Plaintiffs' Memorandum Regarding Retention of Jurisdiction and Comments on the Process of Change by the Legislative Branch

    IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY L. BOLDEN, et al., 

PLAINTIFFS 

VS. CA 75-297-P 

CITY OF MOBILE, ALABAMA, et al., 

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DEFENDANTS 

PLAINTIFFS' MEMORANDUM REGARDING RETENTION OF 

JURISDICTION AND COMMENTS ON THE PROCESS OF 

CHANGE BY THE LEGISLATIVE BRANCH 
  

At the conference on 17 December the Court requested that 

the parties recommend a timetable for retention of jurisdiction. 

This memo will address that point plus two others raised by the 

Court in the course of its discussion. These deal with the limits 

to be placed on future legislative changes of the Mobile form of 

government and the power of the present commission to change to 

a mayor-council form. 

Power of present commission. The present commission has 
  

absolutely no power to initiate or implement a change to an 

aldermanic form of government. Under Ala. Code, Tit. 37, Sections 
of an appropriate number of voters 

120 et seq., a petition/for abandonment must be submitted to the 

  

probate judge. The commission's only function is ministerial-- 

in calling the election and supervising it. On the other hand, 

Sec. 426 gives the council a great deal of power to change its 

composition in size and constituency within the forms allowed by 

  

Sec. 426. Of course, the commission could have some effect on the 

council composition by changing the number of wards. (There is a 

conflict about the number of wards: Sec. 7 allows up to 14 with 

an additional ward per 4,000 population over 50,000--which would 

allow Mobile about 50 wards--and Sec. 426 allows a maximum of 20 

‘wards. ) 

Limits on legislative power. The Court has indicated its 
  

desire to restrict the legislature's power on the following subjects: 

 



  

diminishing the powers of the council; changing the number of 

council members; abandoning the single member district provision; 

or the design or boundaries of the districts. While we agree 

that a legislative diminution of council powers could effectively 

nullify this Court's decision by placing nearly all power in a 

majority-elected mayor rather than sharing it with a pluralistic 

council, we are not sure that the Plan proposed by Buskey, Langan, 

and Outlaw or by us is necessarily the irreducable minimum. (We 

might note that if this is the concern of the Court, perhaps the 

Court's order should not place so much power in the hands of the 

mayor.) Likewise, we see no magic in the size of the council. 

Certainly, too small a council will lose representativeness and 

too large a council might be unweildy. But nine is not the only 

number that would satisfy the Constitutional requirements. Any 

legislation changing the district boundaries ought to be examined 

very closely to see whether it diminishes black opportunity. This 

can be accomplished under the Votings Rights Act (but see the 

discussion of the Act, below). We believe that our proposed In- 

junction strikes the right balance by allowing the Legislature to 

use its power wisely, restricted only by the principlesof the 21   

October opinion and not by the prescriptions of this Court's in- 

junction. The Court will retain the final word by requiring the 

legislation be approved before taking effect. 

Retention of jurisdiction. Your honor pointed out that this 
  

Court may not need to retain jurisdiction because the Voting Rights 

Act would require a pre-clearance of any changes in form of govern- 

ment, time, place or manner of elections, etc. We would have 

thought that true until the three-judge panel's decision in United 

States of America v. Board of Commissioners of Sheffield, Alabama, 
  

CA 76-M-1086-NW (N.D.Ala, 13 Dec. 1976), a copy of which is enclosed. 

The Court held that the Voting Right Act challenge to Sheffield's 

change of government must fail for two reasons: (1) Sheffield was 

not a "political subdivision" within the meaning of the Act, 42 

USC Sec. 1973 1(c) (2); and (2) the Attorney General gave approval 

 



  

the referendum on the change of government and this constituted 

either an implicit approval of the form of the new government or 

a termination of his authority over the implementation of the 

referendum-approved change. 

