Brief in Support of Defendants' Motion to Enter Judgment

    IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

  

WILEY L. BOLDEN, et al., 

Plaintiffs, 

VS. CIV1iL ACTION NO. 75-297-P 

CITY OF MOBILE, et al., 

Defendants. 

BRIEF IN SUPPORT OF DEFENDANTS' MOTION 
: TO ENTER JUDGMENT 
  

I. INTRODUCTION 

This brief is filed by the Defendant City of Mobile, 

et al., in support of its Motion to Enter Judcment. Defendants 

maintain that all issues in this case have been finally settled 

and that no further proceedings other than the entry of a 

judgment of dismissal are appropriate. 

II. ARGUMENT 

  

A. Duty of Court on Remand 

‘The duty of a lower court upon remand of a decision from 

a higher court is clear. As stated by Professor Moore: 

The Supreme Court stated the general 
rule at an early date in this.manner: 

"Whatever was before the court, and is 
disposed of, is considered as finally 
settled. The inferior court is bound 
by the decree as the law of the case; 
and must carry it into execution, 
according to the mandate. They cannot 
vary it, or examine it for any other 
purpose than execution; or give any 
other or further relief; or review it 
upon any matter decided on appeal for 
error apparent; nor intermeddle with 

it, further than to settle so much as 
has been remanded." 

1B Moore's Federal Practice, § 0.404 (10) p.573 n.l5 (citation 
  

omitted). 

 



  

This rule has been recognized many times by all of the 

circuits. For example, a good discussion of the execution 

of mandates appears in the case of Paull v. Archer-Daniels- 
  

Midland Co., 313 F.2d 612 (8th Cir. 1963). 
  

When a case has been decided by 
this court on appeal and remanded 
to the District Court, every question 
which was before this court and dis- 
posed of by its decree is finally 
settled and determined. The District 
Court is bound by the decree and must 
carry it into execution according to 
the mandate. It cannot alter it, 
examine it except for purposes of 
execution, or give any further or 
other relief or review it for apparent 
error with respect to any question 
decided on appeal, and can only enter 
a judgment or decree in strict compli- 
ance with the opinion and mandate. 

A mandate is completely controlling 
as to all matters within its compass 
but on remand the trial court is free 
to pass upon any issue which was not 
expressly or impliedly disposed of on 
appeal. Since, however, a final judg- 
ment upon the merits concludes the 

parties as to all issues which were 
or could have been decided, it is 
obvious that such a judgment of this 
court on appeal puts all such issues 
out of reach of the trial court on the 
remand of the case. That court is 
without power to do anything which is 
contrary to either the letter or spirit 
of the mandate construed in the light 
of the opinion of this court deciding 
the case. If a judgment or decree of 
this court which disposes of a case 
upon the merits has become final, no 
purpose can be served by considering 
whether it is right or wrong. A judg- 
ment which is wrong, but unreversed, 
is as effective as a judgment which 
is right. 

  

  

  

  

  

  

  

  

  

Id. at 617-18 (emphasis added). Accord, In Re Sanford Ford & 
  

Tool CO.» 160 U.S. 247, 255 (1895): Pirth v. United States, 
  

  

554 F.24 950 (9th Cir. 1977). 

B. Argument of Plaintiffs 
  

Contrary to these accepted principles, Plaintiffs solicit 

this court to ignore both the letter and spirit of the Surpreme 

Court's mandate; their argument is accurately categorized as 

 



  

Jah TE 

an extraordinary effort to circumvent the Supreme Court's 

decision in the case. They argue that this court is allowed 

to -- is required to -- re-review the identical evidence in 

this case which was before the Supreme Court and reaffirm the 

same judgment that a majority of the Supreme Court reversed, 

or, alternatively, grant a new trial to Plaintiffs to attempt 

again to prove what they failed to prove the first time. 

Defendants firmly disagree. As noted in Paull and the 

other authorities referred to above, "a final judgment upon 

the merits concludes the parties as to all issues which were 
  

or could have been decided." 313 F.2d at 617 (emphasis added). 
  

Therefore, to determine what issues, if any, were left open 

by the Supreme Court it is necessary to review the issues 

before the Supreme Court, the arguments made to it, and the 

holdings it made. 

C. Issues Before Supreme Court 
  

As stated in Defendants' Jurisdictional Statement to 

the Supreme Court at page 4, one of the issues was: 

Whether the holdings of the Courts 
below conflict with the constitutional 
principles established by this Court 
in Whitcomb v. Chavis, 403 U.S. 124, 
White v. Regester, 412 U.S. 755, Wash- 
ington v. Davis, 426 U.S. 229, and 
Village of Arlington Heights v. Metro- 
politan Housing Development Corp., 
429 U.S. 2527 

  

    

  

  

  

Similarly on page 3 in Defendants' brief, one of the issues 

was stated as: 

Whether the holdings of the Courts 
below conflict with the constitutional 
principles set forth by this Court in 
Whitcomb v. Chavis, 403 U.S. 124, White 
v. Regester, 412 U.S. 755 (no constitu- 
tional right to proportional representa- 
tion by race), Washington v. Davis, 426 
U.S. 229, and Village of Arlington Heights 
v. Metropolitan Housing Development Corp., 
429 U.S. 252 (mere passive knowledge of 

discriminatory effect of status guo 
insufficient proof of discriminatory 
intent). 

