Alabama Legislative Black Caucus, et al v. The State of Alabama, et al (PANEL)(LEAD)

Filing 102

THOMPSON, District Judge, concurring with 101 Memorandum Opinion and Order. Signed by Honorable Judge Myron H. Thompson on 4/5/2013. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

ALABAMA LEGISLATIVE
BLACK CAUCUS, et al.,
Plaintiffs,
v.
THE STATE OF ALABAMA,
et al.,
Defendants.

DEMETRIUS NEWTON, et al.,
Plaintiffs,
v.
THE STATE OF ALABAMA,
et al.,
Defendants.

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CIVIL ACTION NO.
2:12cv691
(Three-Judge Court)

CIVIL ACTION NO.
2:12cv1081
(Three-Judge Court)

THOMPSON, District Judge, concurring:
While I agree with the majority that the motion for
summary judgment should be denied and I also agree with
much of the majority’s opinion, there are, however, parts
with which I disagree and additional comments I wish to
make.

Therefore, I write separately to explain.

I.
Assuming that the “should” in Fed. R. Civ. P. 56(a)
is, as stated by the majority, precatory rather than
mandatory, I am concerned that it could be viewed as
disingenuous to fault the ALBC plaintiffs1 for invoking
the rule and then to maintain that, in giving reasons
now, the court is acting sua sponte and not (even a
little bit) at the behest of the ALBC plaintiffs and
pursuant to Rule 56(a)’s precatory “should.”

I also see

no need, now that our reasons are public, to reach the
conclusion that our order is not appealable pursuant to
Fed. R. Civ. P. 54(a).

Having said that, I turn to the

merits.

1.
For ease of discussion, I refer to plaintiffs
Alabama Legislative Black Caucus, Alabama Association of
Black County Officials, Bobby Singleton, Fred Armstead,
George Bowman, Rhondel Rhone, Albert F. Turner, Jr., and
Jiles
Williams,
Jr.
collectively
as
“the
ALBC
plaintiffs.”
2

II.
I begin by providing the following background facts
that I have discerned from the record and which are
explained only cursorily by the majority.

Under the

Alabama Constitution, “local” laws are distinguished from
“general” laws: local laws are those that “appl[y] to any
political subdivision or subdivisions of the state less
than the whole” (including the laws at issue in this
case, those affecting individual Alabama counties) and
general laws are those that “appl[y] to the whole state.”
Ala. Const. art. IV, § 110.
All state legislation, both general or local, must be
enacted in the state legislature as a whole.

Ala. Const.

art. IV, § 44; see also Hill v. Moody, 93 So. 422, 424
(Ala. 1922).

Thus, Alabama’s counties do not have, or

have only limited forms of, “home rule,” as it is often
called.

See generally Jim Williams & Randolph Horn,

Working Papers, Local Self Government in Alabama, 33
Cumb. L. Rev. 245 (2002-2003) (reviewing laws affecting

3

local governance in Alabama and other states).

In order

for legislation affecting a single county to become law,
no matter the extent to which the matter is wholly of
local concern, it must be enacted by the entire state
legislature, and generally as a constitutional amendment.
See,

e.g.,

Ala.

Const.

amend.

§

482

(authorizing

Limestone county to “provide for the disposal of dead
farm animals, and the excavating of human graves”).
To carry out efficiently the task of managing the
affairs of Alabama’s 67 counties, the legislature has
created the system of local delegations that is at the
forefront of this case.

Each Alabama county has a

corresponding local delegation in both houses of the
state legislature. First, legislation affecting a county
originates with the county’s local delegation, which,
upon agreeing to a bill, then forwards it to the full
legislature.

Because local laws must start with local

delegation approval, the ALBC plaintiffs refer to the
delegations as having a “gate-keeping power over local

4

laws.”

Pls.’ Br. (Doc. No. 67) at 4.

legislature,

an

uncodified

courtesy” is invoked.

rule

Once in the full

of

so-called

“local

That is, the other members of the

legislature defer to the local delegation and allow the
bill to pass without objection.

The local courtesy rule

is

the

rarely

violated.

Lastly,

bill

goes

to

the

governor for signature, after which (assuming it is not
vetoed, which, although rare, happens), it is law.
At issue in this case is the manner in which members
of

the

counties’

local

delegations

are

chosen.

A

delegation consists of all legislators whose district
boundaries include a part of the county, no matter how
small that part is.
divided

among

two

For example, if one county is
legislative

districts,

the

representatives of both districts become members of that
county’s local delegation, even if one of the districts
encompasses the vast majority of the county while the
other contains only a small portion.
are

not

limited

to

joining

5

only

Also, legislators
a

single

county’s

delegation;

rather,

corresponding
districts.

to

they

the

join

counties

all
included

delegations
in

their

Once on a local delegation, a legislator

casts a single vote.
In

this

case,

the

ALBC

plaintiffs

challenge,

essentially, the fact that the local-delegations system
results in inequalities of representation and power among
county voters.