Regarding the first point, the panel stated that 

All reported cases***applying the Voting Rights 
Act to municipalities have involved either state 
legislative enactments clearly subject to the 
Act, such as did Robinson v. Pottinger, 512 F. 
2d 775 (5th Cir 1975), *** or they involved 

cities which do in fact conduct or supervise 
registration of voters. 

  

We find it hard to distinguish the state legislation involved in 

Robinson and that involved in Sheffield. In Robinson, the Legis- 
    

  

lature had passed a general act of local application allowing 

cities of a certain size (Montgomery being the only one) to change 

to a Mayor-Council Form of government. In Sheffield, the legisla- 
  

tion was a general act; the city sought to implement it to change 

to the aldermanic form of government. In each case, the change 

was initiated by a petition of voters and the change was approved 

by a referenda The distinction between the two cases is quite 

small, but it appears that this new interpretation may hold that 

if a city implements a general act which was passed before the 

1965 Voting Rights Act, no pre-clearance of the implementation by 
  

the city (a non-"political subdivision") is necessary. If this is 

true, this Court should not depend upon the Voting Rights Act as a 

protection against diluting or gerrymandering changes. If the 

Supreme Court does not reverse Sheffield, this Court ought to re- 
  

tain jurisdiction for a much longer period than it otherwise would. 

We suggest that our proposed Injunction be modified (as set 

out below) to retain jurisdiction for six years for all purposes, 

but that the case would be terminated sooner if the Legislature 

passed a comprehensive mayor-council bill for Mobile or if Mobile 

adopted such a bill for itself under home rule powers. In either 

case, the new form of government must be approved by the Court. 

Paragraph 35 of the proposed Injunction already places the council 

under a continuing duty of reapportionment. This part of the 

 



  

Injunction would not necessitate a formal retention of jurisdiction. 

(I might note that I view "retention of jurisdiction” as a situation 

in which any party might petition the Court for action without 

filing a new lawsuit. On the other hand, the violation of the In- 

junction, even after retention of jurisdiction had ceased, would 

still be actionable. We do not propose the Injunction in toto be 

dissolved--only certain parts of it.) 

The appropriate paragraphs should be revised as follows: 

36. Nothing in this order shall prevent the Legisla- 
ture of Alabama, or the governing body possessing 
legislative jurisdiction over the City of Mobile, 
from changing the powers, duties, responsibilities 
or terms of office of the city council and mayor, 
or changing the boundaries of wards or districts, 
or changing the number of wards or districts; pro- 
vided however that the Court retains jurisdiction 
for six years to review such changes for conformity 
with the principles enunciated in the order of this 
Court entered in this case on October 21, 1976, 
and to resolve conflicts that may exist between this 
Injunction and provisions of state law. 

37. The retain jurisdiction of this Court shall be 
dissolved when and if 
(a) (1) the Legislature of Alabama adopts a compre- 
hensive act establishing a form of government for 
the City of Mobile; or 
(2) the City of Mobile, acting under "home rule" 
powers, adopts such a comprehensive act; and 
(b) this Court approves such act. 

Finally, we ask that the Court issue a final order as quickly 

as possible so that the Court of Appeals will be able to consider 

all facets of this case (liability, relief, and attorneys' fees) 

in one appeal. 

Submitted by 

  

Edward Still 

601 Title Building 
Birmingham, Alabama 35203 

James U. Blacksher 

Larry Menefee 
Crawford Blacksher, Figures & Brown 
1407 Davis Ave. 
Mobile, Alabama 36603 

Jack Greenberg 
Charles Williams, III 
Suite 2030 
10 Columbus Circle 
New York, N.W. 10019 

Attorneys for Plaintiffs 

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CERTIFICATE OF SERVICE 
  

I, the undersigned attorney, do hereby certify that, prior 

to or immediately after filing a copy of the foregoing with the 

Court, I mailed or delivered a copy of the foregoing to the 

following: 

Mr. Charles A. Arendall Mr. S. R. Sheppard 
Mr. David Bagwell Legal Department 
P.O. Box 123 City of Mobile 
Mobile, AL 36601 Mobile, AL 36602 

Date: December Z| 1976 AEN 
  

Edward Still 

 



  

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT 
OF ALABAMA, NORTHWESTERN DIVISION 

UNITED STATES OF AMERICA, ) 

Plaintiff ) 

ii ) CIVIL ACTION NO. 76-M-1086 

BOARD OF COMMISSIONERS OF Ea 
SHEFFIELD, ALABAMA: F.E. 

