Hayden v. Pataki Reply Brief for Plaintiffs-Appellants

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

SOUTHERN DIVISION 

  

WILEY L. BOLDEN, et al., 

Plaintiffs, 

Vv. CIVIL ACTION 

CITY OF MOBILE, ALABAMA, et al., No. 75~-297-P 

Defendants. 

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APPLICATION FOR STAY PENDING APPEAL 
  

Defendants City of Mobile, et al., move this Court pursuant 

to F.R.Civ.P. Rule 62(c) for an order staying implementation of 

this Court's Orders of October 21, 1876, and March Oe 1977; 

disestablishing the City's present form of government and in- 

stituting a new mayor-council Cover ruent, pending appeal to the 

United States Court of Appeals for the Fifth Circuit and until 

determination thereof, and shows to the Court as follows: 

1. This Court's decision of October 21, 1976, was based 

upon the legal premise that Plaintiffs were not required to prove 

discriminatory intent or purpose to prevail under the Equal Pro- 

tection Clause. Although the Supreme Court had recently held in 

Washington v. Davis, 426 U.S. 229 (1976), that such intent was 
  

essential to proof that a facially neutral official action is 

violative of the Fourteenth Amendment, this Court concluded that 

Davis was inapplicable to the case at bar. | 

Subsequent decisions of the Supreme Court demonstrate conclu- 

sively that this Court was mistaken in limiting Davis to its facts. 

Proof of invidious intent or purpose is a universal requirement for 

success of any Equal Protection challenge to facially neutal official 

action. Village of Arlington Heights v. Metropolitan Housing Develop- 
    

 



  

Va
al

 

ment Corp., U.S. r 978. Ct. 555,8563:(1877)y United   

States v. Board of School Commissioners of Indianapolis, U.S. 
  

, 45 U.8.LW, 3508 (U.S, Jan, 25, 1977), vacating 541 YF 24 

1211 (7th Cir. 1976) in light of Davis and Arlington Heights; 
  

United Jewish Organization of Williamsburgh, Inc. v. Carey, U.S. 
  

  

; 45 0.8. LW. 4221, 4231 -{(U.8.. Mar. 1, 1977) (Stewart, J., 

concurring). 

2. This Court's denial of access holding was based primarily 

upon its finding of black discouragement over the chance for politi- 

cal victory in the face of putative racial bloc voting in Mobile. 

Yet the Supreme Court has recently reaffirmed the principle of 

Nevett v. Sides, B33 F, 24 1361, 1365 (5th Cir. 1976) that even 

where racially polarized voting precludes election of blacks; this 

result does not offend the Constitution and require restructuring 

of the electoral system to permit blacks to be elected. United 

Jewish Organizations, supra., 45 U.S.L.W. at 4227. 
  

3. On these and other points, the City is likely to prevail 

on appeal. 

4. This Court has recognized that its ordering of a change in 

the City's form of government raised serious constitutional issues 

as to which reasonable men might reasonably differ. 423 F. Supp. at 

404. Unless the Orders of this Court are stayed pending resolution 

of these issues by the Court of Appeals, Defendant City and its 

citizens will suffer grave and irreparable harm. Mobile's present 

Commission Government will have been scrapped, its Charter completely 

revamped under Order of this Court, and a newly enlarged body of 

City officials elected--all before the lawful basis for such a 

changeover has been scrutinized by the Court of Appeals. 

 



  

5. The change of government ordered by this Court will clearly 

occasion considerable confusion and disruption to the City's normal 

functions. But if the Court of Appeals reverses, as Defendants 

submit it must, these disruptive effects will pale in comparison with 

those caused by reinstituting Mobile's Commission Form of Government. 

The Court-ordered August 1977 councilmanic and mayoral election will 

be rendered nugatory, and the nine newly elected Councilmen and the 

Mayor would be reduced, once again, to three Commissioners. Candidates, 

black and white alike, who have campaigned at considerable expense, 

both personal and financial, will find themselves vying once again 

for City office. The interests of all parties to this action, and 

the interest of the public at large, will be gravely disserved if 

this Court of equity countenances these results by failure to stay 

its hand pending appeal. 

