cause and effect? Yes. Now, once you have shown a degree of association between two factors and we have ruled out the obvious anomalies, 215 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 490 24 25 the two factors are associated in some way; isn't that correct? A Yes. It shows association. What it does not show is the reason for this association. Q Right. And we can, once we have shown the associatig between childrens' shoe sizes and their reading ability, once we have shown there is that correlation, then we can look at it with our own intelligence and say, well, of course, there is cause, they are ‘both related to age; isn't that correct? A Surely. Q When we are dealing with elections, I believe you said you were replicating a study that had been made in Atlanta trying to determine the impact of race and income on voting within the City of Atlanta and, in this case, you did it for the City of Mobile and there are other studies for other areas, aren't there? | A Yes, there are. Q After we have this statistical measure called Pearson's R we can then look at it with our- own human intelligence to determine whether or not it means anything; isn't that correct? A Yes. Q And in writing your thesis you looked at the Pearson's R that you got and you determined that black voting nm 276 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 491 24 25 power had decreased during the period under study, didn't you? A Yes, I did. MR. STILL: All right. That's all the questions that I have. MR. ARENDALL: Judge, I overlooked asking one brief question. THE COURT: All right. RECROSS EXAMINATION BY MR. ARENDALL: Q If you would, please, turn, Dr. Voyles, to page one hundred of your desertation right up at the top. You are referring there to the Langan election in 1969 and you have a cause that says; "He did not carry a majority in any ward (or group) that was predominantly white.". Now, should not the words "Any ward'' and then the or before the group be deleted and should not the clause correctly say, '"He did not carry a majority of any group that was predominantly white''? A Yes. That is correct. I am surprised they didn't catch that. Q In the election in which Mr. Langan was defeated, 217 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 495 THE COURT: When we use voting power, we have to use in conte t with different things, don't we? A Yes. THE COURT: That is one of the problems we run into with statis- tics. Go ahead. MR. “STILL: That's all the questions I have, your Honor. THE COURT: All right. Who is your next witness. MR. STILL: We call Dr. Charles Cotrell. CHARLES COTRELL the witness, called on behalf of the Plaintiffs and after having first been duly sworn to tell the truth, the whol truth, and nothing but the truth, took the stand and testified as follows: DIRECT EXAMINATION BY MR, STILL: Q May it please the Court, this is Dr. Charles L. Cotrell. He lives at 210 King William Street, San Antonio, : e 278 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 498 24 25 the present case, but we will take them up at the time we get to them. Now, Dr. Cotrell, what background work have you done here in the City of Mobile to prepare yourself for the testi- mony in this case? A I examined Dr. Voyles's thesis. I examined the work done by the two statisticians hired by the Plaintiffs. I undertook fairly extensive interviews with politically active persons in Mobile City politics and Mobile County and schoolboard politics. I read newspaper articles on Mobile politics and visited Mobile, for these purposes, personally three times for period roughly of ten or twelve days. Q Now, what does the term ''voting dilution' mean to you as a political scientist? A Voting dilution means the cancelling or submergeance of a voting group, an identifiable group of voters. It is usually used in association with at large elections. That is the context within which I have used the term and have seen it used. It SeriRirs that a number of factors have come to play, some historical and some current have converged to bring about an effect which basically, as it were, freezes permanently or makes it sizaiticantly difficult for a parti- cular group to express their preferences. 279 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA = 499 1 g It is associated with a very important dynamic, 3 that is of racial polarized voting, in a context where race 4 has shown to be manifest in elections or in a -- in a context 5 wherein race can become manifest in the elections. 6 In the particular electoral structure of at large 7 elections in the context of the dynamics of racially 8 polarized voting, racial dilution occurs when, for example, 9 one racial group of a minority numerically or possibly have 10 a majority numerically, but still, in a voting minority 11 faces, in the sense, we could say the hostility of a white 12 majority or a black majority, but faces hostility of a 13 voting majority which basically controls the entire electoral | 14 -- election and so on. 15 So, the dilution occurs when the preference of the 16 minority numerical or the minority occurs when the preferences lf are no longer registered in the system. In other words, 18 the votes could be cast time and time again, but to no 19 avail. 20 Now, there are other factors which have been found 21 in behavior in law, but that is the basic dilution notion. | 29 Q All right. Now, what data from Mobile did you 23 examine to decide whether or not voting dilution of black 24 voting strength exists in Mobile City? 05 A I examined correlations that were presented to this 280 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 500 2 Court. I interviewed some eighteen to twenty individuals. 3 I heard testimony in this Court for the past two days. 4 I examined what can be called racial campaign appeals and 5 I also examined, as I suggested to you, Dr. Voyles's thesis 6 which has been introduced as evidence into this Court. 7 Q From this evidence, what is your opinion what is 8 your opinion about whether or not voting dilution of black 9 voting power exists in Mobile? 10 MR. ARENDALL: 11 Just a minute. Objection to that. I do not 12 consider that he has stated the facts on which an opinion 13 can be based. 14 THE COURT: 15 Well, he is giving a political science view of 16 what dilution is. That is not necessarily the Court's 17 definition of what dilution is, but to develop his thesis 18 or his point, I will let him testify. i | ¥MB.STIIL, 20 Have you reached a conclusion? 21 A Yes, I have. 99 It is my opinion that black voting strength in 93 Mobile has been diluted and the black voting strength is 94 thereby basically cancelled or negated in the at large 25 structure in the Mobile City elections. 231 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Dr. Schlichting's testimony; is that correct? A Since approximately one-fifteen on Monday. Q All right. James Buskey and some other witnesses that we have had have suggested that lower black voter turn out in elections is a residual effect on past discrimination. Do you feel that you have sufficient evidence to draw that same conclusion here for the City of Mobile? A I would like to look at more data before I would reach the conclusion that it is simply the residual effect that causes low black participation or low voter turn out. We do, however, have some evidence and I would, among the explanations, lean toward a residual -- the residual impact of exclusionary laws in the past. We have evidence which shows up to 1965 that there was a fairly massive differential in voter registration and this doesn't necessarily mean turn out, but it is an indicatory. Secondly, I believe Plaintiffs have introduced some contrast between predominantly white and predominantly black wards and turn out in the seventies. The imterviewees all estimate that the turn out is lower. So, I think we have some basis to reach a tentative conclusion that there is a differential between black and Un Ww 282 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 504 - 24 25 white turn out. As to the residual question, it seems to me that political science offers us, I should say, three possible explanations. One of them would be that black voter turn out would be the result of past electoral structures. Ira Sharshansky (sic) in his book on regionalism in America, Kenneth Vines -- I am sorry, Jacobs and Vines and their book on American State Politics, suggest that electoral structures do, indeed, have a real impact upon participation rates and if a group of citizens have been excluded historically, I think we can reasonably expect that legacy of exclusion to hang on, as it were, as a residual effect in terms of their voter turn out. That is one explanation and that is the explanation to which I lean. Q What are the other explanations? A A second explanation would simply be that black voters in Mobile, as blacks are apathetic, something indigenous in the group. I don't believe I would honor this as a political science explanation. It gets into the national character studies that have been fairly discredited and yet a third explanation would suggest that it is in the anals of voting behavior literature a third explanation would suggest that lower income people turn out less and tha 283 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA there is an overlap between black voters and lower income people. Of course, we had testimony yesterday which showed that in spite of the economic levels, as it were represented in Dr. Voyles's thesis, the differential between white and black voters and turn out in the sixties maintained. Thus I would return to my original point, the residual explana- tion seems to have credence. Q All right. Let's go back over a couple of these points for a moment. As regards the second point, you said it might be something indigenous in the black character and then you said that deals with the national character studies which have been pretty well discredited? A Well, let me elaborate on that. I don't want to make this a vowel, but it could be a possible explanation, as I see it. During the thirties and forties a number of studies were contrived concerning the authoritorian or regimenting might of the German people, tracing it back to some pression regimentation in the nineteenth century. To impute to a group, a racial group to an ethnic group or to impute to a national group characteristics such as in the area of the country that I am from, Mexican-Americans are simply lazy, is dangerous stereo-typing and I don't see any evidence which suggests that there is anything indigenous 284 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 506 in black voters in Mobile as a group that they would suggest that they don't turn out. Q All right. Now, have you examined any evidence or conducted any interviews about the difference between voter turn out and multi-member elections or at large elections and single member district elections which we have here for the legislature? A Well, I have, in the context of San Antonio, one piece of evidence we have here appears to be the high degree of black voter turn out in the single member district, House district ninety-nine; that is John LeFlore's old seat, wherein, I believe, six candidates offered themselves for office and there seemed to be a response among black voters to that number of candidates and to the possibility of electing a black to -- or a person from that district to the legislature. I have also compared, I would say this very briefly, I have also compared the effects of the same phenomenon in the Bear County, Texas, the original authority in the White decision. MR. ARENDALL: Just a minute. THE COURT: We are not going into what you found out there. You 235 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 507 24 25 may use the basis of any studies you made in drawing conelusions and facts you have found in this one. I would suggest you do not interject those other cases into it. MR. STILL: You have heard testimony in this Courtroom from several persons saying that black people generally have not run for at large elections, because they felt that they did not have sufficient voting power to win them and I believe Mr. Buskey testified that he would not runin an at large election, because he could not win such an election. Have you been able to gather any sort or make any sort of conclusion on the basis of the testimony that you have heard here, the interviews that you had on the other evidence that you looked at as to the participation as candidates by blacks .in an at large election system versus a single member district system? A The political science language for this would be the recruitment of candidates and based on the testimony I have heard, and based on the interview sources, I would have to conclude that black voters -- black candidates would basically -- potential candidates would be discouraged from running in at large situations and the view expressed to me and in this Courtroom is that there is a high probability that we won't win or it is impossible or, as one person 286 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 508 said, suicide, in the at large structure and the way in which this would be talked about would be a certain discouragement in the incentive to offer one's self or through association gather about political followers and hence run for office. So, my opinion would be that a discouragement factor is at work. Q All right. You have heard the question that his Honor asked the previous witness this morning about the voting power of blacks between the time that they are thirty percent or so of the electorate, and the time that they are fifty percent of the electorate. Do you agree with the conclusion that Dr. Voyles reached that as long as racial polarization occurs that blacks will not be able to win at large elections? A Yes, I do. I would like to comment on that, if I might. Q Go ahead. A Judge Pittman formulated the hypothesis, the hypother tical in a way in which we can ill afford to ignore. He suggested that in the hypothesis that as black voters in this thirty-five percent population figure gained strength in Mobile there is a tendency or potential to react among -- apparently to react to that, as it were, as a threat. So, he concluded the logical conclusion would be that until 287 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 209 1 2 blacks were in the majority in the at large structure you 3 really couldn't expect their preferences to be registered 4 equitably. 5 I think that goes to a very realistic view of this 6 particular rank or percentage rank of black population in 7 Mobile and I would add one thing to it. It is quite 8 possible that that could be expressed, that resistance, 9 as it were, to black, increased black voter registration, 10 could be expressed in a manifest way or it could in public 11 opinion terms remain latent, as it were. We wouldn't know 12 about the existence or possibly existence of racial 13 campaigning and appeals to it until a black candidate 14 basically a qualified candidate offers himself for office 15 and, in this context, I think we would be back to our 16 probability of failure of success in the at large context. 17 It is a very crucial way, it seems to me, to understand 18 dilution in the Mobile context. 19 Q All right. Now, that deals with black candidates running 20 for election. 21 What about the situation where it is not a black 29 candidate running for office, but it is a white candidate 23 supported by the blacks. Can the blacks occupy a pivotal 24 position thereby enhancing their voting power in the present 95 system? 288 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 24 25 [£2 ] A Well, Dr. Voyles's thesis and this testimony suggest that the black identification -- identification with black voters, as he calls it, is a kiss of death. I think dilution works whether or not there would be a black candidate or a white candidate openly and closely associated with the black interests. We had a very esteemed citizen of Mobile yesterday in the Courtroom, Mr. Joe Langan, and I think his case and his election in 1969 speaks to that point. Indeed, in terms of the pivotal vote notion or voting power, as Judge Pittman framed it..... THE COURT: I was using a term that the witness used. I was trying to clarify what he meant by voting power. A Well, let's stay with counsel's use of voting power or the witness's use, as a term. What this means is a white candidate would have to approach the black community), as it were, looking over his or her shoulder and hoping not to evoke any kind of intents or close identity or racial identity that would, in turn, cause what we would loosely call a back lash among white voters. That formulation, it seems to me in both the terms of discrediting the pivotal vote notion and also in terms of this increasing voter registration related to racial polarization is a very 289 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA oll 2 inciteful way to look at this, the Mobile situation. 3 THE COURT: 4 Now, I am not exactly sure just what you said. Do 5 I understand you to say that it is dangerous to look at the 6 increase of black voting power as minimizing their effect, 7 just because it increases backlash or are you saying something 8 else? 9 A No. We had two parts of it, your Honor, two parts 10 of the analysis, and what I am suggesting is that sort of 11 a vicious Catch-22, as you might hypothesize on, could occur 12 if racial polarization would indeed increase as blacks 13 become a voting threat. 5 If I understood you correctly, you are saying that § racial polarization may increase, but it does mot necessarily decrease their power, because they have some power on the necessity of other people to seek their votes? 15 A No. That is the second point I was addressing. I 20 suggest their power is debilitated in the sense we use o1 power. THE COURT: I understand. A Because of the racial context within which they must 290 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 512 be approached as a voting group. THE COURT: What was the danger? I understood you to say that there was some danger in viewing that. A Here is the danger, your Honor. It seems to me, as far as equitable or equal black voting strength, we have seen introduced into evidence here the newspapers and other ads that show black wards with '"x's'" through them and to be saddled with that black vote, to openly court the black vote and black interest, could indeed be very problematic for a candidate. He must approach them looking over his shoulder to see how that reaction is received by the white voters and that is the very mechanism of racially polarized voting or the potential of racially polarized voting that causes the problem in dilution. Q In other words, you agree with Dr. Voyles's statement that it is a kiss of death to be associated with the black vote? A Yes, I do. Q For a white politician? A Yes, 1 do. 0 Now, all of this hypothesis has been based on the idea that there is and will continue to be racial polarizatig Now, have you found, from the evidence presented in DI FEDERAL STENGCRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 313 24 25 this case, particularly the computer analyses, the regression analyses, that there is a racial polarization of voters within the City of Mobile? A Yes. I have found that to be the case. Q Do you find that it is diminishing, at the present time, or increasing or staying about the same? A I wouldn't respond to the question in terms of more Or less or whatever. I would suggest to you that racially polarized voting exists, that it may be difficult to determine fully that that exists in the '73 elections, although you do have some correlations. The interviews suggested that neither of the candidates in the Greenough -Bailey race were particularly favored by a great numbers of black voters, that is, identified with black voters. This was the interview source and I guess more importantly the notion of race still seems to be here and it seems that quite possibly it could be evoked as an open issue, unfortunately, in 1976 as it was in 1969 in terms of the racial campaign ads. Indeed, testimony suggest that it was evoked in 1974. So, racial polarization still persists in the seventies, in my opinion. MR.. STILL: Thank you. That's all the questions I have. MR. ARENDALL: Your Honor, give me about five minutes to look over 292 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 539 1 2 MR. ARENDALL: 3 Q Dr. Cotrell, did I understand you to say awhile ago 4 that you purported to find some racial polarization in 1973 5 election for the City Commission? 6 A I would have to see the correlations on the 7 Greenough - Bailey race, but I believe the correlations -- 8 I am not sure whether it was statistically significant or 9 not. 10 Q Well, I thought you based your opinion on having 11 seen the correlations. I want to call your attention to the 12 fact that it was thirty-five -- the R square was thirty-five 13 and that is well under the trash range,isn't it? 14 A Well, I also suggested to you to verify that the 15 interview sources suggested that Greenough and Bailey, unlike 16 a person like Langan, were not overly identified in the black 17 community as representing black interests. 18 Q Do I understand you to say that black candidates or 1 some white candidates have shunned the black vote? 20 A No. I said white candidates in the context of racially 3 polarized voting would probably have to approach a voter 5 group like a black voting group in Mobile very cautiously 54 and their approach and their strategies would have to avoid 3] what Dr. Voyles had described as the kiss of death. Q And can you give me any camdidate for City Commission 293 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 240 24 25 in recent years that have shunned the black vote? A I wouldn't be qualified to suggest that this candidat or that candidate in the closeness of a campaign headquarters developed the strategy or that. I am simply suggesting that that is an explanation of the way campaigns are waged, recognizing that the black voters might make as much as twenty-five or thirty percent of the electorate. MR. ARENDALL: No further questions. THE COURT: You may examine him. REDIRECT EXAMINATION BY MR. ‘STILL: Q Dr. Cotrell, I have a couple of questions, please. Would the Clerk hand Plaintiff's Exhibit number 4 to the witness, please. THE COURT: Before you do that, let's take about a fifteen minute break. (RECESS) THE COURT: All right." Mr..Still, MR. STILL: e 294 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 547 MR. MENEFEE: Mr. Sylvester Williams. SYLVESTER WILLIAMS the witness, called on behalf of the Plaintiffs, and after having first been duly sworn to tell the truth, the whole truth, and nothing but the truth, took the stand and testified as follows: DIRECT EXAMINATION BY MR. MENEFEE: Q This is Mr. Sylvester Williams, forty-eight years old and lives at 350 Adams Street, Mobile. He was born in Dallas County and lived in Mobile County since 1940. Finished the third grade. He is on a labor committee and a civil rights committee for the non-partisan voters league. He is treasurer of the shipbuilders union and works at Alabama Dry Dock and Shipbuilding Company. Is that correct, Mr. Williams? A That's right. Q Mr. Williams, how long have you been associated with the non-partisan voters league? A Since 1960, around 1960. 295 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA (vy ) Q And when were you registered to vote in Mobile? A In the late sixties. Q Prior to that time, had you attempted to register to vote? A Yes, I did. Q About how many times? A About six or seven times. MR. ARENDALL: I object, if your Honor please. I think we have gon; into past discrimination. THE COURT: Well, I have told them that since 1950 that there was a stipulation up until 1950, but I have told them that since that time -- that is as far as the stipulation went. Go ahead. MR. MENEFEE: I am sorry. About how many times did you try to register? A About six or seven times. Q Would you describe some of those efforts? Did you go down with other people? A Well, we went down with other peoples, Moss Johnson and several others, but we couldn't make it. Q Were you allowed to take the test? Ww ! 4 296 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 249 24 25 A Well, we tried to take the test, but we never could pass. Q What sort of questions were they asking you; do you remember? A Well, it has been a pretty good while ago and it is hard to remember. THE COURT: Was this prior to the voting rights act of 1964 or ¥852 A Yes, sir. THE COURT: I will take judicial knowledge that the board of registrars presented me with a list of questions prepared and I couldn't answer some of them. They called me and asked me what were they to do with them -- not what they could do with them, but did I know the answers and to some of them I didn't. MR. MENEFEE: This Mr. Moss Johnson you mentioned, was he active in the area in trying to encourage blacks to register to vote? A Yes, he was. Q How did he go about his operation? A © Well, he would -- he was working at the yard there 297 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA and he would ask them, you know, to take them down to get them registered or to vote. Q Would he take a bunch of his co-workers? A Yes, sir. Q Was he very successful in this effort? A Well, he was taken down there, but he wasn't successful. Q He kept trying? A Yes ‘sir: Q Vhat was ....... MR. ARENDALL: What time frame? THE COURT: Yes, give us the time. MR. MENEFEE: Could you give me some estimate on this time? THE COURT: Within a period of time -- did the six times occur between what years? A I believe this was in the fifties, I believe. MR. MENEFEE: Did they extend into the sixties? Did you attempt to register in the early sixties? A We tried it in 1960, but we wasn't successful until 298 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 351 24 25 after the voting rights act passed. Q Okay. THE COURT: When was the first time ‘and when was the last time? A I believe it was the early sixties, I believe, the last time. THE COURT: And the first time? A As close as I can get to it, I believe somewhere in the late fifties. THE COURT: All right. MR. MENEFEE: Q Since you have been registered to vote, have you regularly voted? A Yes, sir. Since I have become a qualified voter I have missed one time voting. Q When was that? A This Past coe. sie THE COURT I don't think that is necessary. A This past May. THE COURT: Let's get on to more meaningful things. 299 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA = HE Le be 1 2 Do you remember demonstrations in front of City Hall 3 one time in which Mr. Langan, I believe, came out? 4 A Yes. Mr. Langan. 5 Q What action did Mr. Langan take, at that time? 6 A Mr. Langan come out there and asked them what did 7 they want and broke it up and told them whatever they wanted 8 or whatever problems they had to come down to City Hall and 9 see them and he would get together with them and work their 10 problem out. 11 || THE COURT: 12 Again, I express reluctance about cutting off a line 13 of questioning, but I think this area is fairly well 14 established and nobody really disputes what happened. If it 15 comes up, I will let you offer it later. Just in the interest of moving this case along in 16 17 the areas where there seems to be no great dispute, let's don't is whip it to death. i MR. MENEFEE: 5 Over the years, the non-partisan voters league has 1 endorsed a fair number of candidates; is that correct? 5s A That is correct. 5 Q How do you go about this process candidates come in and are interviewed? Do you endorse a candidate in every race? 24 A Well, most of it. 25 300 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 556 _ : - 2 2i=q How do you make a decision? Suppose you have two 3 || candidates of which are very attractive, very good? 4 A Well, we have what they call a screening committee, 5 and the screening committee talks to them and the screening | 6 committee will make a recommendation back to the membership ] 7 and what candidate they choose they are what they call picking 8 the lesser evil. | 9 Q Are you often faced with this situation of picking the 10 lesser of the evils? 11 A That's right, pick the lesser evil. 12 Q Do you think all of the candidates endorsed by the 13 non-partisan voters league that have been elected have treated 14 blacks fairly? 15 (|A No. 16 Q Why do you think they may not have treated you fairly? 17 IIA Well, in one way, seeing that the County hasn't. 18 Q Why do you think they don't treat you fairly? 19 A While the County come in the black community and 90 ||Promise they are going to do this for them and they give the 91 blacks red dirt and oyster shells on the roads. 99 Q Let's see, you were a close associate of Mr. John ,3 ||LeFlore, I believe? > A Yes, sir. 25 Q Do you know if Mr. LeFlore had, over the years in behalf ol FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 351 1 9 of the non-partisan voters league, written police commissoner 3 Doyle about problems many times? 4 A Well, he had written to Mr. Doyle numerous of times. 5 Q What was the feeling of you and John LeFlore and 6 members of the non-partisan voters league about the response? : MR. ARENDALL: 2 If your Honor please, he is being asked to testify 9 to mental attitudes of a dead man and others and I object to the question. | 10 3 THE COURT: | 5 No. What the black community, what their feeling about it is, and he is familiar with it and his own and I 13 will let him testify to it. 14 A Well, Mr. LeFlore, he wrote to Mr. Doyle several times 15 ANG es ies 16 || THE COURT: 17 They didn't ask for details. The question was, what 18 was the feeling? 19 A We felt like Mr. Doyle didn't give, not only to 20 Mr. LeFlore, but to the black community, what this -- he 21 didn't give the black community good representation. 22 Q Do you remember reading or hearing of statements of 23 24 25 Mr. Doyle being tired of John LeFlore? A Yes, sir. I believe he said that on T.V. and also 302 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 533 1 ? LeFlore was -- I don't know whether he talked to Mr. Doyle 3 on this particular incident, but I believe he was trying to 4 get in touch with Mr. Doyle on this killing incident, this 5 Cecil McMillan case. 6 Q Mr. LeFlore had a good bit of difficulty in getting 7 in touch with Mr. Doyle? 8 A I would say he did. 9 Q Mr. Mims is in charge of public works and oversees the 10 garbage workers, I believe? 11 A Right. 12 Q Was the non-partisan voters league or you involved 13 in this garbage strike? Did you follow that fairly closely? 14 [A Well, some, we did. 5 {0 And did you think that Mr. Mims was easy to get in 16 || touch with and deal with on this matter? 17 A Well, some of the people that worked for the City 18 say he wasn't. 19 Q Mr. Mims come into the black community very much? 20 A Well, he come in there, like most politicians, when 91 election time comes. 29 Q Do you see much of him otherwise? 95 A No. 9 Q Do you think the City Commission generally treats 25 blacks fairly? 303 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 264 24 25 No. "> MR. ARENDALL: No further questions. MR. MENEFEE: That's all, your Honor. THE COURT: You may come down. Whom will you have next? MR. MENEFEE: Leonard Wyatt. LEONARD WYATT the witness, called on behalf of the Plaintiffs, and after having first been duly sworn to tell the truth, the whole truth, and nothing but the truth, took the stand and testified as follows: DIRECT EXAMINATION BY MR. MENEFEE: Q This is Mr. Leonard Wyatt, forty-three years old, lives at 473 West Creek Circle in Mobile. He is married and has three children. Attended Springhill College for three years. He was born in Mobile County and has lived here for the past twenty vears. He is in the real estate business, | FEDERAL STENGCRAPHIC REPORTERS | P.O. BOX 1971 | MOBILE, ALABAMA 565 1 1 2 a member of the Chamber of Commerce and board of directors 3 of the Salvation Army. 4 Is that a correct statement, Mr. Wyatt? | 5 A That is correct. | 6 Q Mr. Wyatt, would you tell the Court what your political | 7 experience amounts to? Were you a candidate this passed | 8 House ninety-nine election? 9 A Xes, sir. 10 Q Have you been active in other political campaigns? 11 A Not as a candidate, but in support of candidates. 12 Q In recent years, who were they? 13 A I have not solicited. I have actively supported " people that ran for public office in terms of being in favor 15 of their candidacy. 