    

  

  

  

  

  

Plaintiffs' brief at pages 1 and 2, stated the issues as 

follows: 

 



  

1. Should this Court overturn the 
concurrent findings of fact of the two 
courts below that Mobils's at-large 
election system is maintained and operated 
for the purpose of discriminating against 
black voters? 

, 2. Did the district court clearly 
err in finding that Mobile's at-large, 
elections "operate to minimize or cancel 
out the voting strength" of blacks in 
violation of White v. Regester, 412 U.S. 

755 £1973), and Whitcomb v. Chavis, 403 
U.S. 124 (1971)? : 

  

  

3. Does Mobile's at-large election 
system violate the Fifteenth Amendment 
or section 2 of the 1965 Voting Rights 
Act? ; 

Similarly, on page of 1 their Motion to Affirm, Plaintiffs 

identified the following as issues for resolution: 

l. Were the concurrent factual findings 
of the courts below, that Mobile's at-large 
election plan is maintained for the purpose 
of discriminating against black voters, 
clearly erroneous? 

2. Should the decision of the Court 
of Appeals be affirmed on the alternative 

ground -- considered but not relied on by 
a majority of the Fifth Circuit panel -- 
that Mobile's at-large election plan had 
the effect of disenfranchising black voters 
in violation of White v. Regester, 412 U.S. 
755 (1973)? 
  

Finally, the Supreme Court itself, in the plurality opinion, 

stated that the "question in this case is whether this at- 

large system of municipal elections violates the rights of 

Mobile's Negro voters in contravention of federal statutory 
  

  

or constitutional law." 48 U.S.L.W. at 4437 (emphasis added) . 

D. Holding of Supreme Court 
  

The holdings of the Supreme Court can be succintly 

summarized as follows. The four justice plurality first 

held: (1) section 2 of the Voting Rights Act has the same 

effect as the fifteenth amendment; 1/ (2) "racially discrimina- 

tory motivation is a necessary ingredient of a Fifteenth Amend- 

  

1/ 48 U.8.1.W. at 4437, 

 



  

ment violation;" 2/ (3) and the Plaintiffs failed to prove 

3/ 
such discriminatory motivation. — 

Turning to the fourteenth amendment claim the plurality 

held that proof of all fourteenth amendment equal protection 

claims, including vote dilution claims based on at-large 

4/ 
elections, require proof of "purposeful discrimination," = 

proof of "disproportionate effects alone" 5/ not being enough. 

48 U.S.L.W. at 4439. Specifically, at-large elections violate 

the fourteenth amendment only if "their purpose [is] invidiously 

to minimize or cancel out the voting potential of racial or 

6/ 
ethnic minorities.” —~ 

To prove such a purpose it is not enough 
to show that the group allegedly discrimi- 

nated against has not elected representa- 
tives in proportion to its numbers. A 
plaintiff must prove that the disputed 
plan was "conceived or operated as [a] 
purposeful device[] to further racial 

discrimination. 

48 U.S.L.W. at 4439 (citations omitted). 

The last quoted sentence shows that an electoral plan 

can be challenged either because HE was originally intended 

("conceived") to discriminate or because, even though originally 

created without discriminatory purpose, it has come to Bs Hain- 
Xx 

tained ("operated") for a discriminatory purpose. In either 

case, the plurality made perfectly clear that proof of dis- 

criminatory motivation was essential and could not be established 
  

by proof of discriminatory effect alone. 

Next, and most significantly, the plurality opinion 

after announcing the correct legal principles, held that 

  

2/ 48 U.S.L.W. at 4438. 

3/ "1Tlhe District Court and Court of Appeals were in error 

in believing that [Plaintiffs proved] the appellants invaded 

the protection of that Amendment in the present case." 48 

v.s.L.W. at 4438-39, 

4/ 48 U.S.L.W. at 4439. 

5/ 48 U.S.L.W. at 4439. 

6/ 48 U.S.L.W. at 4439. 

 



  

it is clear that the evidence in the 
present case fell far short of showing 
that the appellants 'conceived or 
operated [a] purposeful device[] to 
further racial discrimination.’ 

  

  

48 U.S.L.W. at 4440 (emphasis added). In other words, having 

set forth the Plaintiffs' burden of proof on the immediately 

preceding page of the opinion (48 U.S.L.W. at 4439), the 

plurality then proceeded to record the failure of the Plaintiffs 

to meet that burden. 