6. The status quo to be preserved pendente lite is the main- 
  

tenance of Mobile's City Commission form of government, effective 

for 66 years. 

WHEREFORE, Defendants City of Mobile, et al., respectfully 

urge this Court to order that all elections and electoral changes 

in Mobile's present scheme of government be stayed pendente lite 
  

and that Its Orders of October 21, 1976 and March 9, 1977 be 

vacated pendente lite. 
  

Respectfully submitted, 

OF COUNSEL: 

Hand, Arendall, Bedsole, 
Greaves & Johnston 

Post Office Box 123 
Mobile, Alabama 36601 

Legal Department of the 
City of Mobile 

Mobile, Alabama 36602 

Rhyne & Rhyne 
400 Hill Building 
Washington, D.C. 20006 

C.. B. Arendall, Jr. 

William C. Tidwell III 
Travis M. Bedsole, Jr. 
Post Office Box 123 
Mobile, Alabama 36601 

Pred G. Collins, City Attorney 
S. R. Sheppard, Assistant City 

Attorney 

City Hall 
Mobile, Alabama 36602 

Charles S. Rhyne 
Nilliam S. Rhyne 
Donald A. Carr 

Martin W. Matzen 
400 Hill Building 
Washington, D.C. 20006 

 



  

CERTIFICATE OF SERVICE 
  

I do hereby certify that I have on this Apis day of 

March, 1977, served a copy of the foregoing Application for Stay 

Pending Appeal on counsel for all parties to this proceeding, by 

mailing the same by United States mail, properly addressed, and 

first class postage prepaid. 

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Attorney i ff 

 



  

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IN THE UNITED STATES DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

  

WILEY I,. BOLDEN, ET AlL., 3 

Plaintiffs, : 

VS. : CIVIL ACTION NO. 75—-297-P 

CITY OF MOBILE, FT AL., : 

Defendants. : 

MEMORANDUM IN SUPPORT OF DEFENDANTS' 
MOTION FOR STAY PENDING APPEAL 
  

l. INTRODUCTION 

By Order of March 9, 1977, this Court ordered the 

City to conduct mayor-council elections for the government 

mandated by that Order in August of 1977. The March 9, 

1977, Order also required the Board of Registrars to 

redesignate city wards in conformity with that Order by 

May 1, 1977. Pursuant to Rule 62{(c), F.R.C.P., Defendants 

have filed a motion for a stay of this Court's Order of 

March 9,:1977. 

II. ARGUMENT 

Under Rule 62{(c) , F.R.C.P., a’'district court has 

discretion to stay its order granting an injunction pending 

appeal of that order. Whether the stay is sought from 

the district court under Rule 62(c) or from the court of 

appeals under Rule 62(g), "the governing considerations 

are the same . . . ." 11 C. WRIGHT AND A. MILLER, FEDERAL 

PRACTICE AND PROCEDURE §2904 at 316. 

The four factors to be considered in determing 

whether to grant a stay pending appeal are: 

 



  

(1) "a likelihood that petitioner 
will prevail on the merits of 
the appeal”, though as will 
be discussed, this standard 
is significantly relaxed where 
novel issues have been decided 
by the district court; : 

(2) "irreparable injury to the 
petitioner unless the stay is 
granted"; 

(3) "no substantial harm to other 
interested persons"; 

(4) "no harm to the public interest". 

Pitcher v. Laird, 415 v.24 743, 744 (5th Cir. 1969); Belcher 
  

v. Birmingham Trust National Bank, 395 F.2d 685, 686 (5th 
  

Civ. 1963). 

1. Likelihood of Reversal and the "Novel Question" 
  

Exception. Under the first element there has developed a   

body of law dealing with novel or unsettled questions which, 

if not an exception to that element, at least constitute a 

significant relaxation of it. 