1 Q I see. You have not worked, actively worked, then, 0 in any other campaigns? i A No, sir. i Q Mr. Wyatt, why did you decide to run for vacant oh House ninety-nine seat? 9 A I felt, first of all, the need to render some type 2 of service to the community. I felt iminently qualified to n hold that position and that is basically it. 2 Q Give me a ballpark figure of how much money your % campaign cost you. 343 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 566 24 25 A Approximately four thousand five hundred dollars. Q Were you able to go around the community and shake a lot of hands and pass out literature? A Yes, sir. Q Did you make the runoff? A No, sir. Q Why had you not sought political office prior to this, Mr. Wyatt? A I never envisioned the possibility of winning before. Q Did House ninety-nine present an attractive possibili for winning? A It prompted the possibility for winning, based on the fact it was confined to a district in which I lived and in which I could move freely and meet most of the people who would be voting. Q Mr. Wyatt, would you consider running for the Mobile City Commission in the present at large elections? A I doubt it. Q Why is that? A First of all, I would have to be realistic in terms of the cost factor, the probability of raising enough money to support that kind of campaign. The money would not probably be forthcoming and the other thing would be that generally these elections seem to 306 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 267 24 25 get wound up, some how, along racial lines and I would have to look at the numbers and kind of be overwhelmed by that. Q Okay, sir. Mr. Wyatt, do you have within the black community -- there are a number of organizations that endorse candidates such as the non-partisan voters league and the voters registration organization that are two of them. Can you give us your opinion on the influenceof the non-partisan voters league endorsement within the black community? A Of the non-partisan voters league? Q Yes. A I think they probably affect approximately twenty ‘percent of the black community. I don't think they are as effective as they have been. I think their impact on elections is diminishing somewhat, but they do have some effect. Q And how about -- how are the other endorsing organiz- ations such as voters registration organization, are they very effective? A I have no idea. I only heard of the VRO when I was a candidate and happened to be interviewed by them. Q Mr. Wyatt, what sort of -- during your campaign, what sort of complaints and problems did the voters bring up with you? Did you hear many issues raised, community problems? 307 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 572 toward ten in terms of going out in the community or they were at the other extreme on being down, being very vocal against the people in that community, so that generally speaking people would have voted whether they had endorse- ments or not and those votes would have been lopsided. Q All right. You are telling us then that you think the lopsided vote in ward ten was the product of the indivi- dual choice of voters? A I am saying that the attitude of candidates when you talk about ward ten and that point in time I am saying the attitude of candidates toward candidates in the black community dictated, for the most part, how those people voted. Q Now, Mr. Wyatt, you have spent many hours in City Hall, haven't you? A Spent a few. Q You are in the real estate business, aren't you? A Yes, sir. That is correct. Q You have been down there on many zoning matters, haven't you? A A few. Q You have spent many hours with Mr. Mims and you have met with the other -- all three Commissioners, haven't you? A All three Commissioners. 308 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA LE SRE I Ob eee i ere SR ee 573 Q Never had any difficulty getting access to them, bearing in mind,of course, the fact that they have a few other things to do. You have ready access to the City officials, don't you? A Yes. MR. ARENDALL: No further questions. REDIRECT EXAMINATION BY MR. MENEFEE: Q Mr. Wyatt, Mr. Flannagan received the endorsement of the non-partisan voters league. Did it appear that he spent a good bit of money and waged an active campaign? Did he run a hard race? A He ran a race and spent a good deal of money, based on what he produced. I have no way of knowing that for sure. Q Does the fact that he ran so poorly against Mr. Buskey indicate anything about the strength of the non-partisan voters league endorsement? A I would think that there are more independent thinkers within the black community today than say in the past, which would have diminished their effectiveness. 309 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 574 1 2 Q Mr. Wyatt, being in the real estate business, I 3 suppose you have been around the City a good bit. 4 Do you have an opinion as to whether or not black B neighborhoods that you have worked in receive less equal 6 treatment in regard to municipal services than white 7 || neighborhoods? 8 A I would think that black neighborhoods have received 9 less equal treatment than whites in terms of parks, playgrounds, 10 recreational buildings and so forth. 11 Q Mr. Wyatt, the access that you have had at City 12 Hall, was that in regard to real estate matters or in regard 13 to political matters? 14 A Basically, in regard to real estate matters. 15 MR. MENEFEE: 16 No further questions. 17 18 RECROSS EXAMINATION 19 BY MR. ARENDALL: 20 Q Have you ever sought access to the City Commissioners 21 on political matters? 29 A I may have. I don't recall a specific thing. 23 Q In any event, you can talk to them and nobody says 24 25 that we can only talk about real estate matters; is that right? S10 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA A That is correct. Q If you want to go down there and discuss the presidential election or the local elections or a political problem you are satisfied you can speak to Mr. Mims and Mr. Doyle or Mr. Greenough, aren't you? A Sure. Q Now, you haven't really made any study to determine whether or not there is a reasonable basis for the location of the various parks, playgrounds and recreational buildings in Mobile? A No. I don't have to. Making a study would not be a thing I would normally do. Observation tells me a lot of things. Observation tells me, for example, that the park at Sage and Dauphin, for example, is an excellent place. Observation tells me that the park where Hank Aaron grew up and played as a boy at Hamilton and is willfully neglected. It tells me the park in Plateau, which was, in fact, given to the City by a member of the community is just now in the process of having something done. I don't have to make a study to determine what is being done for one community as to another. Q You mentioned Sage, Dauphin and the park at -- the Kidd Park in Plateau? 575 311 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA wh w 24 25 Q Mr. Smith, have you ever been to any meeting at the City Hall? A No,. sir. Q Have you ever talked to any of the current City Commissioners? A Yes, I have. Q Which one? A I talked with Mr. Mims and I talked with Mr. Doyle. Q Is that down in their offices or where? A In their office. Q As a matter of fact, you saw Mr. Mims about some repairs to Bellsaw Avenue and it was patched after that, although it wasn't re-paved, at that time; isn't that right? A He directed me to the working committee or whatever they call it. Q So, you were able to see him when you wanted to see him? A Yes, I was. Q And the street got patched, didn't it? A That's: right. Q And you have talked with Mr. Doyle about police matters on occasion, haven't you? A Well, involved with myself. THE COURT: 312 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 588 24 25 took the stand and testified as follows: DIRECT EXAMINATION BY MR. BLACKSHER: Q State your name and address, please. A Dan Alexander, 3667 Claridge Road, North. Q And your present employment? A I am an attorney. Q And you are also presently a member of the board of school commissioners of Mobile County? A That's right. Q How long have you lived in Mobile County, Mr. Alexander? A All of my life. Q Would you describe briefly to the Court your involvement in politics in Mobile County? A I have been involved in politics for some time. I ran for office the first time in 1966 for the Democratic executive committee of Mobile County. I ran for delegate to the Democratic convention in 1968. I ran for the state legislature in 1970. I also in 1970 ran for re-election to the county executive committee in the State Democratic executive committee. 343 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 392 A In my particular campaigning? Q Yes. A Only in '74. Q And that was when you ran against Mrs. Gill? A That's right. Along with four others. Q And in your opinion does the presence of a black candidate in the race in and of itself inject the racial issue into the campaign? A Well, you know, to the point that a black in the race would normally be expected to get the majority of the black vote. Q To the extent of what, sir? A That you would normally expect the black candidate to get the majority of the black votes. Q And the white candidate would not normally expect to get much of the black vote, is that it? A That's correct. Q What about what opposition to the black candidate? Would the converse be true in terms of the majority of the white vote going to the white candidate? A I think that you can say that a white would be expected to get a majority of the white vote, yes. Q Would the Clerk show Mr. Alexander Exhibit 92. The Clerk is going to show you, Mr. Alexander, a 14 FEDERAL STENOGGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 393 24 25 copy of the school board minutes which contain a statement by you concerning this most recent election where you were opposed by Mrs. Gill. BY THE COURT: Do you want this on the record? MR. BLACKSHER : No, sir. THE COURT: Let's go off the record. (OFF RECORD DISCUSSION) THE COURT: Back on the record. MR. BLACKSHER: Q On page twenty-three of the minutes you say these aren't the verbatim minutes of the meeting? A That's right. Q Regular meeting of the board of school commissioners, Mobile County. Held in the board room of the Barton Acamdemy Building on Wednesday, October 8th, 1975 at ten, A.M. On page twenty-three, Mr. Alexander made the followin comments. He thought it was hard to argue with the logic of having single member districts. That it was hard to argue with the logic of all the board members representing the same people County wide as opposed to each of the board 315 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 24 25 members representing a smaller area. That obviously Kane Kennedy offered the bill because of the desire to have black representation on the board. The political realism was that a black presently would not win a county wide race in this county. You were on public record as taking that position? A If I might explain, Mr. Blacksher, the minutes of the school board, the verbatim minutes, or the verbatim tape of the school board is our official record. THE COURT: Is that essentially what you said, Mr. Alexander? A Yes, that is not a verbatim statement. Q ~ But that is substantially it? A That is substantially it. THE COURT: That is the views you expressed? A Yes. Q You still agree with those views? A Yes. Q Would you express a similar view with respect to black persons running in the City wide elections? A That they can't be elected City wide? Q Yes. A Of course, the proportion of blacks and whites was 316 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 595 24 25 considerably different in the City than it is in the County. Q How different is it? A I am not real sure. THE COURT: Assuming there is a thirty percent black voter representation as opposed to a seventy percent white representation in the City, what would be your opinion? THE WITNESS: It would be my opinion that the blacks would have difficulty winning in the City wide elections. Q And you have expressed the view that there is a need for a single member districts in the context of Mobile school board, is that correct? A I don't know whether I said there is a need, but I said I was not opposed to that view point. Q All right. Mr. Alexander, are you aware of the legislation that was passed in 1964 that set up a mayor council form of government that could be adopted by the City of Mobile and was put to the voters in 19737? A I am vaguely aware of it. I am not sure of those dates. Q Were you active in Mobile politics in 19647 A To a very limited extent. I had one congressional race. 337 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 602 1 2 A To the best of my ability, yes. 3 Q What percentage of the school children in public 4 schools of Mobile County are black? 5 A I suspect forty-five percent at this time. 6 Q Do you consider that there are in the normal 7 voter's mind different considerations applicable to the 8 question of for whom they shall vote in school board elections gi from those involved in that determination as to the 10 person for whom they will vote in the City Commission 11 elections? 12 A I would think so. There is a lot more interest in 13 a City Commission race than in a school board race. 14 Q Normally, aren't the school board races fought out 15 on claims of who is and who isn't very interested in 16 school children and desirable of giving them good education 17 and things of that sort? 18 A Yes. 19 Q And in City Commission races hasn't it been the 20 practice over the years for various candidates to try to 21 tout: themselves as good, experienced businessmen, successful 929 in the management of enterprises and things of that sort? 923 A Along with considerable other claims. 2 MR. ARENDALL: No further questions. 318 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 612 24 25 DIRECT EXAMINATION BY MR. MENEFEE: Q This is Mr. John Randolph. He is sixty-one years old. He lives at 377 Bay Bridge Road in Magazine, Plateau area. He is married and has three children. He attended high school and received a diploma in air conditioning and refrigeration. Mr. Randolph has lived in Mobile County for fifty-seven years. He is the owner of Randolph Variety Store. He is a trustee for the First Hopefield Baptist Church. He is a third degree mason. A That's right. THE COURT: Is your residence in Mobile? A Yes, sir. MR. MENEFEE: Q Mr. Randolph, at the present time do you have a neighborhood civic club or organization? A Yes, we do. Q What is the name of your organization? A It's the Plateau Progressive Civic League. Q How long has that been in operation? A Approximately two years. Q I see. Prior to that, were there other organizations in the neighborhood that worked with civic problems? 319 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 618 24 25 of seven hundred feet or are there some instances where it is greater distances? THE WITNESS: Some instances is greater distances. THE COURT: Seven hundred feet is the smallest distance? I am trying to get a range of distances on the street that do not have fire hydrants available to them. THE WITNESS: I would say it averages around seven hundred feet. THE COURT: All right. Proceed. MR. MENEFEE: Q Mr. Randolph, I believe one time you mentioned some instances to me of drainage problems being so bad that it was washing bodies out of a neighborhood cemetary there, do you remember that? | A Yes, it has gotten that bad. Q Before you go on, would you tell me when this was occurring; if this was in the last couple of years that you had this type of problem? THE COURT: How long ago did that occur? THE WITNESS: 320 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA on \o 24 25 Oh, I would say within the last three years, I would say that. Between the last three years. The water that comes from the Plateau area crosses Bay Bridge and it crosses the Bay Bridge cutoff. It passes along the line of the Plateau Cemetary and that is the area that we have been able -- we have tried to get cleared up when it crosses Tenth Street. That is where it is cut off and it backs up there and causes quite a bit of damage to people who live along that area in that particular spot. MR. MENEFEE: Q Mr. Randolph, I believe you also told me that one of the major concerns of the borhan has been the park and recreation facilities. Would you describe the history behind that problem? A Well, we were interested in a park, and of course, there was a portion of land donated to the City of Mobile for parks. And it has approximately two acres, I imagine, two and-a-half acres. We felt that that was inadequate to serve the community. And we consulted the City Commission on this and we was told to try to find a more suitable site. Of course, we proceeded to try to do the same. So, at that particular time we were told that there was approxi- mately a hundred and twenty-five thousand dollars available to purchase a suitable site. And of course while we b I2.1 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA was looking for a suitable site, then we was told that the hundred and twenty-five thousand dollars had gotten lost in bureaucracy or something. I don't recall whether they used that term or not, but it got lost. So we had to stop there. We had hoped to have some type of recreation that would give us a year around recreational facility out there instead of just summer activities and everything is closed down. In this particular ward out there, ninety-nine four, there is approximately ten thousand or more residents in that area. And certainly a space of one or two or three acres in our judgement cannot accomadate that many children or older people, too, for that matter. That won't give them the recreational facilities that we require. Q How long has the neighborhood been seeking these recreational facilities from the time that you are talking about? A We are talking about a period of seven years. Q Has the neighborhood been active in making requests to City government to help them with all of these problems that you have talked about, the drainage, the streets, the hydrants, has this been a contimuing matter over the years? A Yes. I am sure the records will show that they have been consulted. As it relates to these previous -- | 620 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Nn an 24 25 Q Has there been previous meetings with the City government and the Commissioners during this period of time? A Well, I would say there has been a number of meetings down there trying to get some of these things corrected. Q Now, do you think that they have treated you fairly over the years, Mr. Randolph? A No, I don't think so. Q What did you get out of these meetings with the City government? A Well, as the saying goes a lot of promises at election time and that is just about it. MR. MENEFEE: That is all your Honor. THE COURT: You may cross him. CROSS EXAMINATION BY MR. ARENDALL: Q Mr. Randolph, did you live in the Plateau area in 19687? A Yes, sir, I did, Q Did I understand you to say that in the course of your interrogation by Mr. Menefee that the streets were all paved out in that area? 323 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 622 You told that gentleman that, didn't you? A That's right. Q Do you happen to know whether the following streets were not paved as of August 13th 1968; Greens Alley, Woods Lane, Adams Lane, Jones Lane, Edwards Avenue, Brian Street, Semmerland Lane, Josie Lane, Wallie Lane, the east end of Edwards Street, the east end of Summer Street, the east end of Bay Bridge Road and east part of Front Street? Were they all unpaved as of 19687? A I would say so, yes. Q So, there ‘has been some improvement in street pavement in that area since 1968 has it not? A It has. Q You mentioned improvement in the lighting, too, haven't you? The lighting? A Oh, yes, it has been some improved. Q Now, as a matter of fact you have known Commissioner Mims for years, haven't you? A Quite a few years. Q You have known Mr. Doyle, also? A Quite a few years. Q Do you happen to know Mr. Greenough? A Not as well as I know Mr. Doyle and Mr. Mims. Q But you have met with Mr. Doyle for example about 324 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 623 traffic and other problems in the Plateau area, haven't you? A I have. Q You have no difficulty getting him to meet with you and consider those problems, did you? A No, 1 didn't. Q You didn't get everything you asked for necessarily, but you were able to get a meeting and consideration, weren't you? A I was able to get the meeting. Q Now, what was it that you asked Mr. Doyle to do that wasn't done? A Well, there was one thing in specific that we haven't or we are but we haven't -- we have been having trouble with police protection in that area. We feel like that coverage of patrol is too large in order to give adequate protection when needed. THE COURT: In other words, you mean that they cover too large an area? A Yes. THE COURT: You don't mean that there are too many of them out there? A That's right. 325 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA They cover too large an area. For instance, sometimes when we call a policeman for that area he could be in what they call blackjack in Saraland avenue -- in fact I have called a number of times when my -- especially when my alarm would go off in my store and I have timed it and sometimes it takes approximately thirty minutes or more for a policeman to arrive on the scene. MR. ARENDALL: Now, Mr. Randolph, I don't want to interrupt your account of this, but let me ask you this. Do you happen to know how the city determines the number of patrolmen to be assigned to a given area of the city? A I don't know that. Q Then you do not know whether or not they keep statistics on the incidents of crime and determine the number of people that patrol that area on that basis? You don't know anything about that? A No. Q . You just know that you are not satisfied with how long it has taken and what you consider to be an adequate coverage] isn't that .righr? A Right. Q Now, as to Mr. Mims. Have you ever met with Mr. Mims about any of these area problems that you have talked about? y D 3 FEDERAL STENOGKAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 625 1 9 A We have. 3 Q When you say we, you are talking about this organiz- 4 ation that you had? 5 A Well, yes, I can say we or they -- 6 Q You have had meetings with Mr. Mims before for your : Plateau Progressive League was formed, didn't you? 2 A Oh, sure. ° Q And you had access to him and consideration by him of ” things such as paving and street lighting and so on, haven't you? 11 A Yes. 12 Q And do you happen to know whether the fire underwriters, 13 or whatever they are called, were the people that established 14 the standards for location of fire hydrants? 15 A No, I don't know that it is required in that area. 16 Q Now, who is this large land owner that you refer to 17 out there? 18 A Meaher. 19 Q Who ? 20 A Meaher. 2 Q That's Mr. Gus Meaher's family, isn't it? 29 A Yes. 23 Q How many acres do they own out there? 24 A 25 Well, I would say in the corporate area of Mobile 327 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA ; : i fe3d7 1 " county region and this was the survey of Mobile. i* {| THE COURT: 4 General planning agency authorized by whom? 5 MR. BLACKSHER: 6 State law, your Honor. These regional planning 7 agencies took the place of what used to be councils of local 8 government. They are authorized for planning regions which 9 are set up here in Governor Brewer's admimistration and they 10 generally have representation and get money -- 11 THE COURT: 12 I just wanted to know from what source it comes. 13 MR. MENEFEE: 14 The next witness is Mr. Austin Pettaway. AUSTIN PETTAWAY the witness, having first been duly sworn to tell the truth, the whole truth, and nothing but the truth, took the 18 19 stand and testified as follows: 20 91 DIRECT EXAMINATION 99 BY MR. MENEFEE: Would the clerk hand Mr. Pettaway a copy of 21 Plaintiff's Exhibit 91. 25 Mr. Pettaway, take a look at those papers there. 328 ; FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 638 24 25 MR. ARENDALL: Let me look at this Exhibit 91, also. MR. MENEFEE: This is Mr. Austin Pettaway. He is fifty-seven years old. He lives at 1528 Lincoln Street in Mobile. He is married and has six children. He has lived in Mobile County all of this life. He works for the postal service. Is that a correct statement, Mr. Pettaway? A That's right. THE COURT: Do you live in Mobile County? A That's right. MR. MENEFEE: Q Mr. Pettaway, have you and other residents of Lincoln Street been active in trying to change municipal services to other streets for drainage and such? A Yes, I have. For more than fifteen years. Q Have you worked actively with Reverand W. T. Smith? A That's right. Q I believe you mentioned to me a problem of drainage in your area? A Drainage and we also asked for a traffic light. We haven't got a traffic light out there. The drainage is being worked on now. 329 | FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 MOBILE, ALABAMA EER EE : 639 1 2 0 When did they start working on this drainage? 3 A I would say about three weeks ago or four weeks ago. 4 00 During these more than fifteen years have you and 5 Reverand Smith and others in the neighborhood that with the 6 City Commissioners and representatives of the City 7 government? 8 A That's right. 9 Q Now, what was the outcome of most of those meetim gs? 10 A Well, most of them was at this time we didn't have 11 money for this venture. And then some time it was promised. 12 Mr. Mims has been out and looked at our street and he promised 13 || and that was it. 14 | Q Do you remember when Mr. Mims came out? 15 | A No. It was three or four years ago, I think. 16 Q Would you describe the drainage problem to us, please]? 17 A Well, whenever we got a heavy rain the sewer and 18 all would back up in our yard. It would wash all of the soil 19 out of our yard and everything. The water in the street 20 would run up in our yard and wash our yard away. 91 Q That Exhibit before you, number 91, are those part 29 of the petitions and letters that you and Reverand Smith 7 and other residents on behalf of Lincoln Street have 51 presented? ” A That's correct. 330 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA ee : Lent BH0 2 Q You forwarded those on to the city government? 3 A That's right. 4 Q Do you think that the city government has treated | 5 Lincoln Street fairly over these fifteen years or more? 6 A No; YX don't. 7 Q Why do you say that? 8 A Because when they say that there is no money available 9 and other ventures were being done. Our street was still 10 there. | 11 Q Do you know how big a paving venture this is, how | 12 much money is involved? 13 A No, I don't. But they say it will cost twice as 14 much as it would if they had gone ahead and done it when we 15 | first asked for it. 16 Q How long have you heen making this request of the 17 city? 1s | A Over fifteen years. 10 Q If I suggested a figure of about thirty-five thousand 20 dollars for this venture, would that sound reasonable? 9 A I couldn't say offhand. wo MR. MENEFEE: » Your Honor, we move the admission into evidence of 5 Plaintiff's Exhibit 91, the petitions of Lincoln Street group} 2 THE COURT: 331 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA A No, sir, that's not fair, that's not right. Q You say it's not a fact that quite recently has your group been willing to stand any assessment for this work? A I told you what we all realize that we had to pay an assessment. We realize that. THE COURT: Were you willing to? THE WITNESS: We were willing to. MR. ARENDALL: Q Now, was Mr. Langan sympathetic to your- problems out there? A He came out after one of the rains and saw what kind of condition it was in. Q But he didn't get the work done for you? A No, he ‘did not. Q Are you telling us that Mr. Langan did not get that work done for you even though you were willing to stand the cost of assessment for it? A No, he did not. Q Did you tell us that at that time, you were willing to pay the assessments to get the work done that Mr. Langan wouldn't do it? A No, sir, he did not do it. 332 | FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 1 | MOBILE, ALABAMA A - oh 645 2 THE COURT: 3 What he really wants to know if you are willing to 4 pay the assessment? 5 THE WITNESS: i 6 That's right. We were willing to pay the assessment. 7 MR. ARENDALL: 8 Q Mr. Pettaway, I hand you an Exhibit which has been 9 marked as Defendant's Exhibit 81. I call your attention to | 10 the fact that the top letter on this is dated September 22, | 11 1974, that is the juris to the Honorable Earl Joiner of the 12 Public Works Department., City Hall. 13 Were you a party to that petition referred to in 14 that letter? 15 A I am not sure. 16 Q Can I call your attention to what appears to be your 17 signature on the second page. Is that your signature? 13 A That's my signature. 19 Q And that seeks improvement in your streets out there, 0 doesn't it? ol A That's right. 3 Q Now, I call your attention to a letter of November 1, n 1974, from Mr. Nickel senior engineer to Mr. Joiner, in which 5) he refers to a cost estimate of lowering the existing street and providing new jointed system, curves and gutter and 333 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 646 pavement estimated to cost forty-two dollars per lineal foot. Were you advised of that? A Yes, I was. Q That is a breakdown of how the cost is computed, is it not? A That's right. Q Now, I call your attention to a letter addressed to Mr. Joiner by Richard Smith, City Clerk, in which Mr. Joiner is advised that the board € commissioners have asked Mr. Joiner to tell the interested parties that the matter has been considered by the commissioners and that he, Mr. Joiner, is authorized to obtain additional information about the matter. Did Mr. Joiner tell you that? A No. Q Nobody from the City Hall ever told you that the commissioners had asked any one to go get additional infor- mation? A No. Q Then on November 7th, a letter from Mr. Richard Smith to Mr, T. K. Peevey, Public Works director. MR. BLACKSHER: November 7th of what year? MR. ARENDALL: Nineteen seventy-four. e d 334 | FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 | MOBILE, ALABAMA il 1 647 1 2 Advising, Mr. Peevey quotes, ''The board of 3 commissioners in conference, November 5, 1974, reviewed the 4 estimate you submitted in the amount of thirty-six thousand 5 five hundred and sixty-six dollars to rework and lower 6 Lincoln Street from Stone Street to Dunbar Street." /f "The Commissioner requests that you advise the interegqted 8 private property owners. The city will not be able to 9 correct the situation at this cine inasmuch as the monies | 10 are not available in the city budget." 11 Did Mr. Peevey so advise you? 12 A No, .1.didn't .zet that. jl | 13 Q Did you understand that the question was money and | 14 all you had to do was say that we would stand in assessment | 15 and they would do it? 16 A No, I didn't get that understanding. 17 Q All right. Here is a letter dated November 13, 1974, 18 from Mr. Joiner, of the Public Works Department addressed 19 to Reverand Smith, he is the one you were working with? 20 A That's right. 91 Q Re: Lowering and repaving Lincoln Street. 99 You observe a reference there to repaving Lincoln 23 Street? 24 A Yes. 25 Q Do you know of any reason why Mr. Joiner would have 335 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 648 2 talked about repaving if it had never been paved? 3 A I don't know why he stated it but it has never been 4 paved. 5 Q And Mr. Joiner then did as he had been instructed to 6 do. Referred the cost of thirty-seven thousand dollars and 7 the unavailability of funds? 8 A That's right. 9 Q I want to call your attention to a letter dated 10 October 27, 1975, from Richard Smith to James T. Chaplin, 11 assistant engineer. Saying, ''The board of commissioners 12 this day and meeting with the delegation of Lincoln Street 13 instructed you to proceed to initiate a paving improvement 14 venture for Lincoln Street as soon as possible." 15 Were you informed that that action was taken? 