Lawsuit seeking city manager under 2010 Decatur referendum dismissed

Aug. 4—A dozen years after Decatur voters passed a referendum that would have relegated the mayor to part-time status and required the appointment of a professional city manager, a lawsuit aimed at forcing the city to comply was dismissed Wednesday by the 11th U.S. Circuit Court of Appeals.

The dismissal was based not on the merits of the case, but because the plaintiff — Gary Voketz — is no longer a Decatur resident and thus, according to the court, has no standing to continue his lawsuit.

"The shifting defenses show what the city attorney really is trying to accomplish, which is simply to win this at all costs," said Carl Cole, one of Voketz's lawyers. "They're not talking about the fact that Decatur voters passed the referendum. They come up with all these technical arguments. It's anything to avoid a decision on the merits."

City Attorney Herman Marks said the city has so far spent $309,337.41 on outside attorneys and experts in the litigation.

The dismissal was prompted by a motion by the city that attached a letter from Morgan County Probate Judge Greg Cain.

"Gary Lee Voketz is a registered voter at Priceville Municipal Building. ... Mr. Voketz's current status was effective September 11, 2018," Cain wrote July 5. Cain wrote that he was responding to a letter from the city which stated in part that "it is important as a part of the governmental operations of the City of Decatur, Alabama, that determination is made of Gary Voketz's Registration status."

Under 11th Circuit rules, Voketz has 21 days to file "a motion to reconsider, vacate, or modify an order."

Cole said Voketz moved to a Priceville nursing home.

"Gary had to make a decision that was best for his health and his life. He couldn't just live in Decatur because the city's been putting off the resolution of this lawsuit for 10 years," Cole said.

He said he hopes to file a motion within the 21 days seeking to vacate the order and allowing a Decatur resident to substitute for Voketz as the plaintiff.

If Wednesday's order stands, Voketz could request that the U.S. Supreme Court hear an appeal, but the high court rarely grants such requests.

The city's outside counsel, George Royer, filed the motion to dismiss the case on July 12.

"Mr. Voketz is no longer a citizen of the City of Decatur and thus is not personally harmed by the City's allegedly unlawful failure to implement the 2010 referendum change in government," according to the motion.

Marks said he believes the city would eventually have won the case even if Voketz had not moved out of Decatur.

"We believe if it went to the merits of the case we would have prevailed, but when you find out facts you file that and make the court aware of them," Marks said. "It's never been about ignoring the referendum. We had no way to implement that form of government in Decatur and meet federal voting rights law."

The path to Wednesday's order began in 2009, when Voketz started a petition pursuant to the state's Council-Manager Act that would have made dramatic changes to a city government that now has a full-time mayor elected at-large and five council members elected in separate districts. The petition placed the issue on the April 2010 ballot, and it received a majority of the popular vote.

The form of government described in the 2010 version of the state law and triggered by the referendum would have featured a professional city manager, three district council members and two at-large council members, one of whom would serve as a part-time mayor.

"That would have greatly impacted the ability of the minority voter in Decatur to select the candidate of their choice," Marks said, because it would have prevented a majority-minority district.

City officials have argued since the referendum passed that it was impossible to drop from the current five council districts to three while maintaining a Black majority in one of those districts, a change they said violated the federal Voting Rights Act.

In an earlier appeal, the Eleventh Circuit disagreed, ruling the Voting Rights Act was not a barrier to changing the form of government. It sent the case back to the district court for more proceedings.

In the meantime, the state Legislature amended the Council-Manager Act, and the district court dismissed Voketz's claim because the 2010 referendum no longer complied with state law.

Voketz appealed to the 11th Circuit on Nov. 18, 2020, "even though," according to the city's recent motion, "by that time he was registered to vote in the City of Priceville, not Decatur."

Cole said regardless of the outcome of the court case, Decatur residents could begin a new referendum under the state's amended Council-Manager Act. That law authorizes voters to divide the city into six districts rather than the three that were possible in 2010, a change he said would allow continuation of a majority-minority district. He said he met with people last month who asked how to initiate another referendum.

"If this dismissal stands, nothing stops anybody else from doing a petition under the new statute," Cole said. "I think council members over the years have all come to the conclusion a city manager is not a bad idea, but the city attorney's office and the mayor's office don't seem to be interested in going along with what the people wanted."

— eric@decaturdaily.com or 256-340-2435. Twitter @DD_Fleischauer.