DRAPER, Member and President; ) 

  

and B. F. WALDEN and DONALD FILED IN CLTRK'3 OFC: 
F. RUGGLES, Members, ) WORTHERH DISTRICT OF ALADANLA 

Defendants ) ~ A 
DEC 1 3 1576 

JAMES E, VALLEGRIZT, CLERK 
HITED STATES DISTRICT IR 

MEMORANDUM OPINION 4 D STATES DISTRIDT COURT. 
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ho} 3 

Before Rives, Circuit Judge, and Grooms and McFadden, District 
Judges. : 

McFadden, District Judge. 

The Attorney General of the United States initiated 

this action pursuant to the Voting Rights Act of 1965, as 

amended, 42 U.S.C. § 1973(c), seeking to enjoin the implemen- 

tation of a proposed change in the form of the government of 

the City of Sheffield, Alabama, to the extent that it provides 

for an at-large method of electing .city Shonet hen until 

federal pre-clearance by either of the two statutorily required 

‘methods has been obtained. 

On March 20,:1875, the City of Sheffield, pursuant 

to Section 5 of the Voting Rights net, submitted to the 

Attorney General of the United States for pre-clearance a 

proposal for conducting a referendum to determine "whether 

the present commission form of government shall be abandoned 

in favor of the Mayor and Aldermen form of government." The 

Attorney General did not object to the holding of the referendum, 

but canbioned that the change to the new form of government 

remained subject to the pre-clearance requirements of Section 5. 

The voters of the City approved the referendum on May 13, 1975, 

  

  

 



  

thereby authorizing a change from a Commission form of 

government to a Mayor-Council City Government. On 

October 23, 1975, the Attorney General received the City's 

submission for pre-clearance of the change to the Mayor- 

Council Government, which the City contends was unnecessary, 

but done out of an abundance of caution. On December 22, - 

1975, the Attorney General requested sdalBions information, 

which he received én May: 5, 1876. :On July 6, 1976, the 

Attorney General interposed an obey lon to the proposed 

at-large method of e ladting City Councilmen RAder the new 

form of government and on August 9, 1976, initiated an 

action seeking to enjoin the eYeation bf City Councilmen 

under the new plan. 

This Court, on September 29, 1976, denied plain-. 

tiff's request for an injunction and dismissed its complaint 

on the basis that the Attorney General's objection of 

July 6 was untimely; thereafter this Court was asked by 

plaintiff to reconsider the Court's ruling of September 29. 

The September 29 ruling provided, inter alia, the followings 

Plaintiff merely offers the Executive Order to 
demonstrate that Monday, July 5, as a 'federal 
holiday,' citing the Executive Order without more. 
No evidence of the number of percentage of federal 
employees excused under the Executive Order was 
presented to the Court. The Court is of the opinion 
that plaintiff has failed in its burden to establish 
an exception to the rule [that a limitations period 
should be allowed to run unmolested unless an 

exception 1s demonstrated] and accordingly the 
objection was untimely. 