16 A Yes, I was. 17 THE COURT: 5 What was that date? io MR. ARENDALL: 0 October-27, 1975, 5 THE COURT: That was in authorization to proceed with work? MR. ARENDALL: 23 Yes. 24 Q Now, there is a notation up in the top, Judge. Lincoln 25 336 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 649 24 25 Street paving improvement venture number one eighty initiated 1/13/76. Now, Mr. Pettaway, I ask you again if it isn't a fact that between November of 1974 and October of 1975 and indeed only shortly before October of '75 did you people agree to send assessments for having this work done? A I don't remember no one kicking on it. I don't remember no one kicking on the assessment. THE COURT: Do you remember an affirmative agreement? THE WITNESS: No, I don't. MR. ARENDALL: And you do expect to be assessed, now? A That's right. Q And you didn't expect to be assessed in the negotiati back at any time before that, did you? A I did, and I think the group did. MR. ARENDALL: I. offer this Fxhibit. Q Mr. Pettaway, you have referred to the facts that other areas in the City were paved since you started talking back in 1961 to the city commission? A That's right. PI1S 337 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Q And the time that you actually got it? Do you know the circumstances under which that other paving was done? Whether it was on an assessment basis or by some dividers who were paying for it themselves or otherwise? A No, I do not. All I saw was that the paving venture was going on. MR. ARENDALL: No further questions. MR. MENEFEE: No further questions. MR. ARENDALL: Judge, I overlooked the traffic lights. Do you know what the procedure followed by people where people want traffic lights? A No, LIL dont. But I was sent to Mr. Bradford. Q It is checked imto by the traffic engineer at City Hall, isn't it? A I was sent to Mr. Bradford and Mr. Bradford is an engineer, wasn't he? Q Right. He makes certain tests such as volume of traffic and number of wrecks and that kind of stuff to determi whether or not a traffic light should be put in . THE COURT: ne FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 | MOBILE, ALABAMA ] | 651 : we 2 Did he advise you of those things? 3 THE WITNESS: 4 Yeah, he did. | 5 | MR. ARENDALL: 6 No further questions. ; | MR. MENEFEE: | 8 No further questions. | 9 | THE COURT: | 10 You may step down. | 1 Who will you have next? | 19 || MR. MENEFEE: 2 Mrs. Mable Dotch . | | | i | MABLE P. DOTCH 16 the witness, after having first been duly sworn to tell 17 the truth, the whole truth, and nothing but the truth, took 18 the stand and testified as follows: 19 20 DIRECT EXAMINATION BY MR. MENEFEE: 21 Q This is Mrs. Mable P. Dotch . She is sixty years old. 2 She lives at 2529 First Avenue in the Trinity Gardens area of 23 Mobile. 24 | She is a widow and has fourteen children. She attended 25 | high school. She has lived in Mobile County all of her life. E 339 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA ie Pe A mt ee tro ho St LE 1 SOL 1 A Aa hota L835 1 your community? 3 | A Well, we have poor drainage. At one time they did 4 put in some drainage. 5 THE COURT: 6 What he wants you to do is tell how it affects where 7 you live. 8 THE WITNESS: 9 Oh, its bad. 10 THE COURT: 11 Tell us what you mean by bad. 12 || THE WITNESS: 13 | When it rains, it gets up and floods the street. You | 14 | have to wade down the street if you want to cross it. Cars | 15 || get stuck. First Avenue and Jessie Street flood too, ‘and the | 16 | water stands there so that if a car on Jessie Street will ] 17 ~ drown out. | 18 THE COURT: | 19 | Mobile has a general flooding problem. How long does | 2) the water stand after these tremendous downpours that we have? ] 7 A They stand for hours because I have a business on ] ’3 the corner and water comes in there and we have to close. ] 2 THE COURT: > Water comes inside the building? | A Yes. 340 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA A 656 1 5 2 Q What about the homes? 3 A Some of the people's homes, the water comes in but 4 they don't come inside of mine. 5 MR. MENEFEE: 6 Q Is this always a problem in the Trinity Gardens area? 7 A Yes. 2 Q How is water carried away? Is there big ditches in | 9 Trinity Gardens? 10 A Yes, we have large ditches. And some of the ditches 11 -- we have some pipe in some of the ditches. Some are still | 12 open with no drainage pipes in them. 13 Q Have you and other people in Trinity Gardens been 14 requesting the City Commission to help you with this drainage 15 problem? 16 A Yes. 17 Q How many years are we talking about, Mrs. Dotch? Is 7 it going back to the fifties or the early sixties? 9 A Yes, its' going back a long time. Ever since we 0 were incorporated in the City. 9 THE COURT: a How long has that been? 7 A I can't say. % Q MOre than ten years? i A I can't say exactly when. FEDERAL STENGGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA | 684 Fd | 2 | DIRECT EXAMINATION 3 BY MR. MENEFEE: 4 | Q This is Mrs. Janice M. McCamts. She is twenty- 5 two years old. She lives at 959 Ghent Street in Maysville 6 area of Mobile. She is single and she has attended three 7 years of college. She has lived in Mobile all of her life. 8 Is that correct, Mrs. McCamts? 9 A Yes, it is. 10 Q Miss McCamts, have you been active in the neighborhopd 11 organizations dealing with, I believe, traffic and some 12 drainage problems? 13 A Yes, not only that, but it's other things that 14 are happening in the community that shouldn't be. 15 THE COURT: 16 What community is that? 17 A Maysville. 18 THE COURT: 19 Ma'am? 20 A Maysville. 91 THE COURT: 99 Now, gentlemen, can you tell me where that part of 23 Mobile, Maysville, is? 94 MR. BLACKSHER: That is behind the Ladd Stadium, roughly. 342 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA THE COURT: | That would be more or less in the southern part. 4 | All right. | > || MR. MENEFEE: 5 Q Miss McCamts would you describe the traffic problems that you have been dealing with? 8 | A We have been having trouble with the company that | 9 has been of the area for some years. I believe it's over 10 twenty something years. They are a hazard to the neighbor- | 11 hood because we have children all around there. There is a | Le school zone right there in the neighborhood. That extends fpr | 13 a couple of blocks that the schools are in. This truck | 14 | company is right there at the corner of my street. Therefore | 15 ~ they use my street and other streets in the area for traffic 16 | going to their business. For loading zone and carrying out 7 and bringing in, you know, that type of business. 18 | Q Have you or other members of the organization 19 | attempted to contact the city government to see if they would 20 | help you alleviate this problem? 21 i A Yes, we have. We have gotten up petitions asking 22 | for help to prevent this hazard to the community. As far as 23 | disturbance or parking area and of course speed of the 2¢ | trucks and the loading. The loading is so heavy that we have 25 had this particular thing that happened. A truck that had rT 343 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA i 686 1 2 || this accident on the street that was turning over. The children 3 had just gotten out of school, so therefore any child could 4 | have gotten hurt and any matter. Because of this lumber that 5 | was falling over on the side in people's yards and everything. | 6 | The trucks are falling over -- I mean the lumber | 7 falling into the drainage which did happen, too. Because 8 | the drainage -- we have a problem as far as streets are 9 overflooding because the drainage isn't properly -- whatever. 10 But, anyway, we have no sidewalks. When you are | 11 || going to and from school or your place of business or home | 12 | or to the store, you don't have anywhere to walk. | 3.. As far as the cars coming by when the streets are 14 | flooded and spill water all over every one by speeding through | 15 | the streets, you know. 16 | Q How many schools are there in your neighborhood? | 17 A How many? | 18 Q Are there several, would you name some? | 19 A Yes. There are Williamson High School that is right | 20 next to a track which is a big ditch there. The railroad 921 track is right there and it doesn't have sufficient lighting 99 or warning of the train that is coming. 93 | Also cars have fallen in that ditch. 94 It is so deep that it can hold a whole car. 05 Around Williamson High School, there is George 344 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 687 Hall Elementary High School. We have another one a couple of blocks or so the other way, west, I believe. Q The second one you mentioned was George -- A George Hall Elementary. Q There are quite a few children in the neighborhood in these schools? A Yes, there are many children in the neighborhood. There are still children in the neighborhood that haven't reached the age of one year of age. Q And in your attempts to contact the city government have you been able to suggest an alternate route? A Yes, we have. We suggested a route. We drew to their attention what would be better for them and building. They are expanding so much. The ground that they are holding is pathetic. The houses in that area -- you can't sit on the porch. There wasn't -- there is a hazard of dust all over the furniture. You can't open doors or anything. This kind of thing is hazardous to your health as far as children as well. Q Is that a result of large trucks stirring up the dust? A Right. Also, at one part of the intersection in the street they put a sign there for no parking for the cars. Wherefore, their trucks can get through there and go to 4 D - 345 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 688 their grounds. Q I see. So, the city put up no parking signs? A Yes, at a corner so that no cars could park where their trucks -- and those trucks make that big turn there so they can go into their ground. The schools are right there in that area. There are children right there in that street where they are making that big turn. They are coming all times of the night, every day, all night long. No matter whether it is the weekend or not. See, these people -- these people don't have to stay in this area. Q You mean the company? A Yes. Q Is this Government Street Lumber Company that you ar speaking of? A Yes, Government Street Lumber Company and that -- there is this ail company next to it. That whole area -- it was -- it was packed off with trucks and trailers and whatever. It's a hazard because you can't see around the corners. There is dust and there is grass growing up so high. They haven't even taken care of it. As far as -- I don't know about the city -- grounding the area -- what they call 346 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 689 -- but just the same. The company hasn't made any move to clear this stuff themselves. Anything that comes out of there as far as animals and snakes and this kind of thing. This is the weather that they will come out. Q Has the city government done anything to help the situation? A No, they haven't. The only thing that they have done -- they ignore what the traffic. Even though -- well, they have one truck that comes through apprdximately two weeks in a month they clean the sidewalks. Therefore, -- Q The sidewalks? A Yes, the sidewalk. The streets are torn apart. It has a child going out playing in the streets or going out in the street they could easily get their foot caught in a hole in the street. Whereas these trucks has breaking in the streets and the City might go in and do some kind of work along in the streets and just- patch the streets up. So, the cars would have no way of running so long because you have problems with the cars having to carry them to a business to get them fixed. All of this kind of thing. With the drainage and this kind of thing. Q I am a little confused, Miss McCamts. Is there sidewalks in this neighborhood, or not? You said they come along and clean the sidewalks? 347 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA MORNING SESSION 9:00 o'cloc A.M, July 19,:1976 THE COURT: All right. Whom will the Plaintiff have? MR. MENEFEE: Clara Ester. CLARA ESTER the witness, having first been duly sworn to tell the truth, the whole truth, and nothing but the truth, took the stand and testified as follows: DIRECT EXAMINATION BY MR, MENEFEE: Q This is Mrs. Clara Ester, twenty-eight years old and lives at 705 Fisher Street in Crichton. She is single. She has a B.A. Degree in elementary education and has lived in Mobile County for six and-a-half years. She is presently employed with the Dumas - Westley Center, a neighborhood service organization funded by the United Fund and the Methodist Church that operates in the Crichton neighborhood; is that a correct statement, Mrs. Ester? A Xess, it is. k, 705 | each rain flow the erosion is like falling into the creek 348 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 706 1 Q Mrs. Ester, in our previous conversations you have described some of the drainage problems that are common in the Crichton neighborhood, property erosion and such. Would you tell us the types of problems the neighborhoods in the Crichton neighborhood experience? A Well, even before I came to Mobile I heard, after arriving in the City of Mobile and working in the Crichton area, that several homes were on the edge of the creek and where homes, at this point, are getting closer and closer to the boundary point. A lot of home owners are fearful and even people that are renting are becoming very fearful that their homes | are eventually going to fall into the creek. There have been drowning situations where people in the area have rowed down the creek trying to find kids. Other problems have been one case we worked on and reported to the Board of Health was menigitis where a family that lives above the creek, all the children were ill and the board of health indicated that it was probably from that creek area that this disease was being carried. Rats are always in the creek and mosquitoes and kids are in and out playing in it and slip and fall into it. About four years ago we talked to Mayor Mims about fencing in the creek or 349 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Le lc = ra ——— meet — — ——— - eee SEER putting some type of piping in to close the creek up to prevent any more drownings or diseases that the creek is creating in that community. He indicated to about twelve people, I guess, in his office that they could not baby sit by putting fences up. They couldn't send people out to watch the kids and prevent them from getting into the creek. We felt it was a minor thing to fence the area up. Q Have there been any major improvements in the situation? A No major improvements. They have been out to -- maybe twice to clean it in six and-a-half years. Q You also described once to me a request, I believe, for an alternate route or rearranged route with the bus service to assist some elderly citizens in the neighborhood. What was the preblem that they faced? A Well, the Toulminville bus comes up Mobile Street and, in the past, it used to turn on Nall Street and go to Bay Shore Avenue, coming back north and then circling back around to the Toulminville area. Senior citizens in the area would have to walk from Nall Street up at least four blocks and then up an incline to get to Springhill Avenue to catch any type of bus to take them to town. There are so many old people in the Crichton community that it became a very serious problem for them with heart conditions and other C E y r 350 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 710 A It is in the area of Liberty Park which is also in Crichton. Q Does the Crichton Optimist Club have use of that park or that area? A To my understanding they do, right. Q In the recent past, has the Crichton Optimist Boy's Club been segregated? A Up to about two years ago. We have had kids to go up to join because it was where we considered closer, as far as recreational facilities. They were denied the opportunity to join there, but was told if they went to Davis Avenue, they could become members of the Boy's Club there. Q Has the Boy's Club operated a lunch program during the summer in the past? A For at least four summers that I was aware of, yes. Q You described to me previously the situation of black children not being able to obtain lunches on an equal basis with white children. Would you tell me about that, please? A Well, number one, they wouldn't be allowed in the building any way, and the lunches that were left over that 35% FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 711 24 25 the white kids could not consume during the day, that had to be eaten or was spoiled, they would be set out on the curb. I don't know if they were set out there for the black kids to eat or set out there for garbage, but yet the black kids would easily go to that area and get them a lunch and go home. Q This Boy's Club on Rice Street is now used as a voting center? A Right. Q And it serves the Trinity Gardens area, also, I believe? A Right. Q Would you describe some of the difficulties for citizens getting from Trinity Gardens over to the voting place at the Boy's Club on Rice Street? A They would have to come down St. Stephens Road and possibly pick up the Toulminville, Allison bus and get off at Cotton Street and, at that point, have to walk twelve blocks or so to get there. When I have been at the polls at six- o'clock taking people from Crichton, people to vote, several people from Trinity Gardens have walked up to there at six-fifteen and they would not get the freedom to vote, because of the hour situation. Q Prior to the Trinity Gardens citizens voting at the 352 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA | 212 te 2 | Boy's Club, did they vote in their own neighborhood? : A Yes. : | Q At the Trinity Gardens School? DAA Right. 6 Q So, thereafter, would you say that it was very 7 il difficult for a citizen of Trinity Gardens, if they don't 8 | have private transportation to vote at the Boy's Club? J | A I would say that it is very difficult. 10 | Q Are there many sidewalks in the Crichton neighborhoqd? I fla Probably you could count them on one hand. There 12 is not a whole lot of sidewalks in the area, no. 13 Q Why are sidewalks important in your neighborhood? 14 | A Number one is because kids SHEE dFe growing up 15 | in that community are basically from low income families. 16 They don't have adequate transportation to transport kids 17 | to other parks like Municipal or other parks that are, 18 I you know, surrounding them. So, the kids play in the street 19 | a great deal, which is not to any degree a safe situation. 20 | Even Mobile Street is a very busy street. That is 21 | the street the amublance goes down, as far as going to the 29 | University Medical Center. So, the kids had to play with 23 | no place to ride bikes and they end up in the streets all 24 | the time. 95 I feel that it is a dangerous situation. If the i 353 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Do (O 21 ] sidewalks were available, the kids would be in a little safer area. There is no basic recreation for them where they can walk comfortably to a program. Q In a neighborhood such as Crichton is there also a good bit -- neighborhood interchange and foot traffic by the citizens? A Yes. People walk all the time. People sit on the porch and communicate with each other. This is their livelihood. This is basically all they can afford to do. Q Have most or all of these problems been called to the attention of the city government? A The majority of them, yes. Q Over a period of time, several years or more? A I would say for the six and-a-half years I have been here. Q What sort of response have you got? A Well, they send someone out to clean the creek during election time. You have a lot of city trucks in the area looking around. The basic problems that have been indicated to the city have not been solved. Recreation is still not in the Crichton community. The creek problems are basically there. They may have come out and cleaned the creek, yet the same type of situations are going on, menigitis, kids falling into the creek and 354 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 114 - 1 2 || houses in danger of their homes being washed away and so the 3 problems are still there. 4 Q Have you ever met with members of the City 5 | Commission? 6 ll A I have met with Mr. Mims as well as Mr. Greenough. 7 | Q Did you have a great deal of difficulty speaking 8 with these commissioners? 9 A The one occasion that I met with Mr. Mims, the 10 | difficulty was the fact that we had brought several people . | could come in the room and stand that was important that | they hear what he had to say about the issues that they | A I would say Crichton, at this point, is probably sixty - forty with the majority being black. from the community to speak with them, and they found it a big problem to seat every body. We felt like if people brought to them. He did meet with us, yes. Q You have certainly been in other parts of the City. Do you think your neighborhood has received equal treatment with white neighborhoods? A No, I do not. Q Would you describe the racial make-up of the Crichton neighborhood? Q And are those concentrated in certain areas or particular areas of the Crichton neighborhood, the blacks? 355 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 726 to tell the truth, the whole truth, and nothing but the trutl BILL ROBERTS the witness, after having first been duly swern took the stand and testified as follows: DIRECT EXAMINATION BY MR. BLACKSHER: oO » LO 3 LO > LO > O p O > LO >» L O State your name and address, please. Bill Roberts, 148 Tuscaloosa Street, Mobile. How old are you, Mr. Roberts? Thirty-five. What is your present employment? Vice-president of Cogburn Nursing Home. How long have you resided in Mobile? Thirty-five years. That is your whole life? That's right. What elective office do you presently hold? State Senate district thirty-five. That is the State of Alabama? That is correct. Would you briefly describe your history of involve- ment in politics in Mobile County? A In 1970 I was elected county wide to the Alabama 1= 4 356 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 127 24 25 House of Representatives and in 1974 I was elected to my present position in the Alabama Senate. Q You ran in the Democratic primary? A That is correct. Q Senator Roberts, you are the sponsor of a bill that is presently pending in the Senate of the legislature of Alabama that concerns city government in Mobile. Waat is that bill number? A The bill number is -- you know, I forgot the bill number. We have something like thousands of bills. I really don't know, right off the top of my head, what it is. The reason that I don't know what it is, there hasn't been a great deal of action on the bill recently. I will have to check. I really don't know what the bill number is. Q Would you describe, please, what this bill proposes to do with the city government in Mobile? A Well, essentially, it would provide, based upon a petition and a public referendum, it would provide the City of Mobile with a mayor-council form of government and the council would be made up of nine members. It is based on the -- essentially, the same legislation that provides the City of Birmingham with a mayor-council form of govern- ment. 357 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 728 24 25 Q This would be a form different from the mayor alderman form presently contained in the general laws of Alabama? A That is correct. Q You would have a mayor running at large, correct? A That is correct. Q How would the council members, the nine council members, be elected under your bill? A Seven of the council members would be elected from districts and two of the council members would be elected at large, city wide. Q Mr. Clerk, would you hand the witness exhibit 62, and Plaintiff's Exhibit 63, please. May it please the Court, Plaintiff's Exhibit 63 is a summary prepared by Mobile United of a debate that occurred there on May 28, 1976, I believe; isn't that correct, Mr. Roberts? A That is correct. Q In which Mr. Roberts participated with Mr. Ed Thornton and Professor William J. Harkins. Mr. Roberts...... THE COURT: What number is that? MR. BLACKSHER: | FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA ue 229,37 1 2 Sixty-three. Would you tell the Court two reasons 3 that you have introduced this bill? 4 A Well, basically, the two reasons -- the major reason 5 is that, in my own opinion, the mayor council form of 6 government is a better form of government. I say that after 7 having served almost two years now as the chairman of the 8 local government committee in the Alabama Senate. So, I ¢ have become somewhat familiar with forms of muncipal govern= 10 ment and I think that, of course, there are advantages and 11 disadvantages to the various forms. 12 In my opinion, the strongest form is the mayor- 13 council and I think this is probably indicated by the fact 14 that a majority of the cities in Alabama have this form of 15 government and over the last ten years they have been moving 16 toward this form of government and this situation also 17 exists on a national level. 18 The second reason is I feel, under the present 19 form of government, the commission form of government, the 20 individuals or all segments of the city do not have an 91 opportunity to be represented. So, I said at the Mobile 29 United meeting and I repeat again that this bill will give 9 wider representation, in my opinion, to the various segments 21 of the city than the present form of government that we have ”% had. 359 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 730 24 25 Q How would it accomplish better representation? A Well, under the present system you have three commissioners that run city wide, that run at large, and under the mayor council you would have a mayor that would run at large and you would have at least seven councilmen that would be running from districts. I think it is quite obvious that you would have more individuals involved in mumicipal government than you presently have, although they would be involved at a different level than you have now. It would be an executive - legislative situation, whereas, at the present time, you have, whichever way you want to look at it, either an executive or legislative situation. You do not have the checks and balances provided by a legislative - executive arrangement. Q Why have you proposed that two of the council members run at large in seven districts? A Well, basically, two reasons; one, is that I would hope that this was something that I hoped that with certain established members of the community would be -- find more acceptable, and the second reason, would be that having experienced the districts...... THE COURT: When you say more acceptable, you mean make it 360 —- 361 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 731 easier to pass? A That is correct. THE COURT: ~All right. A The situation that we have in the legislature, we have had some difficulty in that in running from districts that the legislators have had a tendency, in some instances, to be concerned just with their particular district and the interests of their district and so I felt that by providing two councilmen, at large, that any discussion that took place on the council regarding various municipal issues that these individuals could provide some balance. An individual, for example, with a district, concerned with a project just in his district or a situation that exists in his district, there would be at least two members on the council to provide the prospective of looking at it from a city wide point of view. Q Was there any other city's modeled like the mayor council form that suggested this seven - two council to you, or is that your own idea? A That is my own idea. To my knowledge, I do not know of any cities that have that arrangement. Q Now, on the question...., THE COURT: 362 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 732 To that extent, it is different from the Birmingham plan? A That is correct, your Honor. MR. BLACKSHER: Q The question of why the representation was debated on this occasion at the public forum of Mobile United; is that correct? A That is correct. Q I believe that the person, Mr. Thornton, who was opposing your bill made the point that the present mayor, city commission form of government, protects majority control; is that correct? A He made that statement. That is correct. Q And in fact, I believe Mr. Thornton said that among those who favor minority rule we have only Federal judges and the present delegation from Mobile County; is that correct? A He made that statement. That is correct. MR. ARENDALL: If your Honor please, aren't we getting into the rankest kind of hearsay? THE COURT: Well, if this is a debate before the legislature. MR. ARENDALL: 1» 363 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Ww w 24 25 No, sir. Before the Mobile United, a local group of citizens. THE COURT: Well, I think it is totally irrelevant any way. MR. BLACKSHER: All right. Q Mr. Roberts, haven't you.... THE COURT: It is argumentative. Go ahead. MR. BLACKSHER: Q Mr. Roberts, haven't you also said publicly, includii this debate, that one of the reasons you introduced this bill was the pendency of this law suit? A Yes. I do feel that -- I did originally introduce the bill for that reason. I intended for sometime to introduce the bill, because of the two reasons I stated earlier, but it was after that I had decided to introduce the bill that I became aware of the law suit. I did make the statement that I felt that too often in Alabama, on the State level, particularly, for example, the prisons and the mental health situation, that the legislature has not met its responsibility and in those situations the courts have moved into that area because of the lack of responsibility of the legislature. ng 364 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 734 24 25 I have stated on a number of occasions we obviously do have a problem here, in my opinion, and we do not have representation in all areas of the city and, for that reason, I introduce the bill and then I became aware of the law suit. Q Now, Mr. Roberts, it is a fact, isn't it, that the 1964 or '65 bill or act that set up the optional form of government concerning which there was a referendum in 1973 differs from your present plan in that the former system had a weak mayor council system and also provided for the council to run at large and those are two major differences in your bill; isn't that correct? A Those are just two, but there is no comparison except in name. There is absolutely no comparison between the bill that the legislature passed in 1965 and was voted on in '73 and the bill that I am proposing. There is absolutely no comparison. Q Is it a fact that you have proposed that some of the council members run out of single member districts in order to provide minority groups in the city a better opportunity to be represented in the city government? A That is correct. Q Is it fair to say that since you have been associated with the Mobile county legislators that they have | | 365 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 735 understood that in order for blacks actively to be Saki pi and to be able to elect candidates of their choice it would be necessary for there to be single member districts? A Are you referring to my experience with the legisla- ture? Q Yes. A Yes. When I served in the House of Representatives we ran county wide and there were ten members of the House, six of them were attorneys that lived within the immediate vicinity or the same neighborhood. Now, under the district situation, which I didn't particularly care for the plan, but nevertheless, we had districts and we have a wide range. We have an individual who is an owner of a cleaning establish ment. We have a man that has been involved in service statioi work and auto repairs. We have, I think, a black attorney, a young white attorney, and so we have a wide range of individuals that are involved in the legislature now that wouldn't have been involved in years past. So, in that respect, legislative re-apportionment has been good, in my opinion. Q At the end of the Mobile United debate you said that, in answer to the question were the prospects for the enactment of your bill not too good, from slim to none, but the bil right now is being held up in committee by one 24 25 366 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 736 senator and is that still the case, Senator Roberts? A That is the case, to my knowledge. As you know, we have been in recess for one week and unless...... Q That one senator is Senator Perloff? A That is correct. Q Has he told the delegation why he is holding the bill up? A No. He has not, not to my knowledge. Do you have any idea? Yes. I have some idea, but I cannot prove that. It would be hearsay? > Oo > O It would be hearsay; that is correct, but I know why it is being held up. MR. BLACKSHER: No further questions. THE COURT: You may cross him. CROSS EXAMINATION BY MR. ARENDALL: Q Senator, there has been some testimony here that Mr. Buskey would have beat Senator Perloff for the position in the State Senate three hundred votes that had been cast or three hundred more votes by blacks. In other words, if 367 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 738 24 25 governments throughout the state and perhaps the history of Mobile home government under a mayor aldermanic form, did you not? A Yes. I centered most of my studies on the Birmingha situation and the Montgomery situation, because they were the ones most comparable with Mobile. Q Is it fair to say that one of the big problems that you found with the mayor council form to have was that of interference by members of the council in the day to day affairs of the municipality? A That is why I wrote the bill in the way that I did, because -- let's take, for example, the one we are all familiar with, the city of Prichard. It has a weak mayor. There are areas where councilmen can and do interfere and involve themselves in the day to day operations of the city. Under the bill that I have proposed, even if they go or approach a department head, without first going through the mayor's office, they can be removed from office. Q What are other differences? A The other major difference, the council people would be elected from districts and I understand from '63 or '73, those bills, that that was at large. Q I understood you to say, senator, that you patterned 368 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 739 - 24 your bill on the Birmingham bill. Does not Birmingham have a council where all the members are elected at large? A That is correct. And I have a letter from Mayor Vann recently where he stated that this was going to be a problem for the City of Birmingham. He felt that this was definitely a strengthening of the bill to place them in districts rather than having them running at large. Q And in either event, there is that major change from your bill and your bill in Birmingham? A That is correct. But in Birmingham they have nine councilmen from districts. THE COURT: They are designated. They have residences, but have to be elected, at large? MR. ARENDALL: What was that? I am not clear on that. A In Montgomery they must run from designated districts and they must live in those districts. MR. ARENDALL: In Birmingham they have residential requirements, all elected at large? A That's right. Q Two blacks in Birmingham currently serving, are they not? 369 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 740 24 25 A Yes. Q Do you know the racial composition? A It is five -- four to five whites and four blacks. Q Has Montgomery found that this kind of districting plan has produced a five four racial block on various issues brought before the council? A I discussed this with Mayor Robinson, who is a close friend of mine. He has the opportunity or privilege to attend the council meetings, but he cannot interfere in any way unless he called on. He has told me, with the exception of a few issues, one of which was to rename a street Martin Luther King Memorial Drive, that there has been very few problems. Q You have recognized, senator, that there is a risk of fragmentation of a community through single member districting, do you not? A I think that is debatable. You can make an argument for that. You can also make an argument for running at large. For me, it is very difficult to say. Q Is it fair to say that recognizing that reasonable men may reasonably differ about whether the City Commission form is a better form than the form we would have ..... A I acknowledged that before Mobile United and other groups that that is debateable. 