*1 authorization the District public Courts do not safety, interest in an interest that for to wait for underlying proceed- the time being outweighs the incremental ings to Instead, run their course. benefit to interstate commerce. Federal Courts can intervene to preserve By agreement of parties, the tempo- quo status prevent the infringe- rary restraining order will remain in effect ment of rights substantial might at least until April when this mat- otherwise be sacrificed. ter will hearing. come on for Hirsch, McCormick v. 460 F.Supp. ORDERED, SO 11 day April, 1983. 1345 n. 29 (M.D.Pa.1977) (and cases cited therein).
The Court is aware that the exceptions to
the exhaustion finality doctrines which equitable
allow intervention administra-
tive proceedings are narrow and the Court
does not lightly intervene in this action. conclusion, Court cannot escape the BURTON, etc., William L. et however, designations al., Plaintiffs, clearly statutory exceeded as authority well as proc- administrative addition, ess. In the Court’s action will not HOBBIE, Jr., etc., Walker et substantially interfere with or delay the al., Defendants, agency’s goals; ongoing final rulemaking Graddick, Attorney Charles A. proceedings, in which state authorities are Alabama, for the State of to have meaningful input, are unaffected Defendant-Intervenor. by the Court’s Order. Nor will the needs of interstate commerce substantially im- Civ. A. No. 81-617-N. paired interim; in the oversized trucks may United States District travel on interstate and other qualifying Alabama, M.D. N.D. highways throughout Georgia. April
From said, all that has been the Court finds that Plaintiffs have satisfied the re
quirements for a temporary restraining or
der. See Southern Monorail Co. v. Robbins Myers, Inc.,
& (5th 666 F.2d Cir.
1982). First, introduction of oversized
trucks on non-qualifying highways without
any inquiry capacity into the of the high
ways safely accommodate the trucks po significant
ses a risk to traffic safety so as
to constitute the necessary showing of supra. Moreover,
harm. See note 1 allow
ing operate the trucks to point at this
put the Georgia State of to the impossible
choice of tolerating the risk or ignoring the
FHWA mandate and risking injunctive ac and,
tion perhaps, other liability.
Second, clear, as should now be the Court
finds a substantial likelihood that Plaintiffs
would be successful the merits in their
challenge to the agency action. Finally, a
temporary stay of the order will serve the
1030
sponsibility for this intervention must through rest with those who their inepti- public tude and disservice have forced it. Id. at 337-38. Enactment of Act No. 83- marks the first time in Alabama’s histo- .154 ry Legislature provided that its has ap- portionment plan that is fair to all the people of Alabama.
I. twenty years passed More than Frink, F.Supp. (M.D. since v. Sims Ala.1962), Sims, Reynolds aff’d sub nom. v. 377 U.S. 84 S.Ct. Larry James U. Blacksher and T. Mene- (1964), wherein this was forced to Court
fee, Blacksher,
Stein, Mobile,
Menefee &
responsibility
legislative reap-
assume
for
Ala.,
Seay, Gray, Seay
Solomon
Lang-
&
portionment
Regardless
in Alabama.
of the
ford,
Ala.,
Montgomery,
and W. Edward
fact
the Constitution of Alabama re-
Still,
Still, Birmingham, Ala.,
Reeves &
for
quired
Legislature
reapportion
in ac-
plaintiffs.
cordance with the latest available federal
census,1 the Alabama
had not at
Legislature
Graddick,
Gen.,
Charles A.
Atty.
that time reapportioned
sixty
itself in over
Ala.,
Ala.,
Montgomery,
Thomas W. Tha-
years. This
afforded the malappor-
Court
gard, Jr.,
Smith,
Boyd,
and David R.
Bow-
Legislature ample opportunity
tioned
to re-
man, Thagard,
Culpepper,
Crook &
Mont-
apportion itself in accordance with the Ala-
Ala.,
Hale,
gomery,
Mobile, Ala.,
and Lee L.
bama and Federal
But the
Constitutions.2
intervening
defendant Hobbie and
de-
Legislature
do
Despite
failed to
so.
this
fendant.
failure,
enjoin
refused to
the 1962
Graddick,
Gen.,
Atty.
Charles A.
and Lin-
legislators.
election of Alabama
It reluc-
Breland,
Gen.,
Atty.
da C.
Asst.