Finally, the plurality held that the missing proof of 

purposeful discrimination could not be supplied by the so-called 

Zimmer standard or the foreseeability test. 48 U.S.L.W. at 

4440-41 and 4440 n.l17, respectively. Rather, a plaintiff must 

show that the challenged action was "at least in part 'because 

of' not merely 'in spite of,' its adverse effects . . . . 

48 U.S.L.W. at 4440 n.l7. 

Each of these legal principles and fact findings was 

supported by at least a majority of the justices. Justice 

Marshall agreed with the plurality that the standards under 

§ 2 of the Voting Rights Act and under the fifteenth amendment 

were the same (48 U.S.L.W. at 4449 n.2), although fe disagreed 

with what that standard was. Justice Stevens, although on’ 
\ ~ - 

somewhat different legal reasoning, 1/ agreed that Plaintiffs 

had failed to prove any violations of their "constitutional 

rights." 48 U.S.L.W. at 4443. 

  

7/ Defendants suggest that there is not as much distinction 

in the views of the plurality and Justice Stevens as might at 

first appear. Justice Stevens states "that a proper test 

should focus on the objective effects of the political deci- 

sion rather than the subjective motivation of the decision 

maker," (48 U.S.L.W. at 4445) and argues as an example that 

a system of government having an "adverse impact on black 

voters plus the absence of any legitimate justification for 

the system" would be found invalid while one "supported by 

valid and articulable justifications cannot be invalid simply 

because some participants in the decisionmaking process were 

motivated by a purpose to disadvantage a minority group." 

48 U.S.L.W. at 4445-46. 

Defendants suggest that the plurality would likely reach 
the same conclusion in similar circumstances applying the 
"subjective intent" test. In the face of proved knowledge 
of significant adverse impact, the failure of a defendant 
to articulate a legitimate, nondiscriminatory justification 
for continued adherence to the practice would likely lead 
the searcher for subjective intent to conclude that the 
defendant acted "because of" and not just "in spite of" the 

discriminatory consequences of the practice. Cf. 48 U.S.L.W. 

[Continued on page 7] 

 



  

Even one of the dissenters, Justice White, appeared 

to agree that proof of discriminatory intent was required 

although he believed Plaintiffs had met that burden. Justice 

Blackmon, concurring, pretermitting the question of the 

correct legal standard, also found the proof of purposeful 

discrimination sufficient. Justices Marshall and Brennan, 

dissenting, also believed that discriminatory purpose had 

been shown although they argued that it was not required 

under their view of the correct legal standard. 

Finally, despite Plaintiffs' ungrounded assertion to 

the contrary, a majority of the justices (the four man plurality 

and Justice Stevens 3/7 clearly rejected Zimmer, and of the 

other four justices only Justice White and Justice Brennan 

concurring with him even arguably supported its approach. 

Neither Justice Blackmon's concurrence nor Justice Marshall's 

lengthy dissent even cited Zimmer. 

  

[Footnote 7 continued from page 6] 

at 4440. Likewise, the plurality would probably agree with 
Justice Stevens that even proof of some involvement of illicit 
motive in a decisionmaking process would not invalidate that 
decision unless the illicit consideration rose to the level 
of a "substantial" or "motivating" factor within the meaning 
of Mt. Healthy County Board of Education v. Doyle, 429 U.S. 
274, 287 (1977), thus shifting to the defendant the burden of 
demonstrating that the same decision would have been made even 
absent consideration of the illicit consideration. This con- 
clusion would certainly be consistent with the holding in 
Village of Arlington Heights v. Metropolitan Housing Develop- 
ment Corp., 429 U.S. 252 (1977), where the Supreme Court in 

view of the presence of legitimate, nondiscriminatory reasons 
for a refusal to change zoning policies found insufficient 
proof of racial motivation despite clear adverse impact and 
evidence of some racial motivation by some participants in the 

process. 

  

  

  

In any event it is clear, and Plaintiffs concede, that 
to the extent there is a difference, the Stevens standard of 

proof is more stringent for the Plaintiffs than is the standard 

Of the plurality. 'Plaintiffs' Brief: to the Fifth Circuit on 
Remand at 4. 

8/ 48 U.S.L.W. at 4441. 

9/ 48 U.8.L.W. at 4445, 

8/ 

 



  

Therefore, based on these holdings by the Supreme Court, 

there is no legitimate basis for further proceedings in this 

case. The four man plurality, concluding that the correct 

legal standard included the requirement of a showing of pur- 

poseful discrimination, viewed Plaintiffs' evidence, and opined 

that it fell "far short" of proving the requisite purposeful 

discrimination. And, Justice Stevens, in a separate opinion, 

announced a standard that would require a stricter standard 

of proof than the plurality imposed. Having had the opportunity 

to present any evidence in an unrestricted manner and having 

failed to meet the plurality standard, Plaintiffs fell even 

further short of meeting Justice Stevens' requirements. 