That is, with respect to local laws

affecting a single county, the voters within that county
exercise varying degrees of influence on county affairs
as a necessary consequence of all legislators in the
county’s delegation casting a single vote irrespective of
how many county residents the legislator represents.

For

example, the ALBC plaintiffs point to Jefferson county,
which, as Alabama’s most populous county, has been split
among multiple legislative districts, some of which lay
wholly within the county and some of which cross into
neighboring

counties.

One

district

in

Jefferson’s

delegation contains approximately 45,000 people total,

6

approximately 200 of whom are in Jefferson county while
the remaining 44,800 or so are in neighboring Shelby
county.

The ALBC plaintiffs contend, in essence, that

affording these 44,800 Shelby residents power over the
entirety of Jefferson county merely because they reside
in a district with 200 Jefferson residents is unfair.
They claim that the same is true in all other instances
across

the

State

where

similar

county

splitting

has

occurred.

III.
It

is

against

this

backdrop

that

I

find

most

troubling (and confusing) the ALBC plaintiffs’ emphasis
that they are attacking the redistricting “statutes”
rather than the “systems under which local delegations
have operated.”

Pls.’ Br. (Doc. No. 67) at 4; see also

Amended Compl. (Doc. No. 60) ¶ 59 (specifying that the
ALBC plaintiffs do not claim that Alabama’s “internal
legislative rules and procedures” violate the one-person,

7

one-vote requirement, but, rather, claim that the State’s
redistricting

plans,

which

“dilut[e]

the

ability

of

county voters independently to choose the members of
their local legislative delegation,” violate the rule).
(Indeed, the majority seems to be making the contrary
point that the issue really is the “systems” and not the
redistricting “statutes.”

Ante, at 16.)

To me, the issue is both.

It is the congruence of

both the system and redistricting statutes that arguably
brings about the alleged violation.

Without the systems

(under which the local delegations operate) in play, the
statutes would not have the wrongful impact the ALBC
plaintiffs claim.
of

their

scorn

In fact, after noting that the object
is

the

redistricting

“statutes,”

the

plaintiffs go on to ask and answer the following: “[I]n
light

of

the

gate-keeping

power

local

legislative

delegations have over local laws that control important
functions of government in Alabama, does splitting county
boundaries violate the one-person, one-vote rights of

8

county residents, absent a compelling federal or state
reason for doing so?

The answer is yes.”

Pls.’ Br.

(Doc. No. 67) at 4.
If,

as

the

ALBC

plaintiffs

assert,

the

local

delegations are gate-keepers; if this gate-keeping role
constitutes a “governmental function” within the meaning
of Hadley v. Junior College Dist., 397 U.S. 50, 56
(1970); and if this gate-keeper role is so longlasting
and substantive that it amounts to a law, Nashville, C.
& St. L. Ry. v. Browning, 310 U.S. 362, 369 (1940);
Adickes v. S. H. Kress & Co., 398 U.S. 144, 168 (1970),
then I think the ALBC plaintiffs may have a viable claim.2
What I cannot discern from the current record is just how
substantive and critical this gate-keeper role is in

2. See generally Binny Miller, Who Shall Rule and
Govern? Local Legislative Delegations, Racial Politics,
and the Voting Rights Act, 102 Yale L.J. 105, 127 (1992)
(“In some states the procedures [local delegations
follow] are highly formalized; in others, they more
closely resemble customs or practices than rules of
law.”).
9

practice in Alabama.3
or the other.

The evidence is not there, one way

(The ALBC plaintiffs’ factual contention,

for example, that the confluence of these factors was the
cause

of

the

“failure

of

the

Jefferson

County’s

legislative delegation to re-enact its occupational tax,
a delegation impasse that contributed to the county’s
bankruptcy,” Pls.’ Reply Br. (Doc. No. 77) at 6, is quite