 



  

This Court remains of the opinion that plaintiff 

failed at trial and in its post-trial brief to demonstrate 

that July 5, 1976, was a federal holiday for employees of 

the Justice Department; however, after considering the 

Government's Rule 59, Fed. R. Civ. P., motion and in taking 

cognizance of the affidavits filed therewith, the Court is 

now satisfied that July 5 was a federal holiday for employees 

of the Justice Department, making July 6 the next full busi- 

ness day for the Attorney General which under his reomiatlonk 

would make the ebiantion timely. (We assume the validity of 

the regulation for the purpose of this case, but express no 

opinion thereon.) Accordingly, the Court is of the opinion 

that plaintiff's Rule 59 motion is due So be granted to the 

extent that July 6, 1976 was the nent full business day for 

the Attorney General and his employees; therefore making the 

objection timely. 28 'C.P.R. § 51.3{(c). 

| | Since the Court, tr its opinion of Sepronbiey 29, 

did ot address several issues, 1h 4 Eon, necessary to i 

sO. | 

1. Ts the City of Sheffield, Alabama, a 

"pPOlitical subdivision" as defined by the Act 

and as reflected by the Act's legislative 

history? : | 

2. Did the. Attorney General's approval 

of the referendum have the force and effect of 

also approving the change from a Commission 

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to a Mayor-Council form of government? 

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This Court previously held that the City of Sheffield 

was covered by the Act, relying on Perkins v. Mathews, 400 U.S. 
  

379 (1971), but upon further analysis the Court is of ‘the   opinion that this was error. Perkins involved the City of 

canton, Mississippi, and the Court in a footnote without 

discussion stated that Mississippi and its subdivisions were 

covered. {400 U8. 379, n. 2) : 

All reported cases which the Court has found applying 

the Voting Rights Act to munteloniieies have involved either 

state legislative enactments clearly subject to the Act; such 

as 31d Robinson v. Pottinger, 512 P.24 775 (5th Cir. 13975), and 
  

  

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United Statss vv. Cohan, 358 F. Supp.-1217-(8.0.-Ga.. 1972); or 
  

they involved cities which do in fact conduct or supervise 

registration of voters. Of the latter type are Perkins Vv. 
  

  

of Elections, 393 U.S. 544 (1969) (see Code of Va. Tit. 24.1, 

a | 1 
§§ 43-46, Cum. Supp. 1976); United States v. Garner, 349 F. Supp. 

  

  

1054 AN .D. Ga. 1972) (see Ga. Code Ann. § 34A-502); and Beer Vv. 

  United States, 425 U.S. 130 (1976) (see La. Rev. Stat. §§ 18:270.101, 

18:270.105, and 18:207.301, Cum. Supp. 1975). : 

  

_1/ The statement in Allen that § 5 applles to city as well as 

county governments is consistent with § 1973 £(c) (2) in that, 

"In Virginia, cities and counties are mutually exclusive." 

Holi v. Richmond, "459 F.24 1033 (4th Cir. 1972). 

  

  

_2/ The government of the City of New Orleans and Parish of 

Orleans is sui generis in the State of Louisiana. The bounda- | 

ries of the city and the parish are coextensive, and there is no 

general administrative body for the government of the parish, 

the City Council of New Orleans performing the duties which are 

performed in other parishes by the parochial governing bodies. 

Registration of voters is conducted by the Registrar of the Parish 

of Orleans, who is, however, appointed by the City Council, 

which provides that official with office space and pays that 

portion of his salary which is in other parishes the responsibility 

of the parish authorities. : 

  

 



  

Designated states and subdivisions under the Act are 

subject to the pre-clearance procedures of section 5, when 

they "enact or seek to administer any voting qualification 

or prerequisite to Sito, or standard, practice or procedure 

with respect to voting different from that in force or effect 

on November-1l, 1964. . ." 42 U.8.C.5. 1973{c), as‘ amended. 

The Attorney General's designation of a state implies his 

designation of its political subdividions. 1965 U.S. Code 
  

Congressional and Administrative News, pp. 2456, 2561. 
    

Political subdivision is clearly defined in the Act, 42 U.S.C. 

§ 1973" L2({c) (2): "The term political subdivision' shall mean 

any county or parish, except that where registration for 

voting is not conducted under the supervision of a county or 

parish, the term shall include any other subdivision of a 

State which conducts registration for voting." 

The legislative history of this section makes it clear 

that this section was intended as a restriction on the coverage 

of the Act. 