370 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 752 = / member of the County Commission and Ron Webster, a local 3 business man, were they not? 4 A That is correct. 5 Q Who were the leaders in the first election? 6 A Gosh, it has been seven years, almost. 7 Q Wasn't it Mr. Webster? 8 A Mr. Webster, as I recall, Mr. Webster led the ticket 9 and, in the runoff, I think I won by twelve hundred votes. 10 Q Did you seek black votes? n A Yes. 12 Q Had you, on previous occasions, been to the non- 13 partisan voters league and sought votes for others you 14 supported? 15 A Yes. 16 Q Since your election, have you been available to 17 blacks and whites who have sought to speak to you about 18 | matters of concern to them? 19 A ; Yes. I have tried at all times to make myself 20 available to anybody, black or white. 91 Q Have you ,in fact, have any contacts with blacks including black leaders? A Yes, many times. 2 Q Could you name any particular black leader which whom os you have had numerous contacts? 371 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 154 (LS ) 24 25 about how to handle things like this and I urged him to pleas come to me first and at least let us discuss the situation before it more or less went public. Q Did he agree to that? A Yes. I felt good about the meeting. I thought it was worth while and when I left I felt we had really had a meeting of the minds. However, after a period of quiet it continued as it was before. Q You mentioned Mr. LeFlore sending copies or addressi copies to many persons, including the FBI. Has the FBI investigated that type of complaint? A Yes. Any time a letter or request of this type gets to the FBI, the Department of Justice. it has been investigated and the FBI always conducts a full investigation of whatever the incident that they are asked to investigate is. Q Has the FBI ever reported to you that they found substance in any of these complaints? A There has never been a report to me by the FBI that they found evidence of police brutality in the Mobile Police Department. Q There has been a lot of talk in this case, Mr. Doyle, and I am sure you have heard the testimony about this Diamond -- the so called alleged lynching incident. e ng 372 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 755 24 25 Will you tell us when you learned about it and what happened? Give us a chronology of this. A All right. I believe my dates are accurate, at least the time lapse, I know, is accurate. It was reported to me on Wednesday afternoon by Mr. Clint Brown, who was the attorney -- I don't know who he was representing at the time, but he called me as an attorney to report this to me. Q Is Mr. Brown a partner in Mr. Blacksher's law firm? THE COURT: I will take judicial knowledge of that. A He called me and related..... THE COURT: I don't know whether he is a partner or not. He is in the firm. MR. BLACKSHER: Let the record show he is a partner. THE COURT: Okay. A He related an incident to me concerning a hanging or lynching or he described it in several different ways. It was certainly unusual and it shocked me to even hear it. As a matter of fact, it was hard, at that time, for 37S FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA =) 24 25 me to believe that something like that could happen. Well, at that time, I said this is, of course, -- we agreed it was a matter of urgency and needed immediate attention. So, we set a meeting as early as possible the next day. This was in the afternoon of Wednesday. So, we had a meeting on Thursday. In the meantime, Dr. Gailliard who is, as you know, connected with the N.A.A.C.P. called and expressed his concern. He had heard it and told me, at that time, that he would not be at the meeting, but nevertheless wanted to express his concern. So, we had the meeting. Q Who was present at the meeting? A Well, there was a number of people present, members of the non-partisan voters league was present. The District Attorney's office, the FBI, they had been notified, but, as I recall, were not present at this meeting and the chief of police and myself. I might point out that I was the only Commissioner present at this meeting. The reason for that was, and I realized at the beginning that the information that we had received was sketchy, at best, and had no specifi It was a police matter and was my responsibility and I thought, therefore, that I should hear the complaint in its entirety and make a determination as to how to handle it and then report it to the other Commissioners. ~ (@ ) cS. 374 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 757 ne 24 25 | A We went through the details of the incident in ~ which they described to me that a young black male was All right. What happened at the meeting? arrested and that a mock lynching or hanging took place in the downtown area, generally in the vicinity of Wintzells on Conti Street. They said that the man had been lynched and I made the remark then, "If he had been lynched, most certainly he would be dead.', and that they then -- we referred to that, after that, as an alleged happening. | Needless to say, every one present was shocked, the chief of police and myself, the District Attorney's offiee, the City Attorney, who was also present, and considered this a matter of utmost urgency and we immediately instructed our police people to start an investigation. This was on Thursday. Now, on Friday, about Friday afternoon, the City Attorney, Mr. Fred Collins, called and informed me that the first information that he had gotten, the first statements that he had read that were taken from some of the officers who were named, indicated that, in fact, this had happened and that we were to get into it further. When we Rave an internal investigation in the police department, we take statements from every one involved 375 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 758 24 25 plus their supervisors and on down the line, and it was naturally -- it was going to be a little time consuming to get all of this information together. So, we did and we met again on Monday -- as a matter of fact, we met by way of many phone conversations all during the weekend, but on Monday we met again and, with the exception of one statement from one party we had assembled all of the information. On Tuesday, which is our day to meet, the day that we have our conference meeting, City Commission meeting, it was then, that afternoon, and we got the last bit of infor- mation we needed to bring all of the story as we knew it in focus. At that time, I called the other two Commissioners and, with the chief of police and the City Attorney and othey we met in my office and I detailed the incident, to the best of my knowledge, to them. They were very shocked and upset and, to my knowledg neither one of them had heard of the incident. I believe Mr. Greenough had said he had heard some conversation or rumours, but he had probably discounted it, but, at any rate, this was the first knowledge they had. We met then for quite a long time to determine what should be done. At that point, we took what I considered to be immediate positive and stern action. I 24 25 376 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 759 This was an administrative action of the police department. One man admitted that he was the person involved who was most responsible. He was immediately terminated. Seven others were suspended for fifteen days and then the matter went into the hands of the grand jury who conducted an investigation. The grand jury then indicted five men, including the one we had terminated and exonerated three. Q Exonerated three of the people that you had suspended? A Three of the people we had suspended were exonerated. I might add the suspensions -- we based the suspensions on the fact that these men had failed to report it and this is an administrative action. They were suspended for failing to report an incident of this type. The five men were indicted by the grand jury and they are awaiting trial, at this time. The other three served out their suspensions and were put back on duty and that is -- let's see, I don't know exactly the status of those three other men, at this point, but they are back on duty at the Mobile Police Department. But what all of this led to was what we got into after this and that was a very, very intensive investigation into not only this incident but into a number of others that 371 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA ~ © had been reported in the last, I would say, within the thirty days prior to this and our investigation was conducted personally by the chief of police in co-operation with the City Attorney and several other police officers. It, as you know, resulted in the termination of two additional officers, plus six suspensions of varying degrees handed down to other officers. Those did not connect or those were not related to the Diamond incident. Q Now, just to try to complete the picture, did one or more of the persons suspended, as a result of this subsequent investigation, take their cases to the County personnel board? A Yes, a number of them have appealled. Q Has there been any action as to any of those appeals A I believe one of them had a suspension reduced. Q Didn't the papers indicate, I thought two..... A Possibly two. I haven't kept track as closely as perhaps I should. Q There has been some suggestion here, Mr. Doyle, that the only people in Mobile that had any concern about this Diamond occurrence were members of the black community; is that right? A Absolutely not. There was concern expressed throughj out the community from all sides. There was concern voiced J 24 25 the city as a whole. 3%8 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA by such organizations as the League of Women Voters, to mention some -- they are not necessarily white, but they are a mixed group, the Optimist's Clubs, Mobile United, a number of organizations. Q The Chamber of Commerce? A The Chamber of Commerce. They made a report or had a report on it. The N.A.A.C.P. ministerial groups, both black and white, expressed concern. I had letters of concern expressed by individuals, some black and some white, and it was a general feeling of upsetment and concern throughout the community and it was not necessarily related only to blacks. Q Did you have any correspondence with Mr. Gary Cooper about this matter? A Yes. I corresponded, from time to time, with Representative Cooper on a number of matters. He has easy -- we get along together and we talked about problems about his community and Mobile as a whole and he had ...... THE COURT: Is he a black legislator? A Yes, sir. He had expressed, in a letter expressing concern that he wrote me and outlined a few things that he thought would be of benefit to the police department and to It was along the same lines of various reer etme ss mae 379 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 762 requests that I got from other groups. After having received many of these inquiries, requests, you know, statements of concern and that type of thing, with some help from the -- well, from everybody involved, the chief of police, the City Attorney and the other two Commissioners, I developed a response to this which was a response designed to answer some questions and designed to assure the people that the matter was to be dealt with and that it was not going to be as some people put it, white washed. It was not going to be put under the table and that it was going to be dealt with and the City of Mobile and the Mobile Police Department was going to do everything they could to assure them that something like this would not occur again. MR. ARENDALL: If your Honor please, for the first time this morning I saw this statement that Mr. Doyle prepared in connection with this recent incident. It has not been exhibited to counsel for the other side. When was this prepared? A I had a lot of papers I was going through and I came across it. Q It has not been exchanged. I would like to offer it as a statement. | 8 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 763 24 25 I take it you prepared this to give out to people? A Yes, sir. This statement was prepared to give to people who, for instance, the N.A.A.C.P. met, the ministarial groups met, Gary Cooper, Representative Cooper, received a copy of this and I had a number of copies made and it was given to the media and it was just given out generally around to the people who had an interest. MR. ARENDALL: I will offer it as Exhibit 85. (Defendant's Exhibit 85 received and marked, in evidence.) MR. ARENDALL: Q Mr. Doyle, when you sent the information that you supplied to Mr. Cooper, did he indicate any desire to further pursue the matter? A He indicated in the letter to me -- his letter said, in essence, that it appeared that we had the mechanism underway or proposed to address ourselves to this problem. He called then attention to the need for increased training for police personnel in the area of human relations, but generally seemed satisfied with this statement that was given to him. Q When all of that was developing, did you and any other member of the Commission attend any meetings other than 381 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 25 the ones you have mentioned? A Yes, sir. I might add that I had numerous meetings in my office with various groups, even -- well, at any rate, there was a meeting called by the Mobile Ministerial Alliance, I believe is the name of the group, which is made up of black ministers. They had a meeting at Mount Olive Baptist Church. I can't remember exactly the day, but it was right during the first week of the -- when the incident became public. They asked me to attend and asked Mr. Mims to attend -- asked all of us to attend. Mr. Mims and I went to Mount Olive Church one morning. I had a statement which I read and which explained to these people assembled what our position was, at the time. It was more like sort of a status report. We had just gotten this information in our hands, really, and it was sort of a status report and we went and the media were there. It was covered pretty well. Then subsequent -- no, this must have been on a Monday because subsequent to that there was a meeting held by the:N.A.A.C.P. that night. Q Mr. Doyle, as you reflect back on that occurrence, do you consider that the city and your department and the police department reacted vigorously and effectively in connection with trying to do something about it? 382 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 765 A I think we did. I feel that we did everything that we could possibly do. We did it with no prodding from any particular group. We did it because we were vitally concerned. We, ourselves, were really concerned about the incident. We acted quickly, almost immediately, I would say, considering the fact that I would say we had to gather information. We acted on Tuesday afternoon. We decided what to do. It was made public that same afternoon and the man who was terminated was terminated that day. The men who were suspended, their suspensions began that day. We acted, I think, decisively. I feel that what we did was proper and I believe that the men involved who now are awaiting trial in the Court should be given due process as everyone else and that anything further we have to say or do concerning those men would probably tend to jeopardize the litigation. Q Now, do I understand you to say that you have formed an internal investigation unit and it is to ride herd on reports of such incidents? A Yes. Let me say that -- oh, since Captain Wimberly left the Mobile Police Department and went with the Sheriff's Department and since- Captain Walter Levine died, we have suffered from a shortage of men in that Captain's rank. It has been our intention to establish such a unit as long as ten months ago when we requested that the 333 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 766 1 2 personnel board fill these existing vacancies, at least to 3 give us a certification from which to choose people for 4 these vacancies. 5 At any rate, we recognized the need to have an orderly 6 way in which complaints of this nature were handled and that vi the people who made the complaints would be properly 8 responded to and they would provide to all due haste in 9 resolving it. We determined shortly after -- well, all of this 10 came to a head that rather than wait on the personnel board 11 we would go ahead and form this unit. 12 Q Let me interrupt you a minute. You can't just go 13 hire somebody because you have a need for them, you have to 14 get certification from the Mobile County personnel board? 15 A That is correct. In other words, if we want 16 personnel, we have to go to them and, obviously in a position 17 like this, as extensive as it is, you can't just pick somebody 18 and make them an investigative officer. They have to have 10 the background and the knowledge. 20 The opportunity presented itself when we discovered 9 a former Mobile police officer retired and serving as the 9 head of Faulkner State law enforcement school was interested - in coming back to the Mobile Police Department. We talked > to him and he agreed that he would and he would be the man 25 in charge of the investigative unit. That is Major Bill 384 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 167 Lamy, who served some thirty odd years with the Mobile Police Department. As a matter of fact, he had the job of investigating internal matters and also citizens' complaints before he left the City of Mobile Police Department. Major Lamy came and, as a matter of fact, he came on board after having notified his people of his intentions, he came on board on the first of July. We have not yet finished forming the unit. We believe, at this time, that we will probably have Major Lamy and two other police officers, sworn officers, plus some secretarial help, and already he is presently involved in conducting investigations whenever they come up. Q Do you, on occasion, Mr. Doyle, get complaints from whites as well as from blacks about alleged abuse of power by individual policemen? A Yes. We get complaints from all citizens. The police department, as you can imagine, we have a number of complaints. Q There has been some testimony here about the cross burnings. I believe someone has commented that you did not make any statement about that. What was your attitude about that matter? A Well, let me say that I deplore cross burnings. I deplore murder, rape, robbery. I deplore all of these things Li, FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 121 24 25 them establish it, give them rules to go by, and give them some training and tell them what we thought would best help. Q What is the community relations division? A That is a division of the Mobile Police Department which -- well, community relations, we call it public | relations, it does things such as visit schools and that type of thing, show movies and we show movies to ladies to tell them how to protect themselves and we show movies to kids to tell them about the evils of drugs and residents about how to take care of their houses and we also have a regular program of visiting high schools and interest young people in becoming -- not necessarily police officers, but at least getting into the criminal justice system. We do that on a regular basis at all of the high schools. Q All of this done among blacks and whites and no distinction based on race? A That's right. It makes no difference. Q Mr. Doyle, the police department or certain of its activities insofar as employment and promotion practices are subject to the supervision of this Federal Court in the Allen case, are they not? A That's right. Q And you have an affirmative action planned in connection with that matter? i a b — L S L A A 386 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 172 A That is correct. Q And in your opinion, how is that working? A We were directed by the court to develop a plan by which we could recruit minority people into the police department. As you know, and I will have to relate this to the activities of the Mobile County Personnel Board, because they are really the ones who are responsible with furnishing us with personnel. We were directed, along with the personnel board, to develop a plan by which we could attract minorities into the Mobile Police Department. We certainly needed that and we needed the minority groups in the police department. So, we developed a plan that was subsequently presented to the court and it was examined and found to be acceptable and we were told to continue or go forward with this plan, to implement this plan. I really would like to say, though, that we have not recruited blacks like we would like to recruit them to the Mobile Police Department. We haven't had as many applicants as we should and we certainly would like to have more. Q Do you have any plans to try to improve that? A During the incident, during the time of the incident I was given some references of people to contact. One, in particular, I indirectly contacted to see if he would be y 387 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 713 24 25 amenable to giving us some help and he has had a very good track record in recruiting blacks and it is my intention, at the proper time, to contact him to see if he can help us, not necessarily to change what we are doing, but to do it better or to add some inovated ideas. Q Is the fire department integrated? A Yes. Q How long has that been? A I really don't remember. It has been probably -- I think Mobile was the first fire department to have blacks on it in the State of Alabama. Q No Court suit ever brought on that? A No, never any court action. Q As a matter of fact, has the Mobile Beacon published a letter of commendation in connection with the fire department? A Well, that was in regard -- we were integrated, the Mobile fire department had blacks, but they were -- and this was back some six or seven years ago, they were in what we ma c——ma—. - en — call black companies. There was one company all black and . ct —————— | frm —————— — — there were no blacks in the white companies or vice versa. At some point in time it was my decision, along with that of the fire chief who, at the time, was Chief Douglas Melton, retired now, to as we put it, to break up the black “ 2 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA ~N 9 I departments, black companies, at least, and we did that and we put the black firemen out, all around in the different companies at different places, and the Mobile Beacon wrote a nice article in the paper about how much they appreciated it. Q The black community hadn't filed a law suit or anything of that nature? A No, no there wasn't a law suit. Q There had been some testimony here about the locatio of fire hydrants. I believe particularly about Mr. Randolph in the Plateau community. Just briefly can you tell us whether there is any discrimination by City Hall as to where fire hydrants are located, where there are more in black communities than white or anything of that sort? A No, sir. That is determined by the underwriters. What we do, the city of Mobile's water and sewer department, installs the fire hydrants and the City of Mobile pays for it. We go according to -- if the insurance people say one is needed here we put one there. In a new subdivision they will lay out exactly where fire hydrants will go. Q Some indication by Mr. Randolph of lack of response at City Hall to any matter that he brought to their attention. 329 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA is located. Q In your opinion, is the question of where a traffic light should be and should not be determined by racial factors? A It is absolutely not. Q Briefly, outline to us, Commissioner Doyle -- and if the Court please, I expect to go into this further with Captain Winstanly who is directly in charge of it, but I would like just a brief outline as to how the police department determines the number of policemen to be patrolling various areas and so on. There has been some complaint by, I believe, a number of these witnesses that they don't get enough police protection in that particular area. A Yes, sir. Well, the city is divided, at present, the city is divided into three major areas. This is as it relates to the police department. One area is covered by what is known as the ten squad, one by the twenty squad and one by the thirty squad. The areas are divided into beats. It was about ten years ago that we had twelve beats. The city was divided into twelve -- the three areas were divided into twelve beats -- not twelve beats each, twelve beats overall. Through the years we have changed that. ta — mre — RES SSS TE 390 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 778 2 (ep ) | ! T | A That's right, and that is based on crime statistics. We have changed from twelve to eighteen in order to give better concentration of coverage and then we went from eighteen to twenty-four and, at present, there are twenty-eight areas. When you say how do we determine and area, it is determined by -- naturally geography has something to do with it or maybe an interstate highway or something of that type might determine one boundary but we tried to divide it where the maximum per capita coverage will be available to all of the citizens. Every beat, as we call it, all of the twenty-eight beats, has a car, blue and white, assigned to it. We now have weekly crime stats which are given to us as to burglaries and robberies. telling us what beats are most heavily hit, whether it is the afternoon, whether it is the morning, whether it is nighttime and based on these statistics we shift people, always leaving one blue and white in each area, but we shift personnel to more or less beef up an area if there has been a particular outbreak of say house burglaries or automobile burglaries or what have you. Q I take it then that you try to determine, as best you can, what particular areas need additional protection at any given time? | ] tl 291 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Q I will ask you whether, in your opinion, the efforts of the police department to provide police protection for the various areas of the city are determined in any respect by racial considerations? A No. Q Mr. Doyle, do youconsider that since your election as City Commissioner and your re-election as such, that you have fairly represented all citizens of this area? A 1. do. Q Has that been your purpose and intent? A Yes. MR. ARENDALL: No further questions. CROSS EXAMINATION BY MR. BLACKSHER: Q Mr. Doyle, you feel like you have always fairly represented the particular rised interest of the black community? A I. do. Q What are some of those particular rised interests? A Beg your pardon? Q What are some of the particular rised interests of the black community that you have fairly represented? 779 ~1 392 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA I will let you make your record. Go ahead. MR. BLACKSHER: Mr. LeFlore made these recommendations about a citizen's review board as a way to deal with police brutality . complaints? A I think so. Q You disagreed with that? A Yes. I think I disagreed with the review board because it is demoralizing to any police force. Q Was there any other groups besides Mr. LeFlore and the NAACP who also asked for a review board? A I presume they did. They haven't recently asked for one. They haven't asked for a review board as related to the Diamond incident. Q What other groups have asked for a review board? A Well, they don't necessarily call them review boards; They call them by a number of names, citizen's committees, concerned citizen's groups or what have you. But they all probably have the connotation of being a review board. . There was a request by -- let's see, I think representative Cooper requested to have a committee, although he said not a review board, but a committee. One of the ministerial groups wanted a committee which, in my judgement, could have become a police review board. 159 393 I FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA SLE Ne DA Ln — Sn Aue dr : SR SESE TAL H Bo 25 | am sure the press wouldn't misquote me. | MR. BLACKSHER: | We offer this in evidence. | (Plaintiff's Exhibit 102 received and | | marked, in evidence.) | MR. BLACKSHER: | We have marked in pencil that statement and I want you to see if it refreshes your memory and whether you think i has is accurate. A I am sure that is accurate. He was, at that time, in regard to the City's attempt to get some law enforcement funds, some funds from the Federal government to promote good law enforcement, and Mr. LeFlore was apparently calling on thg law enforcement assistance administration to withhold the | funds until we did whatever it was he was seeking for us to have done and that is when I said I was sick and tired. Q Let's talk a minute about the Diamond incident, Mr. Doyle. You said that the meeting attended by Mr. Diamond by the non-partisan voters league, the D.A. was there, the chief of police and you were the only commissioner. Are you sure that Mr. Mims was not also there? A I don't believe he was there. I believe I was the only commissioner there. It was a room full of people, you understand, and there were a number of members of the non- 1-492 AL 4 | | HM AI EE | e e 394 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 1.793 oo ) partisan voters league there, I know, and a number of secomeys 3 there, too. 4 Q You recall me being there, for instance? 