State of
tantly
partial
provisional reap-
ordered
and
Ala.,
Ala.,
Montgomery,
for defendant Sie-
portionment
Legislature, hoping
of the
gelman.
Legislature
thereby
be enabled to
provide
reapportionment;
for a true
direct-
JOHNSON,
Before
Judge,
Circuit
and
Legislature
ed the
to enact a constitutional-
THOMPSON,
and
District Judges.
HOBBS
ly
for the 1966
reapportionment plan
valid
JOHNSON,
Judge:
Circuit
elections;
jurisdiction
and retained
of the
Frink,
case.
F.Supp.
Sims
day may
have now arrived to which
441-42.
When
Court affirmed
Judge
the late
Richard T. Rives referred
Sims,
these
Reynolds
actions
expressing
when
his feelings and the feel-
L.Ed.2d
ings
Duncan,
of many of us in Dent v.
proceedings
remanded the case for further
(5th Cir.1966):
F.2d 333
specifically required
further
action
day
I look forward to the
when the State
reapportioned
Legisla-
should the
political
and its
again
subdivisions will
valid, permanent appor-
ture fail to enact a
up
take
their mantle of responsibility,
tionment
in time for the 1966 elections.
treating all of their citizens equally, Id. at
thereby relieve the federal Government
necessity
intervening
in their
1965 it was clear that
By July of
arrives,
day
reapportion
affairs. Until that
the re-
had
failed to
IX,
Frink,
(M.D.Ala.
art.
1. Ala. Const.
2. See Sims v.
§§
1962).
itself, so
further action
Court be wherein the
requested state-wide
necessary. Recognizing
reapportionment
came
legisla
elections,
and mid-term
is-
suing an order that
required
tive
is primarily a matter
defendants to
why
show cause
the Legislature
consideration
was not
and determina
under a mandatory
duty
constitutional
tion,
Sims
ordered the
itself, and,
reapportion
if the
proposals
file their
judicial remedy
for a
*3
should fail to perform its duty, why the
designed to eliminate the invidious discrimi
Court would not then be under a duty to
nation
existing
both houses of the Legis
reapportion the Legislature constitutionally.
lature.
Legislature
The
then convened in
Amos,
v.
Sims
336 F.Supp.
931-32
special session and
reappor
enacted bills to
(M.D.Ala.), aff’d,
93 S.Ct.
tion both houses. The Court carefully scru
(1972). Nevertheless,
tinized those Acts and considered their va
1971 General Session of the Alabama Legis-
lidity
respect
with
to the State and Federal
adjourned
lature
producing
without
a valid
requirements
(1)
Constitutional
that:
ap
reapportionment plan.
8, 1971,
On October
portionment
on a population
basis so
the Court notified the Legislature that
it
that one man’s vote is worth as much as
2,1971,
had until December
plan.
to enact a
another’s;
(2) county lines be respected
A special
convened,
session was
but
(3)
possible;
apportionment
wherever
once
to discharge
failed
purpose
not be for the
of racial discriminat
duty.
its
Baggett,
96, 105
ion.3
v.
247 F.Supp.
Sims
plaintiffs
Both the
and the defendants in
(M.D.Ala.1965). It adopted the multi-mem
proffered
v. Amos
plans
Sims
for court-or-
plan
Legisla
ber district senatorial
of the
dered reapportionment.4 The defendants
but,
ture
finding
Legislature’s
requested
also
additional time for the Leg-
blacks,
against
House
discriminated
itself,
reapportion
islature to
but the Court
provided
an alternative
of multi-mem
request
refused this
three reasons.
districts,
ber
jurisdic
House
and retained
First, the state had been allowed more than
tion, ordering that:
adequate
given
time and had been
every
apportionment
.. .the
of the Alabama
opportunity
perform
duty.
reasonable
Legislature as herein ordered remain in Second, implementation
reapportion-
of a
change,
effect without
except by order of ment plan for the 1974 elections had to
until the
begin as soon as
it
possible because would
reapportions
State
it-
time-consuming
involve
administrative
self ... after the next decennial census to
Third,
tasks.
the Court
wished
allow
be conducted in 1970....
adequate period
appeal.
for an effective
After
completion
Amos,
1970 census the
supra,
F.Supp.
at 940.