Such an exception is a practical necessity; no 

judge could otherwise grant a stay, since a district judge 

is certainly unlikely to decide a case one way while acknow- 

ledging "the likelihood that [the losing side] will prevail 

on appeal. Professor Moore, recognizing that "it is perhaps 

unusual" that a district judge could formally find a "likeli- 

hood" of being reversed, finds a relaxation of the rule in 

cases of first impression, noting that the first element 

depends, of course, on the level 
of the judicial creativity of the 
district court. In cases in which 
the court has moved into uncharted 
areas, it may be doubtful enough 
about the substantive correctness 
of its decision to stay an injunc- 

Five Order . J us 

7 MOORE'S FEDERAL PRACTICE 462.05 nlb5c. 

Moore cites, as examples of stays granted in novel 

cases, Bradley v. School Board of City of Richmond, 456 F.24 
  

» 

 



  

6 (4th Cir. 1972) (school district merging case) and Rodriguez 
  

  

v. San Antonio Independent School Dist., 337 F. Supp. 280 

(W.D. Tex. 1972) (school/property tax equalization case). 

Other courts have recognized that a district court 

should bend over backward in a novel case to make a favorable 

finding upon the first element. The district court in Stop 

H-3 Ass'n. v. Volpe, 353 F. Supp. 14 (D. Hawail 1972) wrote 
  

that: 

A stay is frequently issued where 
the trial court is charting new 
and unexplored ground and the 
court determines that a novel 
interpretation of the law may 
succumb to appellate review 
{citing Rodriguez). . +. . 
  

Id. at 16. In that case, the status quo was maintained, 

which meant that under the procedural stance of the case 

the stay had to be denied. 

In Marr v. Lyon, 377 Fr, Supp. 1146 (WwW. D. Okla. 1974), 
  

the court wrote that: 

The Court recognizes that the 
issues in this case are novel 
and thus defendants should be 
given the benefit of the doubt 
as to whether they are likely 
to succeed on appeal. 

Id. at 1147. The party seeking the stay, however, did not 

make the requisite showing on the other factors. 

The Court is intimately familiar with the legal 

points at issue in this case; a reconsideration would be 

futile. However, there are two points upon which the holdings 

of the Court have charted new territory, and acknowledgment 

of grounds for substantial difference of opinion as to the 

propriety of those two holdings should lead the Court to a 

favorable finding on the first element. 
[J 

(Ll) Discriminatory Purpose. This Court held that 
  

Washington v. Davis does not apply to voter dilution cases. 
  

 



  

The Supreme Court subsequently held in Village of Arlington   

Heights v. Metropolitan Housing Development Corp., G.S. 
  

vr 50'L. EA. 24 450 (1977), that the principle oF 

Washington v. Davis applies to all fourteenth amendment 
  

cases, The Fifth Circuit in Paige v., Grey, 538 7. 24 1108 
  

(5th Cir. 1976), acknowledges the probable application of 

Washington v. Davis to fifteenth amendment voting cases.   

The district court in the Nevett v. Sides voter dilution 
  

case indicated belief that discriminatory purpose must be 

shown in cases of this nature. This Court's finding to the 

contrary stands alone among courts addressing the issue. 

Finally, there is a substantial probability that 

the Supreme Court has rejected the "tort standard of intent" 

as inconsistent with Washington v. Davis. Austin Independent 
    

School District v. United States, U.S. + :50 Yi. Ed. 
  

24 603 (1976). 

(2) Federalism. This case along with the Shreveport     

case is the first to order on constitutional grounds a city 

to change the form of its government. Furthermore, this 

Court has taken the extraordinary step of proscribing in 

every detail the government that must be used by the City. 

In the light of Supreme Court precedent on federalism, grant- 

ing significant leeway to the form of local governments, the 

holding of this Court with respect to the remedy is exceedingly-- 

indeed, uniquely--novel. 

2. Irreparable Injury to the Defendants. It is   

clear that the City of Mobile and the majority of its people 

will suffer irreparable injury if this Court requires mayor- 

council elections to be held before Defendants' pending appeal 

can be heard. 