5 A I don't recall your being there or not. 6 Q Mr. Brown was there? | 7 A Yes. 8 Q Reverand Hope from the non-partisan voters league? | 9 | A Yes. I believe so. 10 Q Do you recall what Mr. Brown and that delegation | | 11 | asked you to do on that Thursday that the meeting was held | | 12 | the day after Mr. Brown had telephoned you on the phone and 13 reported this incident? 14 i A Well, specifically, I don't know that I recall any | 15 | demand that they made or any requests that they made. The 16 | meeting, as I recall, was -- of dodrse it was an emotionally 17 | charged meeting, as you can imagine, and we, as a city | 18 | commission and me and the police and other people, the 19 ' District Attorney and others involved with the police 20 department, were very upset about it. It was obviously, 21 to us, the thing to do was , number one, to determine what 20 | happened and that is what we endeavored to do. | 29 Ti Now, it would not be proper for me; as police | | 924 I commissioner, to take any precipitous action based on what | 05 I had heard at that meeting. You understand this was the | 5 4 Lm i pi a hc pe A = Cel iat —— 3985 | FEDERAL STENOGRAPHIC REPORTERS I P.O. BOX 1971 | MOBILE, ALABAMA \ 794 first time that I had heard it except the conversation on the phone with Mr. Brown. So, it wouldn't have been proper for me to take any precipitous action, at that time, until 5 | I endeavored to find out what the facts in the case were, 6 || and that is what we did. 7 #AQ In fact, the precipitous action that that group 8 | asked you to take was to suspend officer Patrick with or 9 | without pay. In any event, to get him out of the line of 10 || duty, because they thought he was dangerous; is that right? 11 A That's right. 12 THE COURT: 13 | Officer who? Is he the one that claimed to have 14 | made some later statement about he put the rope around the 15 man's neck? 16 A Patrick was the officer who had admitted that he 17 had done what was alleged to have been done. is || THE COURT: 19 All Tight, 20 A Here again, we didn't know anything for a fact. This 91 was what people were saying, their telling us. It was 237] shocking to us to hear it. ” | MR. BLACKSHER: 94 | You didn't have Officer Patrick under investigation, at that time? 396 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 795 2 | A Not in regard to this instant, no. 3 Q Didn't you have him under investigation for some 4 | other incident? 5 | A I don't know. I am not familiar with that. Officer 6 | Patrick, they say, you suspend Officer Patrick immediately. 7 I Well, as a matter of fact, we did take Officer Patrick out 8 | of the area in which he was in, out of the division he was 9 | in, to get him away from what might have been a situation to 10 jeopardize him or someone else, but it certainly wouldn't 11 have been proper for me to say, ''Well, I believe what 12 | everybody is telling me. Therefore, I am going to suspend 13 Officer Patrick immediately.’ That wouldn't have been fair | 14 | to him or anyone. The results were that he was, in fact, 15 terminated. 16 THE COURT: 17 When? 18 A On the following Tuesday afternqon. 19 MR. BLACKSHER: Would the clerk show the witness Plaintiff's Exhibit 20 91 65? 99 I am showing you, in a group of newspaper clippings, 2s | Mr. Doyle, marked as Plaintiff's Exhibit 65, the front page of the Mobile Register, Sunday morning, March 28, 1976. | | The headline is "CB Theft Suspect Shot By Patrolman’? | ’ 397 | FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 | MOBILE, ALABAMA 796 | ECE nde | A Right. 3 49 Would you look that article over, especially the 4 | parts that are underlined, and see if it refreshes your memory 5 ||about Officer Patrick? 6 A Yes. He is the one that shot the CB thief.. | : q This is the man who had two bullet wounds in each of | 8 his thighs, a single wound in his right ankle and superficial | 9 bullet wounds in each of his wrists? | 10 | a That is what is reported here in this paper. | 11 Q And that was approximately -- well, just a matter of 12 || two or three days before this alleged lynching incident | 13 | occurred, right? | 14 A Let's see, this was Sunday morning. I guess that | 15 a8 the Saturday night. It apparently was about a week | 16 Snead or a week before. 17 Q A week before? 18 A Something like that. It was pretty close, right. 19 Q And officer Patrick was not under investigation for on that shooting? 9 A Any time a police officer discharges his weapon he " is under an automatic investigation. 2 Q Isn't it a fact that the delegation that attended the vi meeting on Thursday pointed out this incident as being related i" and another reason for suspending Officer Patrick immediately, | 1 [] | i | | | even if suspending him with pay was necessary? Hl ( 1 | 398 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA A I don't recall that, but I am sure they brought that up. 1 Q You said that on Friday, the day after the meeting I [ [| | [| | | Hi | I | that we were talking about...... THE COURT: Let me get some times straight. With reference to when attorney Brown called you on Thursday, when is the alleged mock lynching to have said to have occurred? A As I recall it was to have occurred ten days prior | to that, I believe. I am not positive of that time. THE COURT: Isn't there something that we can agree on? Aren't there enough facts that we can establish that time by agreement? MR. BLACKSHER: Yes, sir. MR. ARENDALL: If you have a copy of the indictment, wouldn't it state what date it was? MR. BLACKSHER: The grand jury report, which is the front part of the Exhibit 65, says that the event erupted on the night | of Mareh 28, 1976, which would be the same Saturday night. 797 3959 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 798 22 23 24 Do Ar Q n | | ' THE COURT: With reference to the shooting incident. All right. Well, now, let's get dates we are talking about here. What | was the date of the Thursday that attorney Brown called or | mentioned it? | MR. BLACKSHER: | I i I believe it was Wednesday, your Honor. [IA That's right. Wednesday afternoon, because we met on Thursday. THE COURT: All right. What was that day? MR. BLACKSHER: The 31st of March, is that a real date? THE COURT: All right. That would have been three days after the alleged incident. What is the date of the story there in the newspaper? MR. BLACKSHER: March 28th, is the date of the paper, which means that the event occurred on March 27th. THE COURT: All right. Go ahead. MR. ARENDALL: Judge, I must say I don't think you are wrong, but 400 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 199 9 I am looking at something here that is headed news release 3 | dated April 15, '76 and it says here that Mayor Doyle received a formal detailed complaint from Mr. Diamond's - |lattorney on Friday morning April 9th. I don't know whether ©] | that is another ....... . A That probably is right, except that it wasn't 3 Friday morning. Well, we might have received something in 9 Sota from him, then, but the meeting we had was on 10 Thursday. 11 MR. BLACKSHER : 12 It says this, if I may read and just for the T jBuznase of trying to get this straight. 1 | "Police department and City attorney immediately 0 started an investigation at 5:00 P.M. That same day the be District Attorney's office and the FBI were informed and 3 requested to conduct an investigation. On the following 48 Tuesday, April 13, 1976, nine matters were called to the 1 attention of the board of commissioners of the City of Mobile'l, Ba and, at that time, we thought we had sufficient facts and 5 so forth and the talk goes on. This is part of out Exhibit os 173. Whether it is accurate, I don't say, but it is dated 5 April 15th and it would hardly appear to me that there would ” Ibe a news release on A pril 15th that we would be very off fon these dates. | | P.O. BOX 1971 9 401 { FEDERAL STENOGRAPHIC REPORTERS [1 | MOBILE, ALABAMA 800 It would appear to me that the Tuesday on which | | Pataick was fired must have been April 13th and then....... | THE COURT: 5 | Well, certainly we would have some record of when 6 he was terminated, don't we? Can we establish that date and | | get at it backwards from that date? | 2 11a The complaint was made by phone Wednesday and the 9 |{detalils of it was Thursday and ...... 10 THE COURT: 11 All right. Let's go back at it from that date. Do 12 some of your records indicate when he was terminated? 13 |IMR. ARENDALL: I Te I am looking, Judge, to see. There ought to be 5 some newspaper articles somewhere around here that would show. 16 || THE COURT: Why don't you examine the City records at Noon time 18 and report back to us. Let's go on to something else. 9 ||MR. BLACKSHER: Mr. Doyle, you testified, didn't you, that following 20 91 the revelation of the Diamond incident, you initiated or 99 ordered a very intensive investigation of this and other oq || Matters that were before you, at that time, other complaints? 94 A Right. Q Now, when you say a very intensive investigation, how | | No i n A Well, for one thing, it involved the administration | burglaries, primarily auto burglaries, which involved primaril 402 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA much more intensive was it than investigations you have previously conducted in response to these complaints? of polygraph examinations which the others hadn't. It also involved more interrogation of people in the community and I guess you would say when we asked an officer for a state- ment and he writes a statement, that is one thing, but when we actually question him at length then we went into it a little deeper trying to get at the root of all of the problems, trying to get at the root of all of the problems as regards to the number of complaints that we had. Q You mentioned earlier that you had three major areas for patrols, the tenth squad, twenty squad, thirty squad -- what is the six hundred squad that Mr. Patrick was in? A The six hundred squad, you know, I mentioned to that whenever we found or whenever the statistics indicated that we had a particular problem in a particular area we more or less beefed that area up. The six hundred squad was formed in order to address itself to the increasing problem of CB radios. The squad was formed and they were not put on -- I can't get too technical about how they were deployed, but they were not assigned during a regular tour of duty. Ly 801 403 | FEDERAL STENOGRAPHIC REPORTERS I P.O. BOX 1971 MOBILE, ALABAMA —t. 502 2 We would take from statistics a framework of time. 3 | If we determined that the critical hours, as far as automobile burglaries were concerned, were from ten o'clock in the 5 || morning until approximately four o'clock in the afternoon, then 6 that is the time that the squad would be on duty. It was 7 || formed particularly to address itself to the burglary problem 3 | in Mobile. It was in addition to the others. eo 10 When was it formed, Mr. Doyle? voi HA I don't know exactly. It has been back some time 11 ago 12 Q Nineteen sixty-nine? 13 A No, no. More recently than that. Like I said, I 14 don't know exactly when it was formed, but I would say probably 15 within six months, maybe, something like that, prior to this. 16 Q What geographical area of the city did it work in? 17 A It moved around, depending on these statistical 18 data that we got every week. If the statistics show that the 19 area needed attention and was, say, the Loop area, that is a0 where they would be. If it-shifted to Toulminville that is o where it would be, or downtown, or whatever. 25 The deployment was dictated as to what statistics 5 showed the need was. Q Did the six hundred squad have any special orders concerning what kind of tactics or measures they could take? 404 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 803 no A No. The six hundred squad was given the mission of reducing burglaries. 4 IQ They weren't given any particular license, for 5 | example, with the use of weapons? 6 a Absolutely not. Be Lic Do you know whether, after you investigation, 8 | whether, in fact, some of the police supervisors had given | 9 | this license to these officers? | 10 4=A Our investigation revealed many times about instruc- 11 | tions that had been given these men. I don't know that it 12 would be proper for me to go into detail about that since | 13 all of these men have appealled this to the personnel board | | 14 under the grievance procedure and two of them have appealled | 15 | their terminations, and at the risk of jeopardizing either | 16 pro or con, I don't think it would be proper for me to 17 comment on that. 18 Q Well, your testimony is that you feel like you have 19 acted immediately and decisively in this matter? 20 A Absolutely as quickly as we possibly could. 21 Q You did say the City Attorney, Mr. Collins, confirmed, 99 [bassd on his interview of police officers, this alleged 23 | lynching had, in fact, taken place some four or five days 24 | before you acted to suspend Mr. Patrick? A Mr. Collins came to me and we were all involved in | { to i n = i 0 | 3 405 | FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 MOBILE, ALABAMA 804 2 | this, by this time, as you can imagine. Mr. Collins came and 3 | said to me on Friday that the information that he had, at 4 | that time, which now the information I am talking about would 5 | be statements taken from various officers, but he said the 6 || information that he had gotten so far indicated to him that 1 | ir had, in fact, occurred and then our reaction to that was 8 that well we have to get all of the information, which meant 9 we had to take statements from every officer involved and 10 their supervisors, too. 11 Q Wasn't it true that the various delegations from the 12 || black community -- that the point they were making was why 13 || can't you suspend people without even penalties attached to 14 it first and then conduct the investigation later? 5 A I think that we acted properly in the way we handled 16 it. 17 | Q You also said, although you deplored cross burnings, 18 you did not feel any obligation to make a public statement 19 about them any more than you feel about burglaries or rape? 20 A That is correct. 91 Q Were you aware or weren't you aware that these 99 cross burnings were creating particular anxiety in a large 93 community here in Mobile? 9 A I might add that the majority of the cross burnings were in Mississippi or Baldwin County, but certainly an 406 I FEDERAL STENOGRAPHIC REPORTERS I P.O. BOX 1971 i MOBILE, ALABAMA Rae co | : —— ins B0D 1 | z 2 | outbreak of violence of any kind creates concern. 3 | This kidnapping of the 26 children and burying them 4 | under ground creates concern. I was equally concerned about 5 | the cross burnings as I was about everything else. | 6 ' Q For the record, now, the twenty-six children kidnapped 7 EAE in California, right? | 8 A Well, sure. | 9 Kk ‘Would the clerk show the witness Plaintiff's Exhibit io i622 11 Now, this is a newspaper article from the Mobile 12 Press Register dated Friday morning, June 25, 1976. It says 13 that, and I am reading from the third paragraph, Mr. Doyle, I 14 | "State Troopers reported at least twenty-five crosses set 15 afire in the two southern most Alabama counties! meaning 16 Baldwin and Mobile, correct? 17 A I presume that is corfect’ Southern most, yes. 18 Q "Meanwhile at least seven crosses were reported 19 in Escambia County, Florida in front of black churches', and 20 then the top of the next column, ''Mobile Police said one 91 cross was burned off of Avenue A on Cottage Hill Road in front 33 of a black man's house'; were you aware of that? 53 | A I was given a report on where they were burned. I | » don't recall whether it was in front of a black man's house | Or not. | 407 | | FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA | LL EN SEE a EEE SOO ti | 2 | Q Mr. O'Connor, would you show the witness Plaintiff's [| 3 | Exhibit 101? 4.4 Do you ever read the Mobile Beacon, Mr. Doyle? 5 A Not very often. 6 || Q Well, what we have here is Plaintiff's Exhibit 101, 7 | a xerox copy of the front, and it looks like the second page 8 | of the Mobile Beacon, dated July 3, 1976. The headline is, "Cross Burnings Threatening Letters Raise Concern in 10 || Black Community', and on page two of this article, in the 11 third column, it says, ''Mobile Police Report Three Burnings 192 and State Troopers Estimated As Many As Twenty=Five Crosses 13 Were Burned in Mobile and Baldwin Counties'. Ww i So, even if all -- well, the balance or twenty-two 15 | of the crosses were burned in Baldwin County, at least three 16 were burned in Mobile and perhaps more, but you said you 17 weren't aware or were you aware that these cross burnings were 18 creating some anxieties in the black community? 19 A I am aware that they created anxiety as other 20 matters create anxiety. 91 Q Well, isn't it a fact, Mr. Doyle, that because of 99 the particular constituency that elected you and keeps you - 93 im office that that would have been difficult for you to politically come out strongly about statements about cross 3] A n 408 FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 MOBILE, ALABAMA a ee 3807 go } | burnings in Mobile? (l 3 WA I don't think it would make a bit of difference. 4 My constituency, they abhor cross burnings as much as I do. 5 I don't think that if I said I abhorred it publicly on the | 6 front page, it wouldn't make any difference. They abhor it, | 7 | too. 8 0 You didn't think it was important enough to do 9 thar? 10 A That is correct. 11 Q You did meet, however, in the wake of the Diamond 12 || incident with a Klu Klux Klan, correct? 13 A They requested a meeting in my office, which was 14 “Hf held: 15 Q And that was reported in the paper? | 16 A I didn't report it. It was reported because the 17 media were there. is IQ Concerning the Mobile fire department, Mr. Doyle, 10 what percentage of the employees of the Mobile fire department 00 || are black? 2] A The fire department has twenty-seven black people 23 and four hundred and nine white. 25 Iq Have you done any recruiting for black firemen like gy YOU have for black police officers? A We don't have a specific program as we do for the no A n 409 | FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 | MOBILE, ALABAMA || 812 number two and it will establish a rating for the fire department itself. 4 | Q Do you know when the last final report was written, 5 | Mr. Doyle? 6 | A I am not sure. I think it was 1964. I am not sure. 78420 I was going to ask you again, is it your testimony 8 || that you don't see that the black citizens or the black 9 | community in Mobile have any particular rised interests 10 different from those of other groups? 11 A If you would, Mr. Blacksher, tell me just exactly 12 what you mean by particular rised interests. 3 1 Q Well, let me ask you the question this way, are 14 you in favor of the City of Mobile enacting a fair employment 15 ordinance? 16 A We are always -- I mean, through the personnel board, 17 equal opportunity employors. 18 Q I am talking about a city ordinance prohibiting 19 discrimination by private or public employors in the city of 20 Mobile? 921 A If we were actually doing it already, what is the 99 need of an ordinance? 2 “10 So you see no need for such an ordinance? 24 A Not as long as we attend to treating an employee | 05 fairly. | 410 i FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 | MOBILE, ALABAMA I 813 2-40 Are you in favor of the City of Mobile enacting a 3 || city ordinance making it unlawful for persons to buy residences 4 | on the basis of race? | 3 1A As long as the end is being accomplished, whether or 6 I not you have an ordinance would seem to be superfluous. If J we are, in fact, allowing people to do these things. I don't 8 | see any point in having..... | 9 Q You say we are allowing? | 10 | A I did not say that. I say as long as people are un being allowed. 12 Q Are you aware of whether or not people are being 13 | allowed wherever they want to buy? 14 | a I have heard absolutely no complaints. 15 a Do you know whether or not there have been complaints 16 | filed in Federal Court under the federal laws? 17 | A I don't know. 18 | MR. BLACKSHER: 19 | The Court can take judicial knowledge of its own 20 | records, but I know of and have handled at least eight cases. 91 1 think the Court can also take judicial notice that the 79 | Federal Fair Employment law contains a provision through 23 | which Congress has expressed a preference for local govern- 3) | ments to enact their own Fair Employment laws to which the | | Federal Court must defer, if there are same. | | 411 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 814 | MR. BLACKSHER: ~ the burning of crosses in the City limits of Mobile? A I think it is probably illegal to do that on public | right-of-way all ready. Now, as to whether or not -- to say | it is illegal to burn a cross on private property, if someone an ordinance of someone burning a cross on someone's property A Let me say this, I am certainly in favor of people being hired in an equal opportunity way and being allowed to live where they please. Are you in favor of enacting an ordinance prohibitinj decided this, that they wanted to burn a cross or anything on their front yard and it didn't violate the environmental rules or anything, then I don't know that we should properly deny him the constitutional rights to burn whatever he pleases in his front yard. Q What about this cross that was burned on Cottage HiX1:Road in front of ...%.. THE COURT: I think what he is asking you is with reference to who is not there, is that what you are getting at? A Yes. I am certainly in favor of prohibiting, by law, such as a cross burning that would be apt to upset the commun i ty in any way. I think if we could prohibit it by law properly without violating someone's constitution uQ | | | | | 412 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 00 jr In 2 | rights, I think it should be done, yes. 3 | MR. BLACKSHER: 4] When you were campaigning in 1969 -- I realize 5 you were unopposed in '73. Therefore, I presume you didn't 6 | do much campaigning in '69 when you were campaigning for this 7 office. 8 In your campaign, did you advocate fair employment I 9 | opportunitites? 10 | A I think probably I made the same general remarks that 11 I was in favor of everyone being able to work and earn equal 12 with others. 13 Q Mr. Doyle, do you disagree with all of the white 14 and black politicians who have testified in this trial so 15 far that a black candidate running at large in the City of 16 Mobile..... 17 THE COURT: 18 Are you going to be with him much longer? 19 MR. BLACKSHER: 20 No, sir. o; || THE COURT: 90 | The reason I say, it is twelve and we might as well 93 || let him come back after lunch. If we can finish up in five | minutes or so, go ahead. Mr. Arendall, do you have rebuttal? | MR. ARENDALL: | | | 25 | | | 413 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 816 Just for a couple of questions. THE COURT: Are you planning on being here this afternoon? A I would just as soon go and come back to finish up. THE COURT: All right. MR. BLACKSHER: I was going to ask you if you agreed with the other people that have testified that a black candidate would have little or no chance winning an election running at large in the City of Mobile? A Well, I have always said the politics is the art of the possible and if you are given certain ingredients, I believe anyone can win an election. If you have a willing candidate and if you have enough money and if you have a program that you can sell to the people in a proper way I believe anyone can be elected to office. I will add, however, that I think both blacks and women have less chance. Q All other things being equal, Mr. Doyle, would you personally be in favor of single member districts out of which the Commissioners or councilmen of the City of Mobile would be elected? A I believe that the present form of government has 414 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA in I hs an : it § . THE COURT: MR. ARENDALL: (RECESS) All right. You may proceed. If your Honor please, during the noon recess, Mr. Doyle checked his secretary's calendar and it appears | that the call from Mr. Clint Brown came in on April 8th, a Thursday, sometime between eleven-thirty in the morning and three-thirty-five in the afternoon, the exact time was not noted, because he accepted the call without his secretary making some notation that he had called at a certain time and it appears that the meeting with some of those who were concerned was held the next day, that is April 9th. So that it could properly be referred to as a Friday meeting rather than a Thursday meeting. My understanding is that Mr. Blacksher's own notes, to the extent that he has them, indicate that that is correct. i THE COURT: Fine. Thank you. Are you through with the witness MR. ARENDALL: Yes, sir. THE COURT: Whom will you have next, please? | 821 ~~ 415 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA | | | | | | © nN o H 2 Q Now, Mr. Mims, in your 1965 race for the City Commission were there seven candidates including the then incumbent, Mr. Charles Trimmier? 5. HA Mr. Trimmier was a candidate and I am sure that 6 || number is correct. 7 Q I will ask you whether or not, in that election you 8 had a runoff between yourself and Henry Luscher, Jr., whose 9 father had previously been a member of the Commission? 10 A This is correct. 11 Q In 1969, were you again opposed by Mr. Henry Luscher) 12 Jr., as well as Charles F. Cooper and were you re-elected 13 without a runoff? 14 A This is correct. 15 Q In 1973 were there six candidates, including 16 Alphonso Smith and Lula Albert, who were black? 7 A This is correct. 18 Q Did you win in that race without a runoff? 19 A I did. 20 Q Mr. Mims, in that race did you seek black support? | N A I have always sought black support. | 22 Q Did you have any blacks active in your political 23 campaign? 24 A Yes, I did. 25 Q Could you identify any blacks who gave you particu- ate ie RARE MSI | | { 416 FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 | MOBILE, ALABAMA 825 larly strong support? 3 lald Well, there was Reverand Tunstall, and Mr. Evans 4 and a number of other blacks who played a good part in my 3 | campaign for re-election. & Iq Did you visit the non-partisan voters league? 7 J A Not in the '73 campaign. When I ran in 1965 I 8 was screened by the non-partisan voters league. | 9 | Q Did yougo to the polls in 1969 and do you remember 10 any of the activities of Mr. Beasley, at that time? 11 | A Yes, I do. 12 Q Tell us about those. | A Well, it has been my policy, every since I have 14 been involved in politics, on election date, to make as 15 | many polls as possible and, on that particular election day 16 | in 1969, Mr. Beasley was, if my memory serves me correctly, 17 | standing at the ward ten balloting place on Davis Avenue and 18 | it was my understanding that he was actually discouraging 19 black people from coming to the polls and participating in 2 the election process. 91 Q Mr. Mims, before we go into details with respect 99 | to your responsibility as public service commissioner, I would 9s like for you to outline for the Court the basic set up for 24 the supplying of various governmental services to Mobilians? 5 | First, Mobile Water and Sewer Board, what is that? 417 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA | A Well, the Mobile Water and Sewer Board is an | entity separate from the City Commission. The members of - which are appointed to that board by the City Commission and this board has the responsibility of providing water and sewer service to the citizens of the City of Mobile. Is it established by State law? This is correct. Is Mr. Milton Jones a black, a member of that board? He is. Does that board handle City drainage matters? Not storm drainage matters. That is a function of the City government, itself? > Lo O o > OO > oO This is correct and, under the specific duties of the public works commission. Q All right. Mobile County Health Department. Would | you give us the relationship of that unit to the City government? A Well, the Mobile County Board of Health has members who serve at the pleasure of the County Commission, if I am not mistaken. The City Commissioners do not appoint to this board. However, by statute, by State law, each municipality within the County, as well as the County, has to contribute | | to the Board of Health and in the case of the City of Mobile AP RA Hl 418 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA we contribute far more than the amount that is prescribed by law. I think we support the Board of Health at the tune of two dollars and forty cents per capita when the State law actually requires sixty cents, if I am not mistaken. | Q ~ Mobile Housing Board? A The Mobile Housing Board is also a separate entity an its function is to provide public housing for the City of | Mobile and the members of that board are appointed by the Mobile City Commission or more specifically the mayor, who is serving, at that time. | Q Is that the agency that has been charged of public housing here and works with the Federal agencies in that regard? A This is correct. They work for closely with HUD and the other Federal agencies and, in the past, had been designated as our urban renewal agency in the City. 1 Q Was Mr. John LeFlore a member of the board? A He was for a number of years. Q Is there currently, on the board, Mr. John F. Grey, who is black? A He is black, yes. LQ And he 1s on that board? A This is correct. Q Mobile County Personnel Board? 827 419 FEDERAL STENOGRAPHIC REPORTERS | | P.O. BOX 1971 MOBILE, ALABAMA 1828 | 2 | A Well, the Mobile County Personnel Board is certainly 3 separate from the City Commission. In fact, in many cases 4 || has more power, in my opinion, than the City Commission, 5 | because it tells us what to do. 6 I It is a three member board and these board members 7 | are selected by a supervisory committee that is made up of 8 one representative from each of the participating governmental 9g || entities. 10 Q That would be the City of Mobile has only one 11 member on the supervisory committee? 192 A This is correct. And I think there are seventeen 13 members of that committee, and it has been a contingen of 14 the City government for a long time that there is a terrible 15 1inadequaty that exists here inasmuch as we are called on to 16 pay fifty-five percent of the operating costs of this board, 17 || yet we only have one vote out of seventeen in selecting the 13 | board members and, of course, the board members then select 19 | a director and they operate the program and screen all 20 applicants for job opportunitites in the City as well as in 91 all of these other governmental agencies. 22 || Q When the City considers that it wants someone to -- ] | | 03 | or wants to fill a position on the City payroll, what procedure | is followed? A Well, if we want a secretary, for instance, a position ee | [ | | | 25 | | | | i 420 FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 MOBILE, ALABAMA 1 > 2 | is opened for secretary or a position has been vacated, and 3 | we need to fill that vacancy, we notify the Personnel Board 4 that we need to fill this vacancy. They, in turn, furnish us 5 | with a certified list of qualified people. 6 | In other words, when we get the list from the 2 | Personnel Board we have the assurance that the names on that 8 | list have been examined and screened and they are qualified 9 | to do whatever it is that we need to have done and, in this 10 | case, we are talkimg about a secretary. So, we have five 11 | names on the list, say, and then we have the privilege of | 12 | selecting from the top three and every vacancy within the 13 | City, with the exception of the City Attorney and one or 14 two appointed positions, every one of them are handled just 15 | this way. 16 | Q I understand they give you a list of five names, 17 | but you may only select from the top three? 18 | A Well, I just used the number five, there could be ten 19 on the list, we still can select only from the top three. 