Supplemental Brief in Support of Motion to Affirm

    IN THE 

Supreme Couet of the United States 
October Term, 1978 

No. 77-1844 

  

City oF MoBILE, ALABAMA, et al., 
Appellants, 

V. 

Wey L. BoLbEN, et al., 
Appellees. 

  

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

  

SUPPLEMENTAL BRIEF 

IN SUPPORT OF MOTION TO AFFIRM 

  

  

Epwarp STILL 
601 Title Building 
Birmingham, Alabama 35203 

J. U. BLACKSHER 
Larry MENEFFEE 

1407 Davis Avenue 
Mobile, Alabama 36603 

JACK (GREENBERG 
Eric SCHENAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Counsel for Appellees 

  

   



    

 



IN THE 

Supreme Court of the United States 

October Term, 1978 

No. 77-1844 

  

City or MoBILE, ALABAMA, et al., 
Appellants, 

V. 

WiLey L. BoLpEN, et al., 
Appellees. 

  

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

SUPPLEMENTAL BRIEF 

IN SUPPORT OF MOTION TO AFFIRM 

Appellees submit this supplemental brief with regard to 

a new issue first raised by appellants’ Opposition to Motion 

to Affirm: whether the dilution rule of White v. Regester, 

412 U.S. 755 (1973), should be applied to city elections. 

Whatever the merits of that question, it simply is not 

presented by the instant case. The decision of the Fifth 

Circuit rests, not on a finding of dilution in violation of 

White, but on a finding of intentional discrimination in 

violation of Gomullion v. Lightfoot, 364 U.S. 399 (1960). 

The nature of the opinion below was detailed in our Motion 

to Affirm, pp. 8-14, and appellants’ in their Opposition do 

not dispute our characterization of the Fifth Circuit’s de- 

cision. Accordingly even if this Court were to hold White 

inapplicable to city elections, that would not require or per- 

mit reversal of the decision below. 

 



  

2 

This new contention, moreover, was never raised by ap- 

pellants in the extensive litigation in the District Court 

and Court of Appeals, and is not included in the Jurisdie- 

tional Statement. Although the meaning and application of 

White was repeatedly and exhaustively briefed below, at 

no time prior to the filing of their Opposition to Motion to 

Affirm did appellants contend that White should not be 

applied to city elections. In support of this new contention 

appellants offer regarding the role of elected city officials 

a variety of factual assertions which were not presented 

to or addressed by the courts below and on which the 

record in this case is silent. Since this issue is not a juris- 

dictional one, and since appellants failed to raise or pre- 

serve it below, it is not properly before this Court. Mt. 

Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 278-81 

(1977). 

For the above reasons the judgment of the Court of Ap- 

peals should be affirmed. 

Respectfully submitted, 

Epwarp StiLL 
601 Title Building 
Birmingham, Alabama 35203 

J. U. BLACKSHER 
LARRY MENEFFEE 

1407 Davis Avenue 
Mobile, Alabama 36603 

JACK GREENBERG 

Eric ScHNAPPER 
Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Counsel for Appellees 

   



 



    

 



 



RESS SEE SS INC - P S — iN) of 
Cc SE 

GR 219