Sims
Sims Court consolidated three class actions After
carefully considering
plans prof-
Equal
Bag
Protection
of the United
to the United States Constitution.
Sims v.
Clause
“requires
gett, supra,
States
F.Supp.
Constitution
that a State make
good
an honest and
districts,
faith effort
to construct
legislature,
in both houses of its
as
prayer
4. Plaintiffs’
for relief was amended
nearly
equal population
practicable.”
as is
request
single-member
include a
for state-wide
Sims,
Reynolds
377 U.S. at
Johnson,
legislative districts.
In Connor v.
IX, §
S.Ct. at 1389. Article
200 of the Alabama
1760, 1762,
29 L.Ed.2d
(1901)
splitting any county
Constitution
forbids
(1971)
stated that
between
two or more
districts.
ap-
forced to fashion
“when district courts are
application
When
of Section 200 causes an un-
plans, single-member
portionment
districts are
avoidable conflict with the
preferable
large
districts as a
multi-member
equal protection,
yield to
federal
it must
general
especially
matter.”
true in
This is
requirements,
constitutional
but
instances
history
long
states like Alabama which have a
proviso
applied
where the state
can be
without
discrimination,
racial
because multi-member
operative. Reynolds, supra,
conflict it remains
may
voting
districts
be used to dilute black
Any abridge-
arguing they lacked sufficient time to plaintiffs’ B, study Plan can question There be no that necessity impact General had found no unfavorable motivating was the factor behind the June sixty-seven on black coun- sixty voters 21 decision. The 1982 ties, legislative plan and that the was enti- elections could not have proceeded without request tled deference. At the Court’s reapportionment plan.9 Act No. parties provided suggested modifica- preeleared 82-629 had not been under Sec- tions Act No. 82-629 to meet Attor- tion Voting Rights 5 of the so it was ney expressed pre- General’s concerns that legally unenforceable. Because of severe dominantly black communities would be time imposed constraints the election fragmented in the seven districts which had was compelled deadlines to choose yet been precleared. two plans.10 Recogniz- between defective ing once reapportionment pri- is guidelines for Court’s deci- marily a matter for sion, consideration 21,1982, rendered on June large- were determination, Court ordered ly by Upham Seamon, framed implementation, basis, on an interim Act respect 82-629 as modified with wherein that: stated House Districts 36 and 44 in Jefferson Whenever a district court is faced with Hobbie, County.11 Burton entering an interim or- F.Supp. at der that go will allow elections for- *5 it ward is faced with the problem of acknowledged by parties, As the the “reconciling the the of Con- Court’s of re- accompanying order June 21 stitution with the goals political state quired legislative valid, a election under a policy.” Finch, Connor v. [431 407] permanent plan no than the fall of later at 414 S.Ct. 1828 at 52 L.Ed.2d [97 1983. if Attorney This meant that the Gen- (1977)]. 465 An appropriate reconcilia- eral to preclear failed Act No. or if tion of these two goals only can the uphold Court were to the subsequently reached if the district court’s modifica- plaintiffs’ the objections constitutional to of a tions state are to those limited Act, 1982 legislative the elections would be necessary cure any to constitutional or one-year for a August term office. On statutory defect. Attorney the General the United .of formally objected States to Act No. 82-629 U.S. at at 1522. The pursuant Rights Voting to Section 5 of the Upham Court also acknowledged that Act, rendering Act “necessity legally where has unenforcea- motivating been factor,” legislative reapportionment plan ble as district courts have been authorized a permit making clear,to all pursuant very elections to be held it those con- apportionment plans do all a that not in re- cerned that the 1982 elections were for spects up legal year only.12 measure and even consti- term of one 9. All that, parties agreed split, because of substantial would be but also reduced number shifts, population the current “safe” black districts —districts with a black by majority population sixty-five per Alabama fashioned Sims v. at least complied longer Equal ripple Amos Court no with the cent. Plaintiffs modifications had a ef- twenty-six Protection Clause of the United States Consti- fect in counties outside the Black Hobbie, supra, F.Supp. Attorney tution. Burton v. at Belt had found no where General impact on 239. unfavorable adopted plaintiffs’ black voters. The Court of House Dis- modification 10. Hobbie, supra, F.Supp. County, making See Burton v. at trict 36 Jefferson Districts (Johnson, concurring). compact. 241-42 J. 36 and 44 more 11. Modifications 12. The Court suggested parties June 21 its decision indicated that, pro- unprecleared six Belt” if the failed the unsatisfactory. “Black districts were valid, precleared redistricting plan in vide Defendants’ modifications re- a elections, formulate duced number of Black Belt which time for 1983 fall it would counties from of the class to the objections members