20 | Q Out of curiosity, why do they give you more names than 51 three, then? 5s | A Well, these names move on up the list. Say there are a | ten names on the list for stenographic secretary, within the by system and the City of Mobile this week needs a secretary and 3 we take the one right off the top. Well, then, the number | 421 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Authority that handles the public transportation for the City two person moves up to number one and say maybe the County might need a secretary and they can select from that top three. Q I see. Are there any other agencies that are actually not part of the City of Mobile's government that perform important function in providing public services that I have not asked you about? A Well, we have recently set up the Mobile Transit and then we have an interim airport authority that assists the airport commissioners and the City Commissioners in the operation of the airport. Q Both of those established under State law? A Well, the transit authority is under State law and it is my understanding and we hope some day to have a perma- nent airport authority, however, at this time, it is kind of an acting authority, for lack of a better word.. We have used interim airport authorities. Q Does the City subsidize bus service in Mobile? A We do to the tune of three hundred thousand dollars a year. Q Would you give us any estimate as to the percentage of blacks and whites respectively who ride the buses? A Well, I am sure I am correct in saying that the large | = | Plaintiffs have introduced as their Exhibit 64 a list 422 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 831 percentage of riders would be blacks and it is my under- standing that only four percent of the people of Mobile actually use the service in any one given day. Q That is both black and white? A Right. Q Would it be fair to say that an overwhelming number of the actual riders are black? A This is correct. Q Now, let's go to City committees, Mr. Mims. I don't know whether you were present in Court or not, but the supplied by us at their request of all the boards and committees and so on that are or have been around Mobile in recent years and I am just going to have to go down them one by one. The board of adjustment, is that an agency required b State law? A Yes, and it is one of the more active boards. Q What does it do? A It rules on variances. For instance, if the person wants to add on to his house and build a garage and it is goii to go over near the line closer than the six foot that is allowed, then that person would come befere this board of adjustment and get a variance. < ro (1 423 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA REE, —— En Se are SEE ————ee rr - mit tte se —— gE erasers — Q Doesn't he first go to the City planning commission and then to the board of adjustment or does he? A No. I don't think so. The planning commission is another planning function that I imagine we will get into later. Q All right. Of the seven members of that board, is one of them black? A Yes, he is. THE COURT: Just one minute. PhRase state for me the function of that board. | A Your Honor, the function of that board is to grant variances. THE COURT: Zoning laws? A Well, we have a zoning commission, too, that acts on property of two acre plots and larger, but say you have a plot that was smaller than two acres and you wanted to get a special exception to put a special business or expand your house beyond the normal limits or something like this, you would come before this board of adjustment and ask for an exception and they hear all of these cases and either grant or deny your request. THE COURT: 424 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 | MOBILE, ALABAMA I 833 iE | | Mr. Blacksher and Mr. Arendall, for quick reference 3 for study. in the future, if there is no objection, I am going 4 | to make some pencil notations on the Exhibit, for instance, 5 | like board of adjustments set up by State law. Any objection | | | 6 | to me doing that? | 7 | MR. ARENDALL: 8 i No, sir. 9 || MR. BLACKSHER: 10 | No, sir. 11 || THE COURT: 12 Let the record show that any notes on here will be 13 | made by me in pencil and if the attorneys have any objections I 14 | when it is over with, I will hear from you. Go ahead. MR. ARENDALL: 16 Mr. Mims, the board of adjustment would also handle, 17 | would it not, what are called applications for exceptions 18 | from zoning ordinances as, for example, when jacinto port 19 | wanted to put the fragnation plant out there on the jacinto 20 | port property. They had to go to the board of adiustuent 21 | to get a so called exception from the zoning ordinance, did 29 | they not? 93 | A I am sure this is correct. 24 | Q The next on the list if the air conditioning board. ” Is that appointed by the City, iteelf? | | | 425 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 25 A Yes. But there are some requirements that -- I don't have the ordinance in front of me. There are some specific regulations as to who goes on there. In other words, it has to be someone who is familiar with the air conditioning or refrigeration -- in other words, you don't pick someone who doesn't know anything about that. Q What does this board do? A Well, they screen the applicants for refrigeration an air conditioning licences, as I understand it. Q Well, let me read something to you and ask you if thi sounds approximately correct. The qualifications for membership on this would be one, air conditioning refrigeration mechanic who is mominated by the Mobile Chapter of Refrigeration Service Engineers Society. One person whose principal business is registered air conditioning and heating firm nominated by the Mobile | Mechanical Contractors Association. One who is nominated by | Mobile Air Conditioning Contractors Association. Ome independent practicing mechanical engineer registered in the State of Alabama and one representative of the public. Does that sound about right? | A It sounds like it is. | Q Now, the next one is the architectural ..... THE COURT: 426 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 835 J Wait a minute. I didn't get the function of that 3 board. 1 A That board, as I understand it, your Honor, screens 5 | applicants for air conditioning licenses and what not, anything 6 | to do with air conditioning and refrigeration. The purpose 7 is to make sure we have qualified people to come to our places 8 of business or your homes. In the event you call an air 9 conditioning man you can be assured, if he is functioning in 10 | the City of Mobile, he is qualified to work on your air + conditioning and not flim-flam you, so to speak. 12 | MR. BLACKSHER: 13 | Your Honor, I don't think that guarantees my air 14 | conditioning work, does it? 15 MR. ARENDALL: ie The next on the list is architectural review board. 7 | Tell us what that does. 18 | A Back to the architectural review board, the board 19 | would review the plans on any remodelling projects or any 20 | alterations to any building that might be in a historic 91 district. The City of Mobile has several historic districts 99 || and you have to go before this board before you can make any alterations to a building in these districts and this is to | assure that the district remains historic and all the buildings are compatible with the period, whichever period you may be | FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 | MOBILE, ALABAMA he Can mt 836 1 2 | dealing with, and again these members are from specific 3 | organizations such as the historic development commission = 4 | a member. The preservation society and various other 5 organizations make recommendations to us as City Commissioners 6 | and we appoint to this board. | 7 | Q The American Institute of Architects is also | 8 recommended to you by the Mobile Association of Architects? 9 | A This is correct. 10 Q Next on the list is the audiotorium board. 11 A Well, the audiotorium board is an active board and | 12 | it is set up to assist the Commissioner in charge of the | 13 | operations of the audiotorium as well as the City Commission | a 14 | in the operation of the audiotorium that serves the entire | | 15 | community. | 16 Q Of the twelve members are three black? 17 A I am sure that is right. | 13 | THE COURT: 19 | That is what the Exhibit shows. 20 A It varies, from tine to time. I think there have been | 01 more and there have been less. ] », | MR. ARENDALL: | 23 There has been some reference in this case to Mr. Gary | 9% Cooper who has testified. Was Mr. Cooper, at one time, a | 9 member of the audiotorium board? | | = Pa £5 | ; | gv ) | time an appointment came open on the board I appointed 428 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 831 A Yes, he was. I appointed him. Q How did he happen to get appointed? A Well, Mr. Cooper walked into my office one day. I had never seen him before in my life. He was tall, handsome, black man and introduced himse as Gary Cooper and I said, "I am glad to know you." We chatted for a few minutes. He said he had just returned from the military. He had been a major in the Marines or whatever branch of the service he was in and we had a nice long chat. He expressed an interest in civic affairs and the nex Mr. Cooper to the audiotorium board which, I think, was his first civic appointment after returning from the military. Q Mr. Mims, is it fair to say that on many of these boards and committees it is difficult for the City to get people willing to serve and if someone will show some interes in participation in civic affairs they likely can get appointed to most anything they want to? A This is correct. We look for people we can appoint to boards and commissions. You just don't go out and, you know, reach in the sky and get a name of someone, you don'y know a thing about or don't know anything about their performance or don't know that they even have a desire to 1f serve. | | 429 | FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 MOBILE, ALABAMA — 838 1 2 | We try to put people on these boards that have an 3 interest in the particular area of responsibility and people 2 who are willing to serve. 5 Taq What is the Mobile beautification board? 6 | THE COURT: i Does the City appoint all members of the audiotorium | 8 | board? | 9 | A Yes, your. Honor. | 10 | THE COURT: | 11 | All right. | 12 : A If I might add, we try to divide these between the | 13 | three commissioners. If there is twelve members on the board, | 14 | then four would have been appointed by one commissioner and | 5 | four by the other and so on. You ask about another board? | 16 MR. ARENDALL: 17 | The Mobile beautification board? 18 | A Well, the Mobile beautification board was set up several | 19 | years ago to do just what it says it does, try to beautify 20 the City and make it more beautiful and engage the community | 91 | in civic pride and clean up programs and things such as this. | | | 99 | Q Does it largely relate to shrubbery and things of | 99 | that sort, or what? [| 24 A Well, it has had, as its projects on a number of a5 3 occasions, the planting of shrubs along various boulevards I 430 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA in different sections of the City, yes. Q Mobile bicentennial..... THE COURT: I want to know who appoints these, each one of them? A The City Commission. THE COURT: All right. Go ahead. MR. ARENDALL: Q Mobile bicentennial community committee. Who appoint ir? A The Mobile City Commission set up this committee for the special purpose of celebrating our bicentennial and they have been quite active during the past year and, at this point, they are phasing out and cease to be after this year. Q Central City Development Authority. What is that? A This is a fairly new organization that has been set up to try to rejuvenate the downtown area of the City as well as an area just west of the downtown corridor and it reaches out to the loop area and it is very active in trying to restore a lot of the area that could, on the other hand, deteriorate. Q Mr. Mims, I notice from Exhibit 64 that at least, at the time that we gave that information to the Plaintiffs, Ss 431 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 840 ° || since then or do you know? BONEN Well, yes. There are several. In fact, one of the } members, I think, just passed away. The president of Gayfers : was on it, I know, and Mr. Van Antwerp is a member and Mr. 6 | -- the man with Title Insurance. | : 0a Goebil? | 8 | A Goebil is a member and I think the three City | 9 Commissioners serve on this authority, also. | 1B 50 And the downtown Mobile Unlimited, as a director? 11 A Yes. He is on it. | 12 THE COURT: 13 All appointed by the City? 14 A Yes. | | 15 MR. ARENDALL: | | 16 Q This, basically, is suppose to have representation of 17 people who have business interests in the central City? | 18 A This is correct. | 19 Q Board of examining engineers? | | 0 | A Well, I don't have the Exhibit in front of me, but | | i 21 | this is another one of those similar to the air conditioning 22 | board. There are specific requirements that go with these 23 appointments. You have to have engineers and Eesresentativet 24 of these various groups. 5 Q Membership is appointed by the City? | FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 MOBILE, ALABAMA I LA Yes. 3 [IQ But it is with reference primarily for people getting 4 | licenses to engage in the business of practicing electricity | here, doing electrical work, is that the purpose of it? 1 a Did you say electrical? 110 I am sorry. Engineers? 8 | A This has to do with stationary engineers, I think. 9 | THE COURT: 10 Stationary engineers? 11 | MR. ARENDALL: 12 | I see what it is. Would the qualifications for 13 | membership on this be a practicing engineer having not less 14 | than five years active experience in a management of stationary TI engines and boilers? 16 | A Right. 17 Q I guess this is sort of a safety group, as far as 18 | whatever stationary engineers are? 19 A Let me give you an example. The jail, we have boilers, 20 and we cannot operate those boilers unless a stationary 21 | engineer is on duty and that is to keep the thing from 22 | blowing up. 23 | Q The next thing is the board of electrical examiners. 24 | Is that appointed by the City? 95 A Yes, it is. | a hQ That has been taken over, its function, I suppose, have been taken over by this new transit authority that has A Well, not necessarily. 433 FEDERAL STENOGRAPHIC REPORTERS P.O.: BOX: 1971 MOBILE, ALABAMA Q My notes indicate that the qualifications here are appointed by the Mobile Electric and IBEW number five zero five, which is a union and by Alabama Power Company; is that right? A This is correct. Q What do they do? A Well, they examine applicants for electrician licenses. In other words, we want to make sure that the people who have a license to do business in the City of Mobile are qualified and they have to go before this board and they are questioned by people who know something about electricity. Q The next one on the list is Citizens Advisory Group for the mass transit technical study. Is that appointed by the City Commission? A Yes, it is. That was in compliance with some State and Federal highway administration regulations and this group is not active any longer, as I understand it. been established? This had to do with major arteries and these people represented the community and lookes into the plans and did research and discussed the impact. aa 1 349 434 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA This artery -- I think we are talking about the Congress - Donald Street artery. They talked about the impact it would have on the community and so forth and so on. To the best of my know- ledge, it has served its purpose and is no longer active. Q I am not sure, Mr. Mims, that I understand, because the next list on here, the next on this list is Citizens Advisory Committee, Donald - Congress - Lawrence Street and Three Mile Creek freeway, is that the same group as the mass transit study technical group, are they the same? A No. I had the two confused. The one I had talked about, that had served its purpose. I am talking about the Congress, Donald group. Q You had determined what the location of that freeway would be and that kind of thing? A Right. Q What about the other one, advisory group for the mass transit technical study? A Well, that is some of our staff people, if my memory serves me correctly. I think Mr. Peavy serves on that committee and various technical staff people. Q The Exhibit indicates there are eight members of whom three are black. Does that help refresh your memory on that? | | | | | | FEDERAL STENOGRAPHIC REPORTERS I P.O. BOX 1971 | MOBILE, ALABAMA 844 A I couldn't tell you, to save my life, who they are. nO 3 || So, you will have to pass on that one.. I am sorry. 4 110.Q The next one is the codes advisory committee. Is 3 that appointed by the City Commission? | 6 oc Yes «it is. 7 | Q Does that committee relate to drawing up codes, as 8 far as building codes are concerned? ] 9 | A This is correct. | 10 Q Mr. Mims, I believe I am going to give you a copy of \ 1 || this Exhibit 64, if I may, so it might help you remember what each of these organizations are? I A Well, we often say we have fifty-seven varities here on these boards. So, it is kind of confusing. 5 | Q I will ask you if the qualifications for membership ] 1 | on the codes advisory committee; an architect, one structural 7 | engineer, a member of the American Society of Civil Engineers. | 1% | one mechanical engineer, a member of the society of heating ow | and refrigeration engineers, one electrical engineer, a 0 | member of the American Institute of Electrical Engineers and ] . | the engineer of the city of Mobile; one member of the Building ] 5 | Trades Council; one member of the Association of General ] ” Contractors; one member from the Mobile Home Builders | Association; and one member from the Mobile Real Estate | Association; and one member of the Mobile Air Conditioning ) 1 ] 436 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA contractors. Does that sound about right to you? A Yes, it does. Q Now, actually, these building codes normally follow | the so called southern building code, as worked up in | municipalities all over the south and perhaps all over the country, do they not? A This is correct. Q The next on the list is the commission on progress. Is that appointed by the City Commission? A Yes, it is. Q What is it? A The commission on progress is actually a bi-racial committee and that was the title or the name of the committee for many years, a bi-racial committee of the City of Mobile, and it was at my suggestion a number of years ago that we change the name to Commission on progress, because we were dealing with a lot of matters other than race oriented matters. Originally it was set up to deal with the race problems in our community and, over the years, met a great need in the community. Q Now, did it, for example, have anything to do with a Mobile restaurant downtown being integrated before they wer elsewhere in the State? 345 437 | FEDERAL STENOGRAPHIC REPORTERS | | P.O. BOX 1971 MOBILE, ALABAMA SRA NOSRPREE SE ae es A Yes, they were. MR. BLACKSHER: | N O Your Honor, I object to counsel testifying. 5 || MR. ARENDALL: 6 | I think it was leading. 7 Q I will ask you, were there any informal discussions 8 and arrangements made that did lead to the integration of | 9 | downtown lunch counters? 10 A Yes. | | 11 Q At what point in time did that occur with reference 12 | to other cities in Alabama? 13 | A Well, it was during the sixties when there were a 14 lot of turmoil not only in this community but in many 15 | communities and this bi-racial committee as it was known at 16 | that time, worked long and hard to assure that black people . | 17 | would have free access to any place they desired to go, not | 18 || only restaurants, but we had, one time, a man working to ] | 19 | see that blacks were hired in the banks and in the savings | 20 | and loan businesses and in the downtown businesses and we | 01 | went to a great deal of effort to see that black people were ] 99 | put in these responsible places. 93 | Q Those efforts have your personal support and assis- | 2 | tance? | A Well, absolutely. FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 847 Et sti ERIN: ¥ PERE ee A etn hae ——t 2 | THE COURT: 5] Just a minute. Who appointed the code advisory, 4 the City? 2 | A Yes, sir. 6 | THE COURT: Commission on progress, the City? 8 | A Yes. 9 || MR. ARENDALL: 10 Q The next one is the educational building authority. Who appoints it? 12 A This is no doubt a City appointed board, because if 13 || I am not mistaken it is ome of these propositions where this 14 board is used as a vehicle whereby financing can be obtained 15 | for educational purposes. I am not sure if this is the 16 University of South Alabama group or which group, but we 17 || have several, if my memory serves me correctly that we 18 | appoint three to five members to this authority and then bonds are sold and this educational facility retires those | 920 | bonds. © | Q You think this must be one of the industrial revenue 99 | agencies where they get approval of the city and get themselves 93 | incorporated and they sell tax exempt bonds in aid of a 94 | public welfare type of program? A Yes. 18 ) (@ 1} 439 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA = SE era Q Mobile area public higher education foundation? A This would be the same type of entity set up strictly for -- as a vehicle where these funds can be obtained in the facility built for public use. Q Find Arts Museum of the South at Mobile. Membership there appointed by the City Commission? A Yes. And normally we appoint people who are interested in fine arts, people who express interest in the museum and in some cases, people who have made sizeable contributions to art in the museum in Mobile. Q This is the committee that is in charge of running what we use to call the art gallery in municipal park; isn't that correct? A This is correct. Q Are the nominees for it submitted by the Mobile Art Association, the allied arts council, the art partons league, the art gallery board and the Mobile County Commission and the City Commission? A This is correct. Q Fort Conde Plaza development authority. Is it appointed by the city? A Yes, it is, and this is an unusual arrangement. The three City Commissioners serve on this authority as well as four other people who represent the interests within that 440 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA plaza. In other words, some of the owners of property or representatives of owners of property and, in one case, Mrs. Bester Ward represents the Fort Conde Charlotte House, which is a historic museum within that complex. The purpose of this authority is to promote that plaza area. Q And to get private industry and businesses to develop things that would be consistent with the historical area? THE COURT: This Exhibit only reflects four members. I assume then that you left off the City Commissioners that had membership? A Apparently, your Honor. THE COURT: All right. MR. ARENDALL: Q Mobile Historical Development Committee. Is that appointed by the City? A Yes, it is. We have certain stipulations as to who goes on there. In other words, various groups make recommendations, normally people interested in historic development. Q Let me read some names to you and see if this sounds about right. The Allied Arts Council, the American 5849 441 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 850 Association of University of Women, American Institute of Architects, Art Patrons League, Colonial Danes, Three City Commissioners, County Board of Realtors, Mobile Jaycees| Women's Architectural League, downtown Mobile Unlimited, Fort Conde Charlotte House, Colonial Danes, Historical Mobile Preservation Society, Historic Mobile Tours, Ine., Jaycettes| Junior League, Chamber of Commerce, County Board of Commissioners, Oakleigh Garden Society and Richard's DAR House, does that sound about right? A Yes. Q Independence Day celebration committee? A Well, this is a committee that has been appointed by the City Commission that started back in 1972 when we decided we need to have an Independence celebration every year. This committee puts on the 4th of July celebration held at Ladd Stadium. Q How many people did you have this year? A We had thirty-five thousand people. THE COURT: How many does that Ladd Stadium hold? A About forty-six thousand, something like that. MR. ARENDALL: The next one is the Industrial Development board. Is this another one of these financing arrangements? F442 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA ro 23 24 NY ) 1} A Yes, it is. Q The next is the Malaga Day Committee, is that ..... THE COURT: If you don't mention who appoints them, I assume the City appoints them. MR. ARENDALL: Yes, sir. Q Mr. Mims, unless the City does not appoint them, let us know, otherwise I won't even ask you the question. We will just assume the City appoints them. A On this Malaga Day Committee, I am not sure that is even still in existence. It could be or could not be. We have a sister city's program and Malaga, Spain is one of our sister cities and we have had some celebration here called Malaga Day celebrations and I am not even sure that committee is still funding. Q If members were a group who went to Malaga in 1965 and got the sister city thing going..... A They have been the prime movers of this Malaga Day program. Q The Mobile Housing Board. Now, that is a highly significant group, is it not? A The Mobile Housing Board is one of the most importan boards that we have and simply because it provides public 851 t 443 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA EY 5. 852 housing and meets the need of so many people in the community. This is one of our most important boards. Q And I asked you about that, of course, in my earlier examination? A Yes. Q Next is the Mobile Medical Clinic Board - psychiatric. Is this another one of these internal revenue bond organiz- ations? A It is a vehicle for financing. Q Yes. And the Mobile Medical Clinic Board, Tranquil Aire, that was a vehicle for financing the building where Tranquil Aire is located? A Yes. Q The Port City Medical Clinic Board. That is another such organization, is it not? A That is correct. Q The next is Mobile Medical Clinic Board, Springhill. A Yes. This is correct. If I might add here, your Honor, the City Commission has very little, if anything, to do with these boards once we make these appointments. In other words, we have recommendations made to us and we try to put responsible people on these boards and once the financing is arranged then really there is nothing more for us to do. So, we have a lot of -- it looks like no 444 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA a lot of boards here, but some of them we don't have much to do with. Q Mr. Mims, I will ask you if this isn't a typical way, three doctors decide they want to start a hospital and they want to arrange financing through tax exempt bonds and they come to the City Commission and say that three of us are getting ready to build another hospital at such and such a place and we need one of these industrial revenue boards created. Would you appoint the three of us or maybe they say our accountants or our lawyers, some people to go in that they designate and y'all do what they ask you to do? A This is the way that works. Q The Medical Clinic Board of the City of Mobile. The Medical Clinic Board, - second, that is the same kind of thing? A Right. Q The Mobile Medical Clinic Board, the same kind of thing? A Right. Q Now, we come to the Mobile Library Board. Is that appointed by the City? A Yes, it is, and it is with the Commissioner in charge of the operation of the libraries. Q How much money does the City contribute to the 853 445 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA ae at eet SE EE ei SRR SR RL. 1) libraries here, do you know? A Several hundreds of thousands of dollars. I don't have that figure in front of me, seven or eight hundred thousand dollars a year. Q Greater Mobile Mental Health Retardation Board. That is another one of those industrial development bond boards, is ir not? A Well, not necessarily. I think this is a require- ment of the Federal government that we set up such a board and these Federal funds are channeled down through this board and then allocated to Mental Health and other things. Q Does the City Commission appoint the members? A Yes. Q Is this the group that works in conjunction with the rotary clinic or elsewhere? What agency....... A Well, they work with the Mobile Mental Health Center| I know that, and I suppose any other organization that was in this business of helping the handicapped and they would g; J to this board and clear any application or what-not that the; ~ might have as far as federal funds are concerned, kind of a screening board, as I understand it, to try to bring it in altogether to keep things from going in every direction. If I am not mistakened, this is a fairly new arrangement here. Q Pier and Marina committee? 446 | FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 | MOBILE, ALABAMA | ARS 855 I 2 2 A Well, at one time, we had wanted to build a public 3 | marina over here just this side of the battleship and we had 4 | high hopes of it becoming a reality until we ran smack into 5 | the EPA people and they put such a damper on us, you might 6 | say, that the committee has already served its purpose and 7 we didn't accomplish anything. 8 Q The Mobile Planning Commission? 9 | A The Mobile Planning Commission is an important 10 commission, because it has to do with zoning and the planning 11 of the City and many of the improvements that are being made 2 | today in the City of Mobile are end results of planning 13 | that took place ten years ago. 14 Q All right. Policemen and fire fighters pension 15 and relief fund board? 16 A Well, this board, as I understand it, administers the 17 funds and tries to get as much return on the money as they 18 can so that they can meet the obligations of the fund. 19 Q Is this created under State act? 20 A I am not sure about that. I really am not. I know 21 some of the people who serve on it, but I am not sure. 99 Q I will ask you if this sounds right to you that the oA fire chief is designated in an act creating the board and that 54 the police chief is designated and that there are three bankers 5% on it and one man owning his business and one who has his Ea | [] (¥ )] 447 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA own investment business, the basic purpose of this is to see to the proper investment of the funds that are ultimately to be paid out for pensions and relief for policemen and fire fighters? A This is correct. Q Next is the Mobile Tree Commission? A Well, this is an important commission. If you want to get a tree cut, because you had better not cut one unless you go through them. We usually try to put people on this committee or commission that is interested in preservation of trees and I think it is a good committee and they work awfully hard to preserve the beauty of our City, namely our trees. Q Next is the Neighborhood Improvement Council? A Neighborhood Improvement Council, no doubt has done as much or more than any other group to improve our neighbor hoods. They go into the neighborhoods and have meetings, encourage the property owners to upgrade their property, to clean up, fix up, paint up, and it is quite an active group. Q Mr. Mims, there has been some testimony here from residents of various areas of the City with reference to what they feel are inadequacies in City services in their own areas? A Yes. Q Is this an agency that relates itself to that problem 448 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA he i ttl B87 3 | or not? 7 | A Well, the neighborhood improvement council has 4 | community meetings and they run articles in the medium and > || in the newspapers. Usually they will have the community 6 | that they are having the meeting in, the blow up of the map 7 | -- say it is going to be the Dog River area where I live or 8 | the South Brookley area, they would have a map of that area 9 | and they would they are going to have a neighborhood 10 | improvement meeting in that area and every citizen in that 11 area is encouraged to come and express themselves, at that 12 particular meeting, and they go into things like the code, 13 what you need to do to bring your house up to standard, 14 up to the code, and help people know how to improve their 15 dwellings and their living conditions, and much has been 16 done in these communities because of the neighborhood HY, improvement council. 