3. At one point in their brief, the ALBC plaintiffs
state that the Georgia local-delegations system, as
described in DeJulio v. Georgia, 127 F. Supp. 2d 1274
(N.D. Ga. 2001) (Thrash, J.), aff’d, 290 F.3d 1291 (11th
Cir. 2002), is “virtually the same” as Alabama’s. Pls.’
Br. (Doc. No. 67) at 3. At another point they seem to
suggest that Alabama’s local delegations perform a
“governmental function.”
See id. at 4 (“local
legislative delegations have [a gate-keeping power] over
local laws that control important functions of county
government”); Pls.’ Reply Br. (Doc. No. 77) at 7 (“the
county’s local legislative delegation has more power over
local
government
policies
than
do
the
county
commissioners”).
In contrast, the DeJulio court, in
reaching its holding, said the Georgia delegations did
not perform governmental functions.
DeJulio, 127 F.
Supp. 2d at 1295. I am therefore not sure if the ALBC
plaintiffs are saying that the Georgia and Alabama
systems are similar in that they have the same set up or
in that they engage in the same practices or in all
respects. The ALBC plaintiffs need to clarify this.
10

troubling.)4

It is for this reason (that the record is so

factually undeveloped in this regard) as well as the
reason that the ALBC plaintiffs have yet to make clear
their claim (which, to be candid, seems to be evolving)
that I concur in the denial of summary judgment.5
4. See also In re Jefferson Cnty., 484 B.R. 427, 434
(Bankr. N.D. Ala. 2012) (Bennett, J.) (describing the
failure of the local delegation to replace the
occupational tax, which “was actually beyond the County’s
control,” as a “major cause” of the bankruptcy).
5. Another matter that I think needs clarification
is what, precisely, is the nature of the voter inequality
that the ALBC plaintiffs contend creates a constitutional
problem?
I can think of three theories.
(To help
illustrate them, I have added a figure on the next page.)
I assume that the ALBC plaintiffs are relying on the
first theory, but I could be wrong.

(continued...)
11

5(...continued)

COUNTY A

COUNTY B

100 voters
in county

50 voters
in county

DISTRICT 1
75 voters in district
(all 75 are in County A)

DISTRICT 2
75 voters in district
(25 are in County A and
50 are in County B)

First, there is a difference of representational
power among the voters of a single county with respect to
legislation affecting that county. In the figure above,
two legislators (those representing Districts 1 and 2)
are the gate-keepers for legislation affecting County A,
and they both cast a single vote in that regard, even
though one is elected by 75 of the county’s voters and
the other by only 25 (plus 50 out-of-county voters).
Therefore, among County A’s voters, the 25 residing in
District 2 have a 1:3 advantage over the 75 residing in
District 1 with respect to legislation affecting their
own county.
Second, depending on whether a voter resides in a
district that lays entirely within a single county or a
district that crosses county lines, the voter’s
representative is the gate-keeper for either a single
(continued...)
12

IV.
I also take issue with the majority’s suggestion
that, because the majority foresees issues down the road
with the ALBC plaintiffs’ particular relief requested,
there

is

reason

to

have

viability of their claim.

“serious

doubts”

about

the

See ante, at 17-18 (noting

that the ALBC plaintiffs have “cited no decision in which
a court has concluded that the appropriate remedy for an
5(...continued)
county or multiple counties. In the figure above, while
both Districts 1 and 2 contain 75 voters, the voters of
District 1 are represented by a legislator who is a gatekeeper for a single county (County A) while the voters of
District 2 are represented by a legislator who is a gatekeeper for two counties (both Counties A and B).
Third, as a consequence of the prior, there is a
difference in the numbers of actual people for whom
representatives are gate-keepers. That is, some voters,
through their representative, are the gate-keepers for
legislation affecting themselves and their neighbors even
though those neighbors are so for themselves only. In
the figure above, because District 2’s legislator is the
gate-keeper for both Counties A and B and District 1’s
legislator is the gate-keeper for County A alone,
consequently, the 75 voters of District 2 can affect
legislation for 150 people (1:2) while the 75 voters of
District 1 can do so for only 100 people (1:1a), and, of
course, the latter 100 people are included in the prior
150 people.
13

equal protection challenge to a local legislative scheme
is to redraw district lines for the entire legislature”).
If there is a viable claim and if the evidence reflects
that the claim has merit, then I think that it will be up
to this court to find the remedy.

Cf. Citizens United v.

Fed. Election Comm’n, 130 S.Ct. 876, 893 (2010) (“The
parties cannot ... prevent[] the Court from considering
certain

remedies

if

those

remedies

are

necessary

to

resolve a claim.”); Bowsher v. Synar, 478 U.S. 714,
781-82 (1986) (Blackmun, J., dissenting) (where the court
is faced with a constitutional violation created by “two
conjunctively unconstitutional statutory provisions,” if
the court is to remedy the violation by choosing one of
the two provisions to enjoin, the court “surely [should]
make that determination as best as [it] can instead of
leaving the selection to the litigants”).

I think it is

premature to say that redistricting is inappropriate, for
it could very well be that redistricting is the least

intrusive and most narrowly tailored remedy should there
be a violation.

One just cannot say at this time.6

DONE, this the 5th day of April, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

6. I share fully the majority’s confusion regarding
whether the claim is brought under the First Amendment,
the Fourteenth Amendment, or some form of the two
together. See ante, at 17.