Many cogent reasons exist for staying this Court's 

order requiring mayor-council elections. Certainly, the 

 



  

disruption that would be caused by the change to a new form 

of government would be substantial. Of course, if this 

Court's order is sustained, this disruption will have to 

be faced. But where there is significant (as opposed to 

merely a theoretical) chance that this order will be reversed 

on appeal, it is both unwise and wasteful of limited public 

resources to order such a change before it is finally de- 

termined that the change is necessary. 

Furthermore, the dislocation, confusion, and hard- 

ship that would result should mayor-council elections be 

held this summer and should the Fifth Circuit subsequently 

reverse this Court's decision would be enormous. It is 

better for all concerned, Plaintiffs, Defendants, and the 

people of Mobile (whether for or against the commission 

form of government) that this issue be finally resolved 

before the enormous task of changing the form of the govern- 

ment is undertaken, and that any change be postponed until 

the awesome possibility that such a difficult change would 

shortly have to be undone is eliminated. 

3. Lack of Substantial Harm to Other Interested 
  

Persons. No substantial harm will result to Plaintiffs 

or to other interested parties if this Court stays its 

order pending decision on appeal. Of course, if this 

Court's decision is sustained, it is unfortunate--wrong-- 

that black voters suffered all these years under an uncon- 

stitutional form of government. But, the realities are 

that this government has existed for 66 years. The exis- 

tence of the government for a little while longer, until 

the appeal can be resolved, does not result in any signi- 

ficant additional hardship to Plaintiffs. And, the burden   

that would be imposed upon the Plaintiffs by granting 

the stay is nothing compared to the burden imposed upon 

 



  

the City of Mobile and the majority of the people support- 

ing its government, should that government be forceably 

changed by this Court and should that order then be re- 

versed on appeal. 

4. The Public Interest. The fourth criteria, 
  

the public interest, is in the circumstances of this case 

closely related to the merits. It is in the public interest 

that the City of Mobile not have an unconstitutional form 

of government. But it is also in the public interest that 

the majority, if possible, be allowed to choose the form of 

their government. The clearly expressed majority interest 

of the people of Mobile is in favor of the commission form 

of government and thus is in favor of a stay. As indicated 

in connection with Item No. 3, granting of the stay allowing 

the Commission government in existence since 1911 to continue 

in existence for the relatively short period of time until 

the appeal is resolved imposes no substantial additional 

hardship on Plaintiffs, even should this Court's Order 

eventually be sustain on appeal. 

IX. CONCLUSION 

For the reasons discussed above, justice requires 

this Court to stay its order of March 9, 1977, until the 

City's appeal from that order and from this Court's order 

of October 21, 1976, and judgment of October 22, 1976, is 

finally resolved. 

Respectfully submitted, 

OF COUNSEL: 

Hand, Arendall, Bedsole, CC. B. &rendall, Jr. 

Greaves & Johnston William C. Tidwell, III 

Post OFFice Box 123 Travis M. Bedsole, Jr. 

Mobile, Alabama 36601 Post Office Box 123 
Mobile, Alabama 36601 

 



  

* 
- —- 

Legal Department of the Fred G. Collins, City Attorney 
City of Mobile City Hall 

Mobile, Alabama 36602 Mobile, Alabama 36602 

Rhyne & Rhyne Charles S. Rhyne 
400 Hill Building William S. Rhyne 
Washington, D. C. 20006 Donald A. Cary 

Martin W. Matzen 

400 Hill Building 
Washington, D. C. 20006 

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Attorneys for Defendants 
  

CERTIFICATE OF SERVICE 
  

I do hereby certify that I have on this jo th day of 

March, 1977, served a copy of the foregoing Memorandum in 

Support of Defendants' Motion for Stay Pending Appeal on counsel 

for all parties to this proceeding, by mailing the same by 

United States mail, properly addressed, and first class postage 

prepaid. 

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