Clause (2) of this subsection is new. 
It defines 'political subdivision' as a 
county or parish except that in those 
instances where registration is not con- 
ducted under the supervision of a county 
or parish, the term includes any other sub- 
division of a State which conducts registra- 
tion for voting. This definition makes 
clear that the term 'political subdivision’ | 
is not intended to encompass precincts, | 
election ‘districts, or other similar units : | 
when they are within a county or parish which 
supervises registration for voting. 

1965 U.S. Code Congressional and Administrative News, p. 2569; 
  

see also p. 2464. : | 

Under Alabama law municipalities neither conduct 

nor supervise registration of voters. All registration powers 

  are vested in County Boards of Registrars which furnish voter 

lists to municipalities. Tit. 17, § 21, Code of Alabama | 

 



  

(Recomp. 1958); see also Tit. 37, § 34(35)''Code of Alabama 

(Cum. Supp. 1573). Accordingly, this Court is of the 

opinion that the City of Sheffield is not covered by the 

* Voting Rights Act of 1965. It is a political unit, but 

within a county which supervises registration for voting; 

therefore, falling outside the definition of "political   
subdivision" as defined by the Act and the legislative 

history thereof. 

a This Court is further of the opinion that by approv- 

ing the referendum. the Attorney General in fact approved the 

change to the Mayor-Council form of government notwithstanding 

his caution to the City that the change was also subject to 

pre—-clearance. 

After the referendum was adopted, the Attorney General 

objected to the new form of government on the basis of the at- 

large method of electing the City Councilmen and indicated a 

pactatanes for separate election districts. He did not object 

to the at-large method of aldsting the Mayor oF the Council 

President. Prior to approval of the referendum the Attorney 

General was made aware that under the law of Alabama, 1f the 

referendum was adopted, the City would be obliged to follow 

the directive of Tit. 37, 426, Code of Alabama (Recomp. 

1958), which provides, inter alia, for the at-large election 

of Mayor, Council President and City Councilmen. The Attorney | 

General's RRR of the referendum may be characterized 

in one of the two ways. First, his approval of fhe refetendvn 

carried with it an implicit approval of the new government. 

Secondly, his approval of the referendum terminated his 

authority under the Act to further oversee the results of 

the referendum, since the new government thereby adopted is 

mandated by Alabama law. 

 



  

Accordingly, it is the opinion of this Court that 

the Attorney General's approval of the referendum, paired 

with his actual or constructive knowledge of Tit. 37, 

§ 426, precludes further objection to the City's new form 

of Government. 

Other courts have called the Attorney General's 

authority into guestion in voting right cases. .The case of | 

Jenness v, Little, 306 FP. Supp., 925, 927 (N.D. Ga. 1969) 
  

(three-judge district court, involved an attack on the 

validity of a municipal ordinance requiring the payment of 

qualifying fees by candidates for municipal offices. The 

Court in Jenness held the ordinance unconstitutional but   

rejected a contention that it required the Attorney General's 

approval: 

The contention that the new ordinance estab- 
lishing a new schedule of fees had to likewise be 
approved by the Attorney General is rejected. 
This ordinance was adopted pursuant to Georgia 
Municipal Election Code of 1968, supra, which i 
expressly permitted the exaction of qualifying 
fees (Ga.Ann.Code Supp. § 34A-904) and that Act | 
has been approved by the Attorney General in 
compliance with the Voting Rights Act, supra. : 

This Court is likewise of the opinion that the 

Attorney General may not, by authority of.the Act, continue 

to oversee the results of a "change" he has approved. 

In the instant case, the at-large method of elect- 

ing City Councilmen followed as a matter of law under Tit. 37, 

§ 426, when the voters of the City adopted the referendum. 

