Opinion
CIVIL ACTION NO. 2:87cv1179-MHT (WO).
April 3, 2008
OPINION
This matter is before the court on the question of whether it should give final approval to the modification of the consent decree approved by this court on June 23, 1988 (Doc. Nos. 46 and 47), Dillard v. Chilton County Bd. of Educ., 699 F.Supp. 870 (M.D. Ala. 1988), aff'd, Dillard v. Chilton County Com'n, 868 F.2d 1274 (11th Cir. 1989) (table), and which provides for seven Chilton County Commissioners to be elected by the voters of the county at large using cumulative voting rules. The question is presented in a joint motion filed by plaintiffs John Dillard, et al., plaintiffs-intervenors Robert R. Binion and John Wright, and defendant Chilton County Commission, seeking the court's approval to strike the following proviso from ¶ 4 of the consent decree:
"provided, however, that the procedures used by the commission for that purpose shall ensure that, if a black citizen is elected to the county commission, he or she shall be offered the opportunity to serve a term as chair of not less that [sic] six months duration during each four year term of office. If more than one black citizen is elected to the commission, the proviso herein shall only require that one six month term as chair be guaranteed."
For the reasons that follow, the court is of the opinion that the modification should be approved and the joint motion granted.
I. BACKGROUND
The motion to amend the consent decree is joined by all parties to this action. The claims of Gilbert Green and Calvin Jones, Jr., who were allowed to intervene in 2003, were dismissed by order entered on December 10, 2007, pursuant to a mandate of the Eleventh Circuit Court of Appeals.Dillard v. Chilton County Comm'n, 495 F.3d 1324 (11th Cir. 2007). Green and Jones have filed a petition for writ of certiorari.Gilbert Green and Calvin Jones, Jr., v. Chilton County Comm, n, No. 07-1124 (U.S.).
The consent decree in this action is the last of the 180 court-ordered election plans still active in the longstanding set of Dillard cases, which began with Dillard v. Crenshaw County, 640 F.Supp. 1347 (M.D. Ala. 1986), and which eventually involved the governing bodies in 192 local jurisdictions in Alabama. By passing Act 2006-252, now codified at 1975 Ala. Code § 11-80-12, the Alabama Legislature adopted under state law all court-ordered election plans with respect to which there is no pending litigation challenging the plan. Act 2007-488 incorporated Act 2006-252 in an even broader statutory provision, now codified at 1975 Ala. Code § 11-3-1(c). Section 11-3-1(c), as amended by Act 2007-488, provides:
"Unless otherwise provided by local law, by court order, or governed by Section 11-80-12, and as otherwise provided in subsection (d), there shall be in every county a county commission, composed of the judge of probate, who shall serve as chairman, and four commissioners, who shall be elected at the time prescribed by law and shall hold office for four years until their successors are elected and qualified."
(Emphasis added.) Section 11-80-12, provides:
"Notwithstanding any other provision of law to the contrary, any board of education, county commission, or municipal governing body whose currently serving members have been elected by a method of election and a specific number of seats prescribed by a federal court shall retain that manner of election and composition until such time as the method of election or number of seats is changed in accordance with general or local law. This section shall not apply in any county where a federal court has overturned the previous order concerning the manner of election and the number of members of a county commission and shall not apply in any county where there is currently pending litigation, or appeals relating thereto, challenging previous court orders or consent orders concerning the manner of elections or the number of members or districts of a county commission."
There is no provision in Alabama law, however, for the above quoted proviso in ¶ 4 of the 1988 consent decree in this action, nor could such a racial classification be enacted by the Legislature unless it was narrowly tailored to serve a compelling state interest.
II. NOTICE TO THE CLASS AND FAIRNESS HEARING
Before addressing the merits of approving the amendment to the consent decree, the court must ensure that all members of the plaintiff class of black voters have been informed of the proposed amendment and have had the opportunity to voice any objections. Fed.R.Civ.P. 23(e). By order entered March 6, 2008, the court gave preliminary approval to the proposed modification of the consent decree and approved a notice to the plaintiff class. The notice to the class provided that all written objections must be submitted to the clerk of the court no later than by March 25, 2008. The court further stated that all objections by class members must be timely submitted in writing to be considered by the court. A fairness hearing was scheduled for April 3, 2008.
Defendant Chilton County Commission has certified that the notice to the class was published, as ordered, once a week for two weeks in the Chilton County News. The court finds that this was adequate notice that satisfies Fed.R.Civ.P. 23(e)(1), and constitutional requirements of due process. A fairness hearing was conducted on April 3, 2008, at which no written or oral objections were received from members of the plaintiff class.
III. WHETHER THE MODIFICATION OF THE CONSENT DECREE IS FAIR, REASONABLE, AND ADEQUATE.
Because all parties to this action agree to the proposed modification of the consent decree, the standards this court must employ to determine whether the modification should be approved are governed by Fed.R.Civ.P. 23(e). Reynolds v. Alabama Dept. of Transportation, 261 F.Supp.2d 1331, 1345-51 (M.D. Ala.), vacated on other grounds, 265 F.Supp.2d 1289 (M.D. Ala. 2001). Thus, the issue here is whether the proposed modification is "fair, reasonable, and adequate." Fed.R.Civ.P. 23(e)(2). This court has previously set out the factors it will examine in deciding whether a settlement is fair, adequate, and reasonable. Those factors are as follows:
"(1) the views of the class members; (2) the views of class counsel; (3) the substance and amount of opposition to the settlement; (4) the possible existence of collusion behind the settlement; (5) the state of the proceedings; (6) the likelihood of success at trial; (7) the complexity, expense and likely duration of the lawsuit; and (8) the range of possible recovery."Allen v. Alabama State Bd. of Education, 190 F.R.D. 602, 607 (M.D. Ala. 2000) (citations omitted). All of the relevant factors are satisfied here. However, in approving the amendment to the consent decree, the court must "undertake an analysis of the facts and the law relevant to the proposed compromise" and "support [its] conclusions by memorandum opinion or otherwise in the record." Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977).
In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
No objections were submitted to the court by members of the plaintiff class. Commissioner Bobby L. Agee, who is black, and other class members attended the fairness hearing and represented to the court that they favored striking the race-specific proviso from the consent decree.
The Supreme Court has provided guidance about the appropriateness of race-specific relief in a remedial decree:
"In determining whether race-conscious remedies are appropriate, we look to several factors, including the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties."United States v. Paradise, 480 U.S. 149, 171 (1987) (plurality opinion). Although the Supreme Court in Paradise was addressing remedies in an employment context, the general principles it enunciated are applicable here as well. Commissioner Agee and defendant Chilton County Commission presented evidence that the proviso had never been invoked and was not necessary. To the extent it appeared to be necessary when the consent decree was approved in 1988, 20 years is a sufficient duration for such a temporary race-specific proviso. The evidence now before the court shows that striking the proviso should have no adverse impact on the class of black voters.
Counsel for the plaintiff class, experienced voting rights lawyers, have stated their view that removing the proviso was in the best interests of the class. The consent decree has been in effect for 20 years, and striking the race-specific proviso will facilitate the final dismissal of this action. The public interest will be served by eliminating an unnecessary racial classification from the consent decree.
An appropriate judgment will be entered. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1 365 1 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , 368 (11th Ci r. 1 983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , L .Ed.2d 178 (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).