Similarly, the dissenting justices offer no help to 

Plaintiffs in this regard since Justices Brennan, Marshall, 

and White concluded that, notwithstanding their views concern- 

ing what constituted the appropriate standard, the plurality's 

requisite intent had been proved; Justice Blackmon reached a 

similar conclusion. In this conclusion, however, they were 

simply out-voted. It is therefore clear that the United States 

Supreme Court thoughtfully considered Plaintiffs' evidence, 

applied the correct legal standard to such evidence, and con- 

cluded that such evidence was insufficient to carry the Ei. 

for Plaintiffs. In other words, Plaintiffs lost. They are 

not entitled to another opportunity at this juncture. 

E. The Supreme Court's Evidentiary Findings 
  

Plaintiffs argue, based primarily on the dissenting 

opinion of Justices Marshall and White, 10/ that the Supreme 

  

Court intended that the lower courts be free on remand to hold 

that Plaintiffs won after all, or should at least have a 

second bite at the apple in a new trial. Either option is 

manifestly inconsistent with established legal principles as 

  

10/ Defendants find no indication in the concurrence of Justice 
Blackmon that he contemplated further proceedings on remand. 

 



  

well as with the majority view of the Supreme Court. 

When errors of law have been made in the lower court 

a two step corrective process must occur. First, the correct 

legal standards must be articulated by the appellate court. 

Second, the evidence in the record must be reassessed in 

light of the correct legal standards and new fact findings 

made. In some cases only the first step is taken by the 

appellate court and the cause is remanded to a lower court 

to perform the second. See Malat v. Riddell, 383 U.S. 569, 
  

572 (1966). 

Such a course, however, was not followed by a majority 

of the Supreme Court in this case. To the contrary, the 

majority (the four justice plurality and Justice Stevens), 

after identifying the controlling legal principles, went 

further, reviewed the evidence in the case, and held that 

it did not prove the requisite intent. Justice Stewart for 

the plurality stated unequivocally: 

[I]t is clear that the evidence in the 
present case fell far short of showing 
that the appellants "conceived or 
operated [a] purposeful device[] to 
further racial discrimination.” a, 

  

    

48 U.S.L.W. at 4440 (emphasis added). Similarly, Justice, 

Stevens said, "I agree with Mr. Justice Stewart that no 

violation of [Plaintiffs'] constitutional rights has been 

demonstrated . .o.' ." 48 U.S.L.W. at 4443. 

Contrary to the assertion of Plaintiffs, the finding 

by the plurality was not just a holding that the lower court's 

Zimmer analysis was insufficient to supply the requisite proof 

of intent, although the plurality most assuredly did also 

hold that. Rather, Justice Stewart's evidentiary finding for 

the plurality is made before any consideration had been given 

to the Zimmer analysis and unequivocally refers to "the evidence 

in the present case" in its entirety. The plurality's subse- 

 



  

- 10 - 

quent review of the Zimmer analysis and the foreseeability 

test, as well as the evidence of adverse impact and official 

unresponsiveness, is not a limitation on this earlier finding, 

but rather a holding that such analyses and evidence could not 

supply or substitute for that missing proof of discriminatory 

motive. 

Thus, after declaring the correct controlling legal 

principles, the majority itself took the sooond corrective 

step by reviewing the evidence in the case, applying the 

correct legal principles, and holding as a fact that purpose- 

ful discrimination had not been proved. 

It is this later holding of the Supreme Court that 

Plaintiffs ask this court to ignore -- not only to ignore 

but to, in effect, reverse. 

F. Errors in Plaintiffs! Fifth Circuit Brief on Remand 
  

To support this remarkable effort, Plaintiffs asserted 

several arguments in their Fifth Circuit brief on remand. 

They argue that the Supreme Court "insisted on" misreading 

the prior panel opinion (Brief at l, 10) and was stricken , 

by an "Jlnabllity t0fsee itis] ..'.cconclusion. . . ." Brief’ 

at 12. They argue that the Supreme Court misunderstood the 

District Court's opinion and was "unable" to understand its 

reasoning. Brief at 13. They argue that the Supreme Court 

misinterpreted some evidence (Brief at 12) and "ignore[d]" 

other evidence (Brief at 2, 12). Obviously, these arguments 

simply represent Plaintiffs' belief that the Supreme Court 

erred in its decision. 

These arguments are addressed to the wrong court and 

come too late. They are, in fact, irrelevant. This court does 

not have the power to hear such arguments or decide such 

issues. This court cannot review the evidence in the record 

 



  

- 11 - 

and say that it proves the requisite intent when a majority 

of the Supreