Order on Defendant City's Motion for Clarification

    IN THE UNITED STATES DISTRICT COURT FOR 
THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY L. BOLDEN, et al., 

Plaintiffs, 
CIVIL ACTION 

¥. 
No. 75-297-P 

CITY OF MOBILE, ALABAMA, 
et al., 

Su
e 

Na
e 

No
o 

N
o
 

N
t
 

No
 

N
t
 

N
o
 

N
o
 

Defendants. 

ORDER ON DEFENDANT CITY'S MOTION FOR CLARIFICATION 
  

The defendant City of Mobile filed a motion for clari- 

fication of this court's opinion and related orders in Bolden 

v. City of Mobile, 423 F. Supp. 384 (8.D. Ala. 1976), aff’'d., 
  

571 F.2d 238 (5th Cir. 1978), appeal pending, 58 L.Ed.2d 106 
  

(October 2, 1978), in order to ascertain the effect of these 

decisions on the operation of Alabama statutes providing for the 

rotation of the office of mayor among Mobile's three city com- 

missioners. 

This court has examined the pertinent statute, the 

City's motion with its attached exhibits, as well as its own 

past orders and has made the following findings and has reached 

the following conclusions. 

Alabama law expressly provides for each of the three 

city commissioners to serve a sixteen-month term as mayor during 

the four-year term to which all three are elected. The provi- 

sion states: 

"The person holding the position of 
place number one on the board of 
commissioners shall be the presiding 
officer of the board of commissioners 
and shall act as mayor of the city for 
the first sixteen months of his term. 
During the next sixteen months the per- 
son holding the position of place number 
two on the board shall be the presiding 
officer of the board and shall act as 
mayor, and for the final sixteen months 

 



  

of the term the person holding the 
position of place number three on 
the board shall be the presiding 
officer thereof and act as mayor. 
Any commissioner who desires not 
to serve as presiding officer and 
to act as mayor may decline to do 
so. In the event a commissioner de- 
clines to serve as presiding officer 
of the board and to act as mayor, 
the board shall elect one of the 
other members thereof to serve as 
presiding officer and to act as 
mayor." 

Appx., §1402(24) Code of Ala. 1940 (1965 Cum. Supp.). 
  

The commissioner holding the position of place number 

three on the board, Lambert C. Mims, assumed the office of 

mayor in June of 1976 prior to the entry of this court's original 

decree in Bolden in the latter part of that same year. Mims' 

term as mayor was due to expire in October of 1977 following the 

scheduled 1977 election of the three commissioners who would 

take office at that time. With the advent of the Bolden decision 

and the subsequent stay of all elections whether for three com- 

missioners or a mayor and council, the question arose as to who 

would serve as mayor after the first of October, 1977. 

  

1/ There appears to be some conflict as to when the commissioners 

— take office after an election. See Code of Ala. 1975 
§§11-44-74 and 11-46-92. The practice in the City of Mobile 
has been to follow §11-46-92, to wit, take office on the first 

Monday in October following their election. This court has 
followed that practice in setting the date of the terms as 

mayor. 

  

  

The City's attorney, Mr. Fred G. Collins, thereupon 

sought from then Attorney General William J. Baxley an opinion 

on the rotation of the Mobile mayor's job among the commissioners 

in light of Bolden. On August 23, 1977, Mr. Baxley's office 

wrote a letter to Mr. Collins stating that its reading of the 

applicable provisions on the subject led the Attorney General to 

conclude "that the Commissioner of Place No. 3 [Mims] should 

continue to serve as mayor until the mayor of the new government 

 



  

is elected and takes office." File item no. 161, Exhibit H, 

p. 3 | 

The City followed the Attorney General's recommendation 

and Commissioner Mims has served as mayor for twenty-two months 

beyond the time he was scheduled to step down as mayor in the 

rotation of the job in October of 1977. 

After both the Fifth Circuit's affirmance of this 

court's Bolden ruling and the Supreme Court's decision to hear 

the case on. appeal in 1978, the Board of Commissioners of Mobile 

passed a resolution on May 22, 1979, asking the present Attorney 

General of Alabama, Charles A. Graddick, to review the question 

of the operation of the state provision on rotation of the 

mayor's office in the wake of this court's change-of-government 

decree. File item no. 161, Exhibit K. On May 30, 1979, Mr. 

Graddick responded by letter and, in declining to make a recom- 

mendation, stated that any opinion on the matter from his office 

"would be, just as Attorney General Baxley's opinion was, only 

my best guess as to the federal court's intent.” File item 

no. 161, Exhibit L, p. 2. Furthermore, Mr. Graddick recommended 

direct presentation of the issue to this court through a motion 

for clarification, an approach that the Board of Commissioners 

voted to adopt on June 12, 1979, File item no. 161, Exhibit M, 

and that their attorney pursued by filing such a motion on 

June 20, 1979. 

In the aftermath of the original Bolden decree and the 

ensuing related orders, it was the intent of this court that all 

Alabama laws, state and local, relating to the City of Mobile 

and the city commissioners (unless declared invalid by a court 

of competent jurisdiction) continue to apply pending the outcome 

of the appeal of the Bolden case to the higher Federal courts. 

Business as usual was to proceed at City Hall despite the 

pending appeal. The State provision on rotation of the position 

 



  

of mayor cited above is one of the laws dealing with the conduct 

of City government that was unaffected by the appellate proceed- 

ings growing out of Bolden. 

It is the opinion of this court that the rotation of 

the mayor's position among the commissioners should continue. 

Since the rotation has not proceeded and Commissioner Mims has 

continued to hold the mayor's position beyond his sixteen months 

term, the rotation should resume as soon as possible and in 

accordance with the terms of the State provision. In the normal 

rotation, the commissioner holding place number one, Gary A. 

Greenough, would have commenced his term as mayor October 3, 

¥077. It pUpeur's fair and equitable that he serve as mayor at 

this time. He was next in line. 

It is likely that before the end of the United States 

Supreme Court's 1979 term in the summer of 1980, a decision in 

the Bolden case will ‘be reached resolving the question of whether 

a mayor-council election will be held or the election of com- 

missioners originally set for 1977 will be conducted. If this 

court is affirmed, an election of the mayor-council would pro- 

ceed in a reasonably short time thereafter. If this court is 

reversed, a commission election would be held according to State 

law and this court would not have further jurisdiction in these 

matters. For these reasons it seems advisable to set the terms 

in accordance with the State law of sixteen-month periods and 

in their normal cycle. The present term or cycle began in 

February 1979. 

It is therefore ORDERED, ADJUDGED, and DECREED that 

pursuant to Appx., §1402(24) Code of Ala. 1940 (1965 Cum. Supp.), 
  

the position of mayor of Mobile be rotated among the present 

commissioners with Commissioner Gary A. Greenough, who holds 

place number one on the board of commissioners, assuming the 

office on August 6, 1979, and serving in that capacity for the 

 



  

remainder of the present term or cycle ending June 1, 1980. 

On June 2, 1980, Commissioner Robert B. Doyle will assume the 

position of mayor for the next term. Further rotation would 

be in accordance with §1402(24). 

Costs are taxed against the petitioner-defendant 

City of Mobile. 

Done, this the X day of August, 1979. 

  

  

UNITED STATES DISTRICT JUDGE 

U. S. DISTRICT COURT 
SOU. DIST. ALA. 
FILED AND ENTERED THIS THE 

a nel DAY OF AUGUST 1979 

MINUTE ENTRY NO. 47, 237 

WILLIAM J. O' CONOR. x SLERK 
BY =, 

Deputy gli 

 



CLERK, U. S. DISTRICT COURT 

SOUTHERN DISTRICT OF ALABAMA 

P. O. Box 2625 

MOBILE, ALABAMA 36601 

OFFICIAL BUSINESS 

PENALTY FOR PRIVATE USE $300 

POSTAGE AND FEES PAID § 

UNITED STATES COURTS