18 Now, they also, for instance, say they go into a 19 community and citizens complain about the lack of street 20 lights. Then Mr. Locke, who is the secretary of this 21 improvement council, he would come back and write me a memo 929 as public works commissioner in charge of the street lights, 93 || and say last night we met in Cottage Hill, or wherever it 94 || might be, and we found, in a certain area, the street 95 lighting, in our opinion, is not up to the City policy or | ga | 449 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 858 the City standard. Then I would direct the electrical superintendent to go and make a survey of this area, come back then and give me his recommendation and if the area was not lighted in accordance with our policy then we would, as rapidly as we could, light the area in accordance with the City's policy. Q What is the City's policy? A On street lights? Q Yes. A We have a light on every corner and every two hundre and fifty feet down the Street or mid-block, or at the end of dead ends, which is adequate lighting, and we receive an award last year as being one of the best lighted cities in the United States. Q Mr. Mims, I have references here to three different organizations, the names of which appear to me to be somewha similar. We have been talking about the Neighborhood Improvement Council that is headed by Mr. Joe Locke. There is a community service group, is there not? A Well, no.. There may be a service community group, but you may have that confused with a program that I instituted a number of years ago that I call community service meetings. t 450 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA el & — — i 359 1 | | 2 | Q What is that? 3 pA Well, this is a program whereby I go into the 4 I neighborhoods with members of my staff, primarily, and on n occasion we take someone répresenting the police and 6 | fire department and the parks department and other depart- ~~ ] ments, but primarily people from public works and we go 8 into the communities and have a meeting at a school or parks 9 | building or community building, somewhere centrally located 10 | as we could in the community and invite the public to these 11 meetings and try to get input from the public and then go 12 | back and try to respond as rapidly as we can to the requests 13 || of the people. 14 Q What is the difference between the neighborhood 15 improvement council and your community service meetings or 16 do they just overlap? 17 A Well, they could overlap, but the neighborhood 18 improvement meetings are -- they deal primarily with the 19 upgrading of the homes, of the residences in a given area 20 where the community service meetings deal mostly with the 21 needs from a public works standpoint. 99 In other words, the drainage problems, the lighting 23 problems, the street problems, sanitation services and things 94 like this. What I was trying to do when I initiated this 0, program several years ago was to get input from the people, 21 22 23 no QQ E y 451 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA because it has been my sincere desire all along to meet the need of this community regardless of who they are or where they live. The only way to know the needs is to get out in the community and hear from the people. The television people and more specifically, WKRG, for a period of a year or two, went to everyone of these meetings and taped these meetings and played a portion of the meetings back at a later date and they were not only viewed, -- the programs were viewed by the whole community. In other words, if we met in Toulminville, for instance, then the next Sunday or whatever, the whole area could see that we had had a meeting. And I might say, speaking of the Toulminville meeting, if I might, we have a swimming pool 860 at Gorgas Park today and it is solely because of the idea that was brought up at one of these community service organization meetings and I came back to the City Commission with the idea and the City Commission approved it and, today, the kids are out there swimming this afternoon because of that. Q Do you have these meetings, then, in the black areas as well as in the white? A Yes. It has been my policy to have them in every area of the City. In fact, we took the old ward map and tried to put about three wards together and have a meeting in an area that would cover about three wards and then the | | 452 FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 MOCBILE, ALABAMA amaELL CE 861 | 2 : ward map was changed and so we quit using the old ward map 3 || and now we just go to different areas. 4 | Last week I made Trinity Episcopal Church in an 5 | area called the Chapman Improvement area. Three or four 6 | weeks ago I met with a group out in the Carver Court area. 7 | Q That is a black area? 8 Joh Which was a predominantly black area and then, a 9 few weeks prior to that, we met with another group -- I will 10 have to get my records to tell you where I have been over 11 the last months, but we have periodic meetings out in the 12 community with the people and, in addition to that, I make 13 || it a point to ride in these communities myself to know what 14 || 1s going on. 15 | Q As long as I am asking you about things with somewhat 16 | similar names, what is the community development program? 7 | A Well, the community development program of the 18 | City of Mobile is certainly not to be confused with another 19 organization known as the community development project. 20 We are talking about now the City of Mobile's community 21 development program. : 99 This is a program set up and we have a committee 93 called the community development committee to make improve- 24 ments in the communities throughout Mobile, taking advantage 25 453 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA of Federal funds. Now, these Federal Funds, at one time, were designated. You would get so many millions of dollars for this and so many for that. Congress changed all of that and now they send the money down in a block, one lump sum, and then we, as public local officials, have to make a decision on where these monies are to be spent. Now, in order for us to set priorities as three elected commissioners, we have established this community development committee that holds meetings in the various neighborhoods and we have set some priorities on these funds. So, this is what the community development program is. Q That is the program that is headed by Mr. Barnett, is it not? A He is one of the members of the committee. I think Jimmy Alexander may be is the chairman. Q The Housing Board man? A Yes. What we did, if I might add, we put the planner, Mitch Barnett, the public words director, the Housing Authority Executive Director, the finance director, as well as the building inspection department head on this committee. | FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 MOBILE, ALABAMA | BRT EE ve Si pee en en IBRD | 2 | We felt like we had a cross section of the people 3 | who were going to actually get the work done once we initiated 4 i it. These people are going to be held to be responsible 5 for carrying out these projects. 6 | I am sure you have the map showing where all of 7 these projects are and where this money is going to be 8 | spent and I am sure that will be introduced later on during 9 this trial. 10 | Q All right. I think I left out here and let's go 11 back to it. 12 I believe we are now on the plumbers examining 13 | board. 14 | THE COURT: 15 Just a minute. Let me ask him a question. 16 With reference to this neighborhood improvement 17 council, I understand there is some ordinance or regulation 18 or something in a city with reference to requiring people -- 19 with reference to their homes to keep them in a certain 20 state of repair and painted; is that correct? 21 A This is correct. 29 THE COURT: 23 Now, if that is correct, then the question I want 24 to ask you is this neighborhood improvement council related 95 to those matters? | 455 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA A Yes, it does, your Honor. MR. ARENDALL: The plumbers examining board. I will ask you if these qualifications sound about right. The chief plumbing inspector, one master plumber, a member of the mechanical contractor's association, one master plumber, a member of the master plumber's association, one journeyman plumber and one representative of the publjc? A This sounds correct. Q And this is with reference to the licensing of plumbers? A This is right. Q The recreation advisory board. I see from Exhibit 64 that members of that board's term expired in 1974 and they were not re-appointed. What was the purpose of that board and what was the thinking about not re-appointing it? A If my memory serves me correctly, the Commissioner in charge of recreation, at that time, proposed this advisory board and if I am not mistakened, he recommended these names to the City Commission and we appointed them and they were to help him with his recreation program. Now, I did not come in contact with these people. Q So, you think I had better ask Mr. Greenough about that? 456 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 1 | : k 2 | A I think you had better asked Mr. Bailey about that. # FE Mr. Bailey was the one? 4-1 2a Yes, sir. B Self <Q The South Alabama regional planning commission? 6 [isa The South Alabama regional planning commission is 7 | what it says it is. It is a regional planning commission. 8 | It is a three county operation and local officials, as well 9 as appointed officials, serve on the regional planning 10 commission and every application for Federal funding Il comes through this regional planning commission. 12 Now, what we have done, as far as thetCLEY of 13 Mobile's government is concerned, we have appointed members 14 of our regular City planning commission to this commission 15 and, of course, you see the number there. 16 It says one black and six total members, but there 17 are many blacks who serve on the South Alabama regional 18 planning commission from the other cities and from the 19 other counties that are represented on this commission. 20 THE COURT: 21 Total members of Mobile, though, is six; is that 22 right? 23 A This is correct, your Honor. 24 MR. ARENDALL: 7 25 I believe I have already asked you about the board 457 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 866 of water and sewer commissioners. Now, the employees insurance advisory board. A This board was set up to help the City Commissioners select the right kind of insurance program for our employees. We selected persons from the various departments to serve on this board and to screen all insurance programs before these programs are presented to the City Commission for approval. For instance, if xyz company were to come to my office this afternoon and say, look, we have a fantastic plan and it is going to cost three dollars a month and blah blah blah, and we want to put it on payroll deduction and we would send this xyz company before this board and let this board screen them and then if the board, representing all of the employees, thought that this was a fantastic deal and they wanted it and they would bring it to the City Commission and say we think this is great and we know these people can get more than the amount required. We have to have three hundred before we put anything on payroll deductions. And we say, okay. The committee approved it. You go out and get your three hundred and dom't come back until you have your three hundred, because we are not going to put it on payroll deduction. THE COURT: 458 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 867 no (@ ) | | I lost out on the board of water and sewer commissioners. MR. ARENDALL: I guess we can come back to that, Judge. This is the organization established under state law, which runs sani- tary sewer and water for the city and, indeed, some outlying areas, doesn't it? A This is correct. I might add, in addition to the housing board, this is, without a doubt, one of the most important boards that we have, because every family in the City of Mobile is affected by this board and we could have one black gentleman on this board. THE COURT: Although it is established by state law, does the City make the appointments? A Yes, sir. We make the appointments. THE COURT: All right. MR. ARENDALL: This is the board that Mr. Von Sprecken is chief career man on; isn't it? A That's right. He is the superintendent of the water and sewer board. 459 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 868 MR. ARENDALL: We expect to have him here, Judge. All right. The next one is Mobile County Hospital Board and I have some notation on my copy of this Exhibit -- I am not sure it is on the original. It looks like your typing and it says '"'Owned by University of South Alabama. City has no connection'l . A I am not sure that this board even functions any longer. You know, we turned the hospital over to the university and they operate it. We have no connection with it any longer. Q I see. Frank S. Keeler Memorial Hospital? A I think they are out of business, also. Q The Arts Hall of Fame committee. Do you know what that is? A Well, it looks like one member and I am not sure who that is unless it is the recreation commissioner. Q See if this sounds like a 1971 state act under which persons are to be elected to the State Arts Hall of Fame and must have background in arts and the City Commissioner has appointed a representative of the Mobile Art Gallery Board; does that sound about right? A It sounds about right to me. Q The next is Public Education Building authority. Is 460 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 869 24 25 that another one of these industrial revenue bonds? A Yes. It is strictly a financing thing, Q And the educational board? A The educational board, no doubt here, is the group of employees that we have that screens the applicants for furthering their education. In other words, we try to co-operate with our employees as much as we can so that they might further their education. In fact, the City Commission pays a portion of employees tuition, say, at the University and, say, patrolman Jones wanted to go to school at night and take up criminal law, or whatever, and he would make his application to the City Commission through this educational board and the board then would screen this applicant and make sure he is sincere in what he is trying to do and we have requirements that you have to stay with the City "x" number of years. I think it is three years after you get your degree or after you use this money or else you have to refund the money, but these boards screen these employees. Q Members of that board are largely employees of the City, members of the public, or what type of persons? A As I recall it, they are employees, department heads, and maybe someone from the personnel board on here. Q Now, Mr. Mims, there has been a lot of testimony in J to 461 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA here about surface drainage in Mobile. THE COURT: Why don't we take a break right here. Take about a fifteen minute break. (RECESS) THE COURT: All right. You may proceed. MR. ARENDALL: If your Honor please, I would like to apologize to the Court on an error in judgement that I made. Mr. Mims had told me that at four-thirty that he had to leave here in order to get to Santa Rosa Island to speak to some three or four hundred people. I told him that I thought we could have completed the examination and cross-examination. I have taken so long with my direct today that I doubt if we make it THE COURT: Just go ahead and let him finish up tomorrow. MR. ARENDALL: Thank you, Judge. Mr. Mims, your department has charge of Mobile drainag problems? A That is correct. Q Tell us generally about them and what you have done and indicate whether or not you have sought to treat fairly 870 ec 462 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 871 the various black areas. A Well, under the supervision of the public works commissioner, comes the general heading of drainage and, of course, the City of Mobile has been plagued with severe drainage problems for not only decades, but I would assume centuries. The ground or the topography here, the City is built on the river, as you know, and it all started right here near the river and moved westward. It is very low lying areas and we had tremendous problems in the old part of Mobile with drainage. We have tremendous problems in the new part of Mobile with erosion and the sand washes down off of the hills into the low lying areas and clogs up the drainage systems in the old sections of the:city. So, for centuries we have had drainage problems. Ther has been a lot of talk about drainage for a number of years, but there was not an awfully lot done about it until recently. When I first ran for office in 1965 and my advertising material and my brochures will substantiate this, that one of my main concerns was drainage and alleviating the problems ths existed. So, the first thing I did was to try to establish some kind of systematic maintenance program and we gave t 463 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 872 instructions to the public works superintendent and to all drainage personnel that these drainage easements were to be maintained on a periodic basis. We bought some of the finest equipment that can be bought to clean catch basins and to clean storm drains. Some of the most modern equipment to clean ditches like Three Mile Creek and One Mile Creek and Bolton's Branch and Saltwater Branch and the various others -- what we call unimproved drainage easements and it has been our policy, over the last ten years, to maintain these easements ‘on a regular basis and testimony here during this trial has indicated that the city has cleaned these drainage easements on a periodic basis. In addition to the maintenance program, the cleaning of these drainage easements, we have entered into what we call the master drainage program of the City of Mobile. For a number of years we tried to get into this and finally came to the conclusion that we were not going to ever get this drainage corrected until we just, you might say, go into it headlong and try to find the money and sell bonds and get the revenue or the bonds to do the projects. So, in 1972 the City Commission met and agreed to the master drainage program. We have sold bonds, millions of dollars worth of bonds, to be paid over to the next number of years and we are making many improvements in areas of both 464 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 873 3 white and black where problems have existed for over a hundred years, in some cases. I have gone into these communities and talked to our citizens, both black and white, about the problems and with the resources available, I think the City of Mobile has come a long way in improving the drainage in our city. Our master drainage program, as far as I am concerned, has been initiated and promoted without regard to race, whatsoever. Q Let's see, what is the total estimated cost of that program? A Well, we started out with about twenty million, but I imagine, by 1980, we will have spent thirty million dollars THE COURT: What do you mean you started out? A Well, that was our projected program, but inflation and other things have caused prices to go up and we had added to the project and <n. MR. ARENDALL: Do you have outside engineering consultants to advise you with reference to that, or is this done by city personnel] A Well, when we went into this program we assigned thres engineering companies to this master drainage program and the: engineers have certain water sheds assigned to them. We have three water sheds in Mobile; the Three Mile Creek water shed, se 24 25 465 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 874 The Dog River - Eslava Creek water shed, and the Mobile River water shed. Every drop of water that falls into Mobile, goes into one of these three water sheds. Each one of these engineering firms, Polyengineering, David Volkhert and J. B. Conversing Company, have one of these water sheds assigned to them and they are doing the designing of the storm water system in these areas. We have made a great deal of progress. There is not an area in the City but what you can't see some of the progress that has been brought about because of this drainage program and, in the years between now and 1980, the program that can be presented here shows our projected projects. Q Has some work been done in each of the three water shed areas? A Yes. This is true. Q Approximately how much money have you spent so far on actual out of pocket expenditures, to date? Could you give us that figure? A I can't recall, but it would be more than ten million dollars has been spent already on the master drainage program. Q Do the engineers tell you that once it is completed that Mobile will then be adequately drained? A Well, I don't think you would ever find an engineer or politician, either, that was in his right mind that would C o 46 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 875 (§ say you would always be protected from a storm or flooding situation. Normal flooding conditions will be eased tremen- dously when this entire program has been completed, but if yor have what they call a hundred year flood come, you know, the whole area could get under water. We can't protect the area completely from God's floods, you know. Q You mentioned some white areas that have had this problems and I would like for you to mention some of those specific locations, if you will, please. A Well, there is one project that we have under way right now that has -- where there is a need and the need has been there for a hundred years, I am sure. I know it has been there for over fifty years, because I know people who were born there fifty years or more ago. Q Where is that? A This is in the Laurel - Devitt - Monterey Street area and I might add that we had a community meeting there with some people, including Mr. Brown, whose name has been mentioned here and other testimony and I think he would have to admit that he got mighty good response out of the City government in this project. We're spending over a million dollars in the Monterey - Laurel - Devitt Street area. This need has been there, as I said, for low many years. THE COURT: 0 467 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA I am familiar with Monterey Street, which is between Springhill Avenue and Government Boulevard. Is that the Monterey area you are talking about? A Yes, your Honor. THE COURT: Does it go also south of Government Street? A Monterey does. MR. BLACKSHER: Yes, sir. One block. THE COURT: The area you are speaking of is north of Government? A Yes, sir. THE COURT: All right. MR. ARENDALL: Now, let's talk about drainage and some of these othe] areas that there has been some testimony about. There has be some talk here about Trinity Gardens, that area came into the City only intl961, .did. it not? A I believe that is when the vote was taken by the people in that area. It was in 1965, I believe, that service were provided and the people began to pay taxes. Q Just in a general way, would you tell us what the 876 en basic problem is there, as you understand it, with reference to — no 24 25 468 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 877 drainage? A Well, I will be happy to, because I have been in the Trinity Gardens area many times and must confess that the problem there is an unusual problem and it is mainly because the area lies between some railroads and down in kind of a low land or flat land that has been described here, in testi- mony, that was like a saucer, which is a good way to describe it, because it is going to take an awful lot of drainage to get the water out of the area and we have been working on it over the years and, with our community development program that we mentioned here earlier, we should be able to drain this area and then we can move on into the paving of the streets. Q When it gets drained, where does the water go? On what water shed is it located? A This goes into the Three Mile Creek water shed. Q Isn't that going to compound your problems on Three Mile Creek that you heard testimony here about, the Crichton problem? Wouldn't that compound your problem? A Any time you put more water into a stream, I guess you compound your problems. However, we have worked extremely hard to get Three Mile Creek cleaned out on the end near the river and we have spent thousands upon thousands of dollars dredging Three Mile Creek and we feel that, with no 469 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA these improvements, as well as the study that is being made now by the Corp of Engineers and, incidentally, this bill ios just passed whereby a hundred and fifty thousand dollars in planning money for the Corp of Engineers was set aside. The Corp of Engineers fit into this Three Mile Creek, because Three Mile Creek runs into Mobile River and Mobile River is part of the Tennessee, Tom Bigby program. Anyway, we have a hundred and fifty thousand dollars planning money and the Corp of Engineers is going to help us with the drainage on Three Mile Creek. Q There has been some talk, also, about drainage problems in the Plateau area. On what water shed is that? THE COURT: Where does Three Mile Creek run into Mobile River? A Well, it crosses Telegraph road north of here where the little bridge is where you see some little tugboats sitting there, right north of the State Docks, to be more specific. THE "COURT: All right. MR. ARENDALL: Going back to Trinity Gardens for just a moment. I understood you to say as soon as you could get your 878 470 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 879 24 25 drainage worked out there, then you would go in with street paving; is that right? A This is correct and, if I might say this, one of my concerns naturally has been the streets of Mobile and the only unimproved streets we have left within the city, you might say, are located in the Trinity Gardens area. We have paved dozens of miles of streets in the last ten years in Mobile and we have a few left in Trinity Gardens. It is absolutely impossible for us to pave these streets until we drain the area. We have paved some streets in Trinity Gardens, the ones we felt like we could pave and, you know, get by with, so to speak. Because it is absolutely money thrown away to go out and put asphalt in an area that you can't dry out and the streets will stay torn up all the time and fail and you will have a problem, sure enough problem, on your hands. So, we have just about paved every street in the City of Mobile with the exception of those right there in Trinity Gardens which we hope to get as soon as we get the area drained as with these community development funds. Q Now, there has been some talk about Plateau. On what water shed is it, or does it have a drainage problem? A Not what you would call a general drainage problem FEDERAL STENOGHAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA like Trinity Gardens. I doubt if you could point to any community in the City and say it is completely free of all drainage problems. But Plateau does not have the general problem as does Trinity Gardens. Q There was some talk here about dead bodies getting washed away. Would you tell us about that, if you know anything about it? A I think that was an exaggeration. It was called to my attention a year or so ago that there was a problem with a cemetary. We did some work around this cemetary and some of my staff people can elaborate on that more than I and get into detail on it, but we did do some work around the cemetary. I understand that this area was being used as a burying place down off the side of a hill and on down into what you might call a slew or spillway or drainage easement and I am sure that in case of a flash flood or something of this sort, the whole area was covered with water and it is very likely that some of the grave sites were covered with water, because the people are buried right on down into the low land. I don't know where the health department has been, or whoever is supposed to regulate the cemetaries, but whoever i supposed to inspect cemetaries and regulate them, apparently were not stopping the burying of people down in these low . — id 7 Se te B80 472 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA Bal places. I think you could safely say, in some places, when a flash flood came that the water, perhaps, covered the graves. As far as bodies floating around, I think that is an exaggera Q There has also been some complaint about the drainage in the Crichton - Liberty Park area? A Yes. There is a tremendous problem in that area. To my knowledge, it doesn't present any flooding problem, but there is a big ditch that comes down through Crichton that originates up about Pages Lane or back of Delchamps Shopping Center there and goes down by Nall Street and across Bayshore and Mobile Streets and on into Three Mile Creek. It is a huge drainage easement. The people in the area continuously are filling it with old tires and litter and furniture and the maintenance problem is tremendous. Some homes have been built right up on the edge of the creek. We are aware of some of these problems, but we are also aware of the fact that it is going to cost several millions of dollars to correct this problem. It is in our master drainage program and it will be taken care of, but, as I say again, with the resources that we had available, I think we have done a fantastic job with our drainage progrs Q Mr. Mims, earlier in the trial I introduced, as Exhit tion. (im. it (W e) 473 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA FREE RRR REL = 0 0 3 i fe LU Hay 80, a news release that you had issued on March 16, 1970. Would you hand him a copy of that, please? I believe his Honor inquired as to whether this million one hundred and forty-one thousand three hundred and seventy-four dollars that is stated on the second page to have been the total expenditures between October, 1965 and March 16, 1970, was all spent in an effort to do something about the problems in Trinity Gardens? A This is correct. Q And is it fair to say, too, that during that period of time Trinity Gardens had produced only twenty-seven thousand dollars in property taxes for the City? A I had our revenue people develope these figures and I am sure they can be substantiated. THE COURT: Mr. Arendall, are you suggesting that when an area of the city doesn't produce certain revenue, they are not entitled to certain services? MR. ARENDALL: No, sir. I am not. What I wanted to do was to ask him this next. Mr. Mims, does not this demonstrate that the policy of the City of Mobile, with reference to the expenditure of public funds has been dictated by a desire to help a particu- {| ) 474 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA lar area that needs them as distinguished from just giving me back fifty dollars a year in services if I pay the City fifty dollars in taxes? A Well, I can say emphatically that we have tried to provided these services in the Trinity Gardens area, because the area became taxable right after I was elected to office in 1965 and I began, as public works commissioner, to provide these services in the Trinity Gardens area. Prior to that time, they didn't have any service at all. THE COURT: I take it that your contention that the City provides services according to needs rather than according to revenue? A Yes, sir. If I might add we can't always do everything everybody wants done in any given community. MR. ARENDALL: Now, I notice on the second page here, there is a reference to sewer installation and water installation and a note that two hundred and fifty-eight thousand dollars of federal funds had been secured and a further note that a portion will be returned over a ten year period in assessmenf Taking, first, the item of sewer installations, I had understood from your prior testimony that the Board of Water and Sewer commissioners were in charge of the sanitary in eS. 475 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 884 2 sewer development for the city in this area. 3 Would you explain how it came about that the City 4 itself was in the picture here? 5 A Well, the water and sewer board was established, to 6 begin with, in order that that entity might sell bonds and 7 provide these services for the people. Over a period of 8 years the board of water and sewer commissioners apparently 9 reached their debt limit and they could not sell any more 10 bonds. Then the citizens of Mobile, these in particular, 11 Trinity Gardens, as well as thousands of others, came to the 12 board of City Commissioners, at that time, and said, look, 13 we want these services. We are in the city and we want these 14 services. These people in Trinity Gardens came into the City 15 and began to pay taxes in '65 and said we want these services 16 and we go to the water and sewer board and say, look, you are 17 suppose to provide these services and they say we can't provide 18 the service because we are at our limits, as far as debt 19 is concerned. 