The Attorney General approved the change in form of govern- 

ment and now wishes to object to the specific effects which 

are required under Alabama law. The Attorney General's approval 

of the change in form of government in which the features now 

found objectionable were incorporated as a matter of law 

exhausted his authority under the Voting Rights Act to 

 



  

further oversee the consequences of that approval. By 

approving the referendum the Attorney General at least 

implicitly approved the change that followed. The Act is 

not designed to AZ 1ow an uninterrupted surveillance by the 

Attorney General of "changes" he has approved. Challenge 

of a "change," approved by the Attorney General, is given 

to private action by those with standing. NAACP v. New 
    

York, 413 U.S. 345, 352 (1973); Beer v. United States, 425 
  

U.S55A30,-96 S::Ct+>1357,;,-1364+(1976).. 

Accordingly the Government's request for an amend= 

ment to the Order of September 29, 1976 will be granted 

to the extent that the Court now considers the July 6 objec- 

tion as having been timely interposed; but, for the reasons 

stated herein, the Government's request for injunctive 

relief is still due to be denied and the complaint dismissed. 

Coo 
United States Cifcuit Judge, 

Concurring Specially, Opinion attached. 

Shand Tl dtts, 
United States District Judge 

HH oor, 

  

  
  

  

United States District Judge 

Dated: Lecemdon 13 7 900 

LJ 

  

 



  

CA No. 76-M-1086-NW -- UNITED STATES OF AMERICA, Plaintiff, v, 

BOARD OF COMMISSIONERS OF SHEFFIELD, ALABAMA: F.E. DRAPER, 

Member and President; and B.F. WALDEN and DONALD F. RUGGLES, 

Members, Defendants. 

RIVES, Circuit Judge, concurring specially: 

I have joined in the separate "Order" because I concur 

Sh that part of the Opinion holding that the City of Sheffield 

is not a "political subdivision" as defined by the Act and its 

legislative history. 1 40 not concur in that part of the 

Opinion holding that the Attorney General's failure to object 

to the referendum had the force and effect of approving any 

future changes Souhd idesirable for the implementation of the 

referendum. It seems to me that the Attorney General's letter 

of May 23, 1975 expressly conditioned his failure to object to 

the holding of the referendum by stating that the implementation 

or enforcement of the change in form of government is subject to 

the pre-clearance requirement of Section 5 of the Voting Rights 

Ack. 

 



  

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT 
: OF ALABAMA, NORTHWESTERN DIVISION 

UNITED STATES OF AMERICA, ) 

Plaintiff ) 

Ve ) CIVIL ACTION NO. 76-M-1086 

BOARD OF COMMISSIONERS OF ) FILED IN CLERK'S OFFICE 
SHEFFIELD, ALABAMA; F. E. [NORTHERN DISTRICT OF ALABAMA ] 
DRAPER, Member and President; ) ; 
and B. F. WALDEN and DONALD fren rst 
F. RUGGLES, Members, ) DEC 131976 

Defendants ) JAMES E. VANDEGRIFT, CLERK 
UNITED STATES DISTRICT COURT 
BY 

, ORDER 

This cause came before the Court on the Government's 

Rule 59 Fed. R. Civ. P. motion for reconsideration and amend-— 

ment to this Court's Order of September 29, 1976. The Court 

has considered the motion, briefs of both parties, pleadings, 

affidavits, and the applicable statutory and case law and in 

accordance with the Memorandum Opinion filed EE IR 

herewith is of the opinion that the Government's motion is 

due to be granted to the extent that the Attorney General's 

July 6 objection was timely interposed, but that the injunctive 

relief sought is due to be denied and the complaint dismissed. 

Accordingly, it is ORDERED, ADJUDGED and DECREED - | | 

that the Government's Rule 59 motion be and the same hereby - | 

is granted and the previous opinion and order of the Court is 

witha tan. ; : 

Further, it is ORDERED that the Government's 

application for an injunction be and the same is denied and 

the complaint is dismissed. 

  
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ATT ———"= 

  

Costs are taxed to the Government. 

Done this 13% day of December, 1976. 

ONITED STATES CIRCUIT JUDGE 

Cond Ltda 
UNITED STATES DISTRICT JUDGE 

/ 4 A a Ctrl ral 
UNITED STATES DISTRICT JUDGE