III. also re- parties settlement. The proposed passed by was the Ala- Act No. 83-154 quest modify the Court its earlier or- February bama would be sub- der that all seats precleared Attorney United States opinion ject to election this fall. It is our 28, 1983, and filed February General on hearing will suggested notice and with this on March 1983. On the extent necessary not be because to submitted to this March 14 the agrees “settlement” to eliminate proposed joint approval motion for of a set- will elections this fall this Court proposed tlement of this action. The settle- approve proposed settlement. following: ment is based on the ease, (House Act 83-154 Bill Under the circumstances of 1. No. Second Session) precleared by has been and within this Special eminently appropriate was the United as an power Court’s to use Act No. 82-629 Voting under 5 of the require special Section and to elections Rights 1973c. U.S.C.A. the fall said Act fail to § should pass subsequent con- preelearance obtain parties agree 2. The that said Act meets Clements, scrutiny. stitutional Terrazas v. applicable state and federal constitutional 514, 537-40, (N.D.Tex.1982) F.Supp. reapportion- criteria for a state-enacted Amos, court); su- plan. (three-judge ment see Sims (and cases cited pra, advanced the claim decade, therein). the third consecutive For (the that Act No. 82-629 basis of the 1982 Legislature abrogated duty the Alabama elections) violated State and Federal own, valid, failed, adopt on its Act Voting Rights Constitutions and reapportionment plan. As of enforceable The plaintiffs agree these June with election deadlines two statutory and constitutional defects have Act 82-629 had not been away, weeks been corrected Act No. 83-154 and precleared and was devoid of effect. compromised with the defendants by agreeing proceed that elections could on schedule any withdraw claim for So of the elector- except complete elections in the limited without frustration area *6 Sims, necessary remedy statutory process, Reynolds viola- al see 377 1393, tion of the 1965 Voting Rights at at we ordered the U.S. S.Ct. wit, the western Black Belt area in which the Act. In implementation of objected the Justice Department fashioning remedy every to Act made possible 82-629. The have to avoid of state preemption filed effort functions, with the their suggested plans legislative Lipscomb, Wise v. see 2493, 2496, 1983 elections in the western Black Belt. U.S. S.Ct. The defendants oppose (1978) (plurality), yet 1983 elections for L.Ed.2d 411 any legislative districts. managed provide remedy same time it a encourage dilatory that will not tactics parties agree that a special legis- extending stay of incumbents their lative election in extremely 1983would be Sanchez, office. McDaniel v. See expensive for the of Alabama and State 2238 n. n. its counties. fall L.Ed.2d 724 Elimination of To ensure that the interests of the entire efficacy elections would undermine the of plaintiff class of black Alabama citizens are this Court’s remedial order. adequately protected, the parties suggest that notice of the proposed given settlement be notice was unequivocal Clear and given to the class and that this Court a pub- hold members of the and the hearing during which it would consider all lic that the 1982 elections were for a one- permanent plan. August approved plan by a court-ordered On March
27, 1982, the defendants were ordered to file an
legislators
genuine legislative
term.
therefore
year
maintaining
Incumbent
concern for
right
no
complain
economic,
have
moral
of
integrity
political
various
being
that
their terms are
foreshortened.
It
represents
racial communities.
also
Moreover,
grossly
it would be
unfair for
a
effort to
concerted
minimize
number
this Court
of
extend
terms
between
contests
incumbents.15 And
present
may
there
well
incumbents when
be
though Act No. 83-154 is
to plain-
similar
not
individuals who decided
to run
B,
tiffs’
previously
Plan
which had been
greatest harm,
for a
term. The
one-year
submitted to this
we
find
it has
however, would befall the
citizens
Ala-
been sufficiently
satisfy
modified to
our
bama, who
forced to endure three
as to its racial neutrality.
concerns
Under
years
representation by
additional
a mal-
plaintiffs’
B,
Plan
33 of 92 white house
apportioned Legislature.
and 18 of 32
members
white senators would
other,
to run against
had
each
whereas
parties
Because the
urging
are
this Court
under Act No. 83-154 only 9 white house
legislators
to extend the terms of
elected
members and 12 white senators must run
82-629,
under Act No.
an examination of its
against
Although
incumbents.
none of the
merits is
his
necessary.