20 The City Commission turned around then and sold bonds 21 and made these improvements and assessed part of the cost 29 against the property owners and this is the only way these 23 improvements could have been put in, at that time. I think 24 it was a case of a city government responding to the needs 95 of the people. | 476 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 885 no (© ) ] ~~ ] Q That would be true of the momey as indicated here for water installation, I take it? A Yes. They were both installed at the same time. Q | Now, you have mentioned briefly, among your duties as public works commissioner, is that of paving and you have spoken about that generally. Let me ask you a few general questions. Where a subdivider desires to take a rather large piece of property and turn it into a lot sales venture, who puts in the streets? A The developer. Q Does he have to do that in accordance with City specifications as to the nature of the street and the underground drainage and things of that sort? A Yes, he does, and then he turns them over to the City when he has completed the project. Q Once they are inspected and approved by the City, the then become City streets, but it is the developer who puts them in; is that correct? A This is correct. Q Would it be fair to say that since the basic growth of the city has largely been to the western section of the City that many of the streets in that area have been paved by private individuals as distinguished by the City? 2d tt | 24 25 477 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA A Well, this is absolutely correct. Q Then in those areas, however, where there have been no real estate developments in recent years the City, itself), has been the one to do the paving; is that right? A On all unimproved streets where there were residences the City has gone in on an assessment basis and improved the streets and, as I said a moment ago, we have just about taken care of every one with the exception of some in Trinity Gardens. Q Now, there was a lady here earlier in the case who -- no, a gentleman, Mr. Pettaway, who was talking about Lincoln Street. I understood him to say that the people out there had always been willing to pay for an assessment for street improvements and then I introduced Exhibit 81 on that subject. Do you recall the Lincoln Street situation? A I recall Lincoln Street quite well, because I set on a Reverand Mr. Smith's porch in 1965 and discussed the problem with him. I discussed it a number of times after that date with him. It was not until about a year ago -- I don't recall the dates, that we first learned that these people were willing to pay an assessment. Prior to that time they wanted the City to put the streets in because they had problems and, 886 to 478 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA to the best of my recollection, they never indicated that they wanted to pay or would be willing to pay any portion of it. My position was that it was a hard surface paved street at the time and we had much greater needs in other areas and our responsibility is an awesome responsibility, when you try to establish priorities, and, in my opinion, the Lincoln Street project was not a high priority item, but when the people decided that they wanted to have a part in it and pay the assessment, then the City Commission moved ahead with the improvement program and it is under construc- tion right now. THE COURT: What is the distinction about when the City pays for it? I assume when you say certain high priority areas where you do paved work without assessment, what makes the determination where you pave without assessment and where you don't? A We don't assess, your Honor, on major streets. Take Airport Boulevard, for instance, that is a major street. Normally we try to get some federal or state and county participation in a project such as this. On all residential streets that we improve, whether it be low cost or regular curb and gutters and underground drainage, we do it on an assessment basis. Sry 479 FEDERAL STENOGRAPHIC REPORTERS P.O.: BOX: 1971 MOBILE, ALABAMA - mm ree _— — ee ee —————— —— ——— nea rma ————— THE COURT: Are all the streets in the area -- is Lincoln Street a residential section? A Yes, sir. And as I said, it was not until they agreed to the assessment program -- let me explain the assessment program. We could go out and say we are going to assess part of this project to the property owners. We assess one-sixth of the cost of the project to the property owner. So, it still costs, out of the treasury of the City of Mobile, many thousands of dollars on most any kind of project, because one- sixth on each side of the street would be actually one-third. If a project costs ninety thousand dollars, sixty thousand comes right out of the treasury where thirty thousand comes out on either side of the street. Q What is your policy with reference to the construction of sidewalks? A number of black witnesses have complained because they don't have sidewalks. A Well, it has been our policy to install sidewalks in any area where the people petition the City Commission for sidewalks, because we assess the cost of that improvement against the property. Our policy on new subdivisions is that t hey install the sidewalks. So, if a new subdivision goes in, satis we accept the subdivision, the developer places the sidewalks on the property. n 24 25 480 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA over the two-thirds or three-fourths of the people in the community to please the one-fourth or one-third. Our normal way of handling it is for a community, the number of people -- ever how mamy to request the sidewalks and then we would try to initiate the program and have the hearing and move on with it. MR. ARENDALL: That probably is clear, but you would not, for example, assess for repaving Government Street, would you? A No resurfacing programs are not done on an assessment basis. That is a maintenance problem. We spend about two hundred and fifty to three hundred thousand dollars a year on resurfacing. Right now we have many hundreds of miles of streets that need to be resurfaced and in the not too distant future I will be coming to the Commissioners on my knees with hat in hand, so to speak, to keep our streets in good repair. That comes right out of the general fund of the City and as a maintenance expenditure. We don't assess for resurfacing. Q Do you believe, Mr. Mims, that under your administra- tion that the black communities have been treated fairly with reference to drainage, paving, sidewalks and -- well, those matters? 893 l FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 894 2 JA I most certainly do. I don't think I have ever -- in 3 |/fact, I will be emphatic and say I have never denied any 4 |lcitizen a service that he expects with his tax money because of 5 |la certain color or social standing. 6 11Q Now, there has been some testimony here about weeds J and underbrush on large tracts, specifically about some 8 |property belonging to Mr. Meaher and located in the Plateau 9 |larea. 10 What is the policy of the City with reference to large 11 tracts? 12 {iA We have a state law and I am not familiar with the 13 |number and what not, but I know it is a state law that deals 14 |lwith noxious weeds. This law allows us to post a lot and cut 15 ||lit if the property owner does not cut it and assess it against 16 |his property. Our policy on large tracts of land, if we get 17 ||la complaint from Mrs. Jones, who lives next door to this 18 large tract of land, our policy is to go out and post a 19 || fifty foot strip around this ten acre tract or whatever it oo |might be, and give the property owner who lives next door to 21 this tract at least a clearing between them and the underbrush 90 |land the wooded area, so to speak. Now, normally this is sufficient and most people are 04 ||lappreciative of the fact that they can get this strip cut next 25 |{to their property. 482 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 201 ro A Well, not officially. We had people doing a lot of A No, but on occasion Dr. Tunstill has been present with these other people to give me advisement. THE COURT: If I understand you correctly, you haven't formalized your campaign into committees? things in every campaign I have ever been in. When I ran for the United States Senate, Dr. Tunstill was a part of it and he was right there, but in these City races we welcome help from anyone of any color or any standing. THE COURT: Go ahead. MR. BLACKSHER: I didn't really understand your answer to the Judge's question, but I will move on to the next one. Did you regularly, in all of your campaigns, have a campaign headquarters that was staffed by people during whatever hours you kept? A Yes, we have. Q Tell me the names of the black people who have staffed your campaign headquarters? A We did not have black people in the campaign head- quarters. My brother is my campaign chairman and he is very particular about who seés our list of supporters and people 483 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA taps tibi————lt a aeties 202 who are helping us. He runs the campaign and I try to run the office after I get elected. 1 Q Jeff Mims is your brother? 5 A This is correct. 6 Q And he is chairman of the County Democratic Executive 7 || Committee? 8. 1a This is correct. 2:10 Now, about all of these boards and committees, 10 Mr. Mims, would the Clerk please show the witness Plaintiff's 11 || Exhibit number 64. 12 How many of these -- can you point out the boards 13 and committees on this list which, I presume, is comprehensive, 14 to your knowledge, right, and contains all the boards and 15 committees that the city has any appointing power to? 16 A So far as I know, yes. 17 Q How many of them, to your knowledge, are set up under 18 State law as opposed to being established by city ordinance? 19 A I could not answer that. 20 Q What about the board of water and sewer commissioners? 21 That is established under State law, isn't it? 22 A It is my understanding that it is. 23 Q Do you have any idea of how many of these or which of 24 these boards and committees are subject to the control of the 25 City Commission to the extent that the City Commission can 5 484 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 903 ($ 2) ~] 24 25 change the ground rules about what it is suppose to do, who it's members are and so forth? A No, I don't. As far as I know, the water and sewer board, for instance, is charged with the responsibility for providing sanitary sewers, water service for the City of Mobile and I don't have anyone who would want to change that. THE COURT: According to my notes only two were established by State law, the boards, the South Alabama Regional Planning Commission, I assume, was established by either the State or some federal regulation, and that is the only ones that I have that indicate, besides the City establishing them -- well, is that true, the board of adjustment, the board of water and sewer commissioners, and the South Alabama Regional Planning Commission? A Well, I think you would find the Housing Board would be -- has to be a State act that would allow a housing authority. THE COURT: Just one minute. What number is that? MR. ARENDALL: If I may, we have not researched this and I am really not sure. I believe all of these boards that will relate to licensing people are probably under some state law which 485 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA board personally? A Yes, I have. Q How many? A Well, I regret to say that I think I have one appointment in all the years. It has worked around where I have one man on there, Mr. Dennis Moore. I have been in office eleven years and Mr. Moore is my one and only appointment. There was some mix-up, if I might add, because of some people dying and some particular person appointed them and they felt that they should replace that person or fill tha vacancy. Many of these people I have known and certainly have concurred in their appointment. The late Bishop Phillips was a very close friend of mine and served ably on the water and sewer commission for t 904 says that the various municipalities shall do such and such in order to issue licenses for contractors and electricians and plumbers and so on. We have not researched and I cannot make that statement. THE COURT: All right. | MR. BLACKSHER: Well, concerning the board of water and sewer commissioners, Mr. Mims, have you made any appointments to that FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 905 a number of years and some of the other people I know quite well and have utmost confidence in them. So, I am not complaining because I can't, you know, appoint but one person, But Mr. Moore I appointed a number of years ago and he has been reappointed at least once since then or maybe twice. Q Mr. Moore is white, isn't he? A Yes, he is. Q I thought we established that Milton Jones is currently a member? A Yes. He is and Mr. Jones is black. Q And you were saying that Bishop Phillips was also? A He was on there prior to Mr. Jones. Bishop Phillips was black. THE COURT: This shows no prior black members. Can you account for that? A I did not prepare this. Reverand Bishop Phillips known by everybody around Mobile, was on there for a long time. MR. ARENDALL: Judge, we had this prepared by Irene -- no, Mr. Menefee prepared this. We gave some basic information to Mr. Menefee, THE COURT: Counsel for Plaintiff? 487 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 2 || MR. ARENDALL: Yes. Mr. Menefee prepared this and I will be frank 4 to say that I didn't check it. 5 THE COURT: 6 All right. I am going to put one in parenthesis by 7 that, prior black members. 8 Do you know whether or not you gave the information 9 that Mr. Phillips previously served on that board? 10 MR. BLACKSHER: 11 | Bishop Phillips and Mr. Menefee informs me that 12 Mrs. Quinn identified the persons on this list who were 13 black and failed to identify Bishop Phillips. 14 THE COURT: 15 All right. 16 MR. BLACKSHER: 17 So there are actually two out of the twelve people 18 that have been on that board that have been black? 19 A I don't have that information before me. 20 0 I believe you testified, Mr. Mims, that you had some 21 difficulty finding citizens to serve on these various boards. 22 Have you had difficulty finding people to serve on 23 these boards? 24 A On the water and sewer board? 488 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA fe hm 907 1 a. A Well, as I indicated a moment ago, I have only made 3 one appointment that I could point to and that is Mr. Moore. 4 Q Did you have any difficulty locating someone? 5 A No. I did not, because I appointed Mr. Moore and I 6 have not had an opportunity to appoint anyone else since. 7 Q You have given us an example of how Mr. Gary Cooper 8 walked into your office one day and said that he wanted to 9 participate and I believe you said that you had never seen 10 him before and that provided you an opportunity to appoint 11 him to some board. 12 A To the audiotorium board. 13 Q Isn't that a general problem you have in finding 14 qualified black persons to serve on these boards is that 15 you just don't know that many black persons personally, like 16 you do the white people that live in your immediate 17 community? 18 A I know a lot of black people, personally. I speak 19 in black churches. I go to black meetings. I know a lot 20 of black people. 21 You have to have people that express interest. My 929 door is open to people. I have a meet the mayor day every 23 Wednesday and I have people coming and going, blacks and 24 whites and unless people express an interest in serving their os community on a specific Beads or in a specific area then it is 489 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 908 24 25 not my policy to go out and pick people, you know, and put them on a board unless I know they want to serve and unless I know they have some interest in a particular area. Q Are you saying that you have never appointed anyone to a board at your own initiative or at your own invitation, but have only responded to requests that were made in the first instance by other people? A I have requested certain black leaders to provide me black lists of black people that would be willing to serve on boards. I know a lot of black people, but to have them say I want to serve or I will be willing to give so many hours a month, a very few of them have done this. I am going to be frank with you about that. Q Who are the hlack leaders you requested to provide a list? A Various people, ministers and various leaders in the community. Q Name one. A Well, the Bishop that I just mentioned awhile ago has provided some names over the years. Q Bishop Phillips? A Yes. Q Who else? A Reverand Tunstill, and Mr. LeFlore use to provide 490 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA | 909 No some names. ill g Mr. LeFlore? 4 | A And others. 5 | And others? Others that you can't recall, now? 6 in No. I can recall. I just mentioned Dr. Carroll. i | In fact, of the business, I helped to get Dr. Carroll appointed 8 | to a state position. 9 1,0 Have all of these people provided you with a list that 10 you requested? 11 A They would give me a name now and then. I doubt very 12 seriously if anybody has given me a list of names. I rely on 13 black people I know to tell me if a certain person wants to 14 | serve or will serve or is qualified to serve. I don't think because a person is black or white makes him necessarily qualified to serve in a given area. Q You have requested, you say, a list of names, but 18 || whenever you have had a chance to want to approach the black 19 | community you have gone to one of these black leaders that 20 you knew and ask them for a name, is that what you are saying’ 21 A Well, yes. 22 q So, what kind of occasions would prompt you to say | 03 ||well it is time for me to consider a black person for this 24 board and I will see one of my friends, who is a black leader, and ask him for a name. 491 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA a n no (@ ]] | A What kind of an occasion? 1 Q What time would you do that? Everytime you had an appointment would you request the name of qualified blacks | that you would consider along with other people or just | certain occasions when this would come up? A Well, on some of these boards, as it has already | been indicated, you have to have engineers and architects and | things like this and you get these recommendations from these various boards and committees and groups. They send in these ' recommendations. On others, like the audiotorium board, if there is an | opening coming up and it is important to me to make the | appointment, then I will look over the list of people that I have confidence in and I might call. | Q You have a list that you keep at your desk of people | that you have confidence in? A I have friends that I have confidence in and I have friends that I don't consult for advice and then I have a lot of acquaintances and I am sure that every individual, whether he is in politics or not, has close associates, friends and acquaintances. So, if I were looking for a person to put on a board this afternoon I would call somebody that knew people out in that community, both black and white. Q Out in which community? 492 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 911 ro ~ A In whatever community I was trying to find or whateve area I was trying to find an appointment in. Q Well, I guess that is what we are trying to get at is to figure out how you zero in on a community when you find out there is a need for an appointment? A Well, if one of my appointments on the audiotorium board were to resign this afternoon and it was determined that this person was my appointment and -- incidentally, I appointed the first black to that board and appointed the first woman and the first woman black I appointed to that board and so if that opeming were to come about this afternoon, then I would start researching within my own mind who I could fill that vacancy with and it might be that I would call a white person or it might be that I call a black person and ask for a recommendation, someone that was qualified to serve and someone in whom I had great confidence. I have not made it a great practice calling up these people after they got appointed to a board and pull strings and treat them as a puppet. That is not my policy. I appoint people I have confidence in and on occasions some of them have disappointed me. Q You said that there are a number of committees where you must select persons nominated by boards of architects or J 493 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA engineers and what else did you mention? A Well, some of these you have to have someone familiar with air conditioning, for instance, and air conditioning professional groups. I don't even remember what they are call, but they make these recommendations. I can't help it, because they don't have a black air conditioning engineer that | they recommend to us. Q Let's get something straight. You are not saying that there are no qualified black engineers or air conditioning people or whatever; you are not saying that? A I am saying that I have tried to find a black civil Engineer for eleven years and I don't have one yet on my staff] 0 There are no black civil engineers in Mobile? A I have not been able to locate them. ND Okay. Where do you look when you are looking for a black civil engineer? A I have been told a number of engineers, including the engineering school at South Alabama. TI have talked to people in other parts of the country who are in the public works field and I have talked to the commissioner of public works in Atlanta, who is a black man, and who is a civil engineer and he confesses he can't find black civil engineers and I have let the personnel board know that I would like to have a black engineer on my staff. 494 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA an 312 2 We go into every area of the City and deal with all of 3 the people and I would like to have a black representative on 4 my staff, but I have not been able to locate a black civil 5 lengineer. 6 ID Does that hold true also for architects? TA The only black architect I know is Mr. Jones, who is 8 on the water and sewer board. | 9 Ip Do you know of any black architects employed with the 10 Corp of Engineers? 11 A I think that is the problem, the federal government 12 Fakes them all. 13 0 Just because he was employed at the Corp of Engineers 14 in. stop you from appointing him to the water and sewer 15 |board? 16 IA No. You miss the point. 7 in I am sorry, give it to me again. 18 A I am talking about as a staff person, now. I have 19 [looked for a“,........ 20 |THE COURT: 21 You mean a full time employee? 2 |A Yes, your Honor. I have looked for a black civil 23 lengineer to put on the staff full time with the City of Mobile o4 |and I have not been able to locate one. 25 MR . BLACKSHER . 495 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 914 We were talking about boards and committees. A Well, if I can't find one to hire, I certainly don't know if I could find one to appoint to a board. Q Well, you find an architect that you couldn't hire that you probably could have appoint to a board. A He is the only black architect that I know and I am not trying to be smart. He is serving on our water and sewer board and he works for the Corp of Engineers and I imagine makes more money than he could working for us. Q If I told you there were two other black architects working for the Corp of Engineers alone, would that surprise | | you? A No. It wouldn't surprise me. I just don't know these gentlemen. Q This Mobile Transit Authority you said was recently ~ odualintshen and that is not on the disci ds it? A No. I don't think so, because it is fairly new. Q How many members are on the authority and how many of them are black? A Well, I have two appointments and I think the other two commissioners have two appointments and one of mine is white and one of them is black. Q I am sorry, run that by me again. THE COURT: ~] ao 496 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 915 What is the total number? A Six, your Honor. Each commissioner has appointed two. THE COURT: How many total blacks? A One. THE COURT: | | That was your appointment? A Yes. MR. BLACKSHER: Who was that black person you appointed, Mr. Mims? A Marshall Robinson. berdentage of the patrons of the transit system. I mean, did that occur to the commissioners when they were appointing? A Sir, I can only speak to myself. I put one black and one white out of the two. I don't know what else I could have done. Q I think we have talked about this the last time we appeared in the Court together. One of the facets of the City Commission is that you are only responsible for you and not responsible for the others? A I am responsible to the people of Mobile and I think I have met those responsibilities quite well. 0 And yet the black citizens of Mobile are the overwhelm} 497 | FEDERAL STENOGRAPHIC REPORTERS | P.O. BOX 1971 | MOBILE, ALABAMA 916 [o 0 By the way, concerning the transit authority, is it a fact that there are just aren't any bus routes that go north and south between the north end of town and the south end of to go down to the foot of Royal Street and transfer there and go all the way back out again in one direction or the other? A Well, the City of Mobile is so laid out to the core, that the central core is by the river and, over the years, the routes have all been designed to come into the central core. Now, studies have been made by the new operators of the system and we have a professional operator who is helping the authority. They have some new route configurations fevizned’ As far as them going right straight down from Prichard to Navco, I doubt very seriously if that will ever be; In this business I have found we have more expert traffic engineers and more expert civil engineers and more experts than you can shake a stick at and everybody says why don't we have a bus to run from Trinity Gardens to Navco interchange. That doesn't mean that people are going to ride just because somebody thinks that ought to be. This is like testimony riven here earlier today that a traffic light ought to be at their corner, but it doesn't mean it is necessarily justi- fied. Q Who was that that said everybody wanted a traffic town, you know, through Government Street? Don't they all have ge ) On J 498 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 917 light at their corner? A I think it was brought out earlier in the testimony, I think Mr. Doyle said so. 0 Mr. Doyle wanted it? A No. He didn't say he wanted one. 0 Okay. We have this board of adjustment, number one, looks like it is -- we have one black out of a history of sixteen total members. Do you know any reason why there were not any more blacks than that appointed to this particular board? Is it a question of availability of some particular skill; or something of that sort? A I do not know the answer to that question. I do know the board of adjustments membership on that is not an easy role, because these people, whether black or white, come under bo awful lot of pressure when you have a hundred people in the chambers and fifty-four something and fifty against it. 0 What has that got to do with my question? A Well, it has a lot to do with the question. Getting somebody that wants to take that pressure and strain and listen to all of that static and any member of the press can tell you what goes on in a board of adjustment meeting. 0 Are you inferring that there have been black people unwilling to take that pressure? 3 499 FEDERAL STENOGRAPHIC REPORTERS | | | P.O. BOX 1971 | MOBILE, ALABAMA | 918 2. [A No. I didn't infer black or white. A lot of people 3 |wouldn't take that pressure. 4 ||0 You are not saying that there are not qualified black 5 |lcitizens in Mobile who were able to serve on the board of 6 |ladjustments? 2 A No. We have one on there. 8 0 Is he the only qualified person? 9 A I did not say that. I have not implied that there were 10 abe qualified blacks. 11 10 What about this air conditioning board? This is the 12 (board that screens applicants for licenses for people who want 13 |to do air conditioning work? 14 A As I understand it, yes. 15 Q As a matter of fact, there is a lot of air conditioning 16 redhante type courses in the local trade schools, isn't there? 17 |A So far as I know. 18 0 Southwest Technical State, Carver State, I think both 19 |have courses, don't they? 20 A I am not familiar with that. 21 Q You are not saying that there are no black persons in 99 this community who are qualified to serve on that board, are 93 you? 94 A No. But we have not received recommendations from 55 these various agencies that make the recommendations. | I | | | 500 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 219 (W ] 24 25 Q The air conditioning contractors? A When those recommendations come up to us, we don't know whether they are black or white. They recommend Mr. Jone Mr. Smith or whoever. Q And it is these private agencies that control on who serves on the board? A They make their recommendations to the city commission and we appoint them. Q You are powerless not to appoint their recommendations is that correct? A | I think these requirements are specified in the ordinance of the state's statute and these people are rightful making these recommendations to us. MR. BLACKSHER: I believe, your Honor, we could have this document marked, but the information was turned over to us from the City indicates that the air conditioning board is established by a city ordinance. Do you want to stipulate to that? MR. ARENDALL: Whatever it shows, Jim. I have really done no research on these things. MR. BLACKSHER: In fact, the air conditioning board ordinance says it shall be composed of five members appointed by the City 501 FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA 920 BO Commission. It shall consist of the following members; one air conditioning refrigeration mechanic, one business principa of a registered air conditioning and heating firm; one principal of a registered air conditioning and heating firm that is primarily engaged in installing heating and air conditioning systems and residences and one independent practicing mechanical engineer, a registered engineer in the State of Alabama, and one representative of the public. So, it appears that no one makes recommendations to that board. Does that come as a surprise to you? A No, it doesn't come as a surprise. We have forty-six different boards and commissions here and I think it would be impossible for me to be familiar with every ordinance and state statute. I can say emphatically that no black person has ever come to me and said, '"Mr. Mims, we would like some representation on the air conditioning advisory board." I hav had no complaints in the eleven years that I have been in office. Q Have white persons come to you and requested representation on the air conditioning board? A No. Q Now, this Mobile Bicentennial committee. Is there any reason why there are three out of forty-six members that are black? Are there any qualifications that you felt ruled out | 502 | FEDERAL STENOGRAPHIC REPORTERS P.O. BOX 1971 MOBILE, ALABAMA no any black citizens in substantial numbers to that board? 344A We appointed some blacks to this, ever how many to 4 |begin with, and then this committee kind of grew on us, 5 ||because a number of people expressed interest in the 6 |[bicentennial celebration and, as a civic club, well, they 7 |would say you ought to put Mr. Jones on here. He is, you 8 |know, involved with the ROTC, or whatever, and he ought to be 9 |on the bicentennial committee and the City Commission kept 10 [adding and adding and we wound up with whatever it says here, 11 |[forty-six members, but go back and research the records at 12 |[City Hall and you will find out that we started off with 13 |about twelve members, three of which were black, and it grew 14 |and grew and grew and that is the only explanation I can | 15 |eive you. 16 8 The explanation, as I understand it, being they just 17 Lianted black groups like white groups expressed interest in 18 |joining the committee, is that what you are saying? 19 A Well, yes, and also the blacks have not expressed 90 @S much interest, as I would like to have seen them express, 9; [kn our Independence Day celebration. Every year out of thirty-five thousand at Ladd Stadium I doubt seriously if we 22 " had seven hundred blacks and it was a free program for all the oy itizens of Mobile and we have encouraged everyone to come 95 and enjoy this program. yo