In
letter of August
against
three black senators must run
Assistant
incumbent,
there is no
evidence
this
found that Act No. 82-629 violated Section
result
through
was achieved
racial gerry-
Voting
5 of the
Rights
agree
Act. We
with
mandering. The three black senate incum-
his
the configuration
determination that
are,
83-154,
bents
under Act No.
included in
certain Black Belt districts caused retro-
compact, well-defined districts which did
gression
voting
strength (particu-
black
major
not
larly
88)
require
previ-
revision from the
districts 45 and
and that there
plan.
ous
We
with
agree
unnecessary
was
fragmentation
minority
Act No. 83-154 violates
neither
communities
insufficient
adherence to
nor the Federal Constitutions. And since
county
Furthermore,
boundaries.
we find
a
primarily
is
matter for
impermissible
that Act No. 82-629 is
under
Const,
determination,
IX,
consideration and
Ala.
art.
200 be-
&
§§
Weiser,
White v.
cause of its
disregard for the integrity of
2348, 2354, 37
L.Ed.2d 335
it is not
county
of thirty
lines. Boundaries
counties
province
within the
of this Court to com-
unnecessarily split by
were
plan.
Im-
ment on the
plementation
legisla-
wisdom
various
such a
for an entire
tive
which
unacceptable.
term is
decisions from
evolved.
An
hand,
requiring
Act No.
additional reason exists for
the other
is an
exemplary reapportionment plan.
Only
In
this fall.
line
elections
fine
marks
entire state there is
single
boundary
legislative reappor
instance of
between
plans
dilution of the black
are
subject
vote. The
con-
tionment
which
to Section
*7
lines,13
forms
to
closely
county
preclearance
popula-
judicial plans
and
which are
tion
Sanchez,
variances between
accept-
districts are
not.
v.
generally
See
McDaniel
plan appears
able.14 The
represent
supra,
138-53, 101
to
a
452 U.S. at
at
S.Ct.
2230-
13. Boundaries of no
than
important
more
coun-
thirteen
to an
incidental
state interest such
split by
ties were
conforming legislative
county
Act 83-154.
as
lines,
districts to
Howell,
315, 321, 93
Mahan v.
410 U.S.
among
14. The total deviation
the House dis-
(1973),
S.Ct.
ance. an order was not necessitated HOBBS, Such Judge, concurring: District essentially and would have effectuated writ- fully opinion, I concur in the Court’s to permanent plan party formulated Johnson, except I am by Judge ten implement such a litigation. To I did not acknowledge compelled en requiring preclearance without to whether Act make a determination as courage legislative delay and frustrate Plan B had the No. 82-629 or Plaintiffs’ Voting Rights Act. purposes See by the Court’s deficiencies ascribed to them McDaniel, supra, 452 study time I had insufficient opinion. plans prior these adequately either of implemented by Act No. 83-154 will be (As June this decision of Court’s elections conducted this fall. We are order- out, points Judge opinion Johnson’s Legis- ing elections for the entire Alabama an inter- imposing June 21 decision Court’s however, reluctantly; lature plan, compelled by necessity im was stipulate agree will not be allowed deadlines.) the At- election The action of We vacating prior orders of this Court. re- of the United torney General which would approve refuse to a settlement No. 82-629 and the fusing preclear Act in office for four result the continuation in en- subsequent action of years legislators who were not elected Act which meets all con- acting This reapportionment plan. under a valid and which has stitutional duty has a solemn to relieve precleared been deprivations citizens of this state from such States, unnecessary for makes it United legal rights. of their Act No. analyze me to the merits of either duty period- has a this state also solemn —to Plan B. 82-629 or Plaintiffs’ according to state ically reapportion itself Frink, supra, and federal law. Sims Yet, re- despite at 441-42. of this the Alabama
peated efforts *8 reap- has failed to enact a valid
portionment plan eighty years. for over day finally Legisla- has arrived. The obligation its finally
ture has fulfilled people Legisla- of Alabama. But the assuming
ture will not rewarded for at the of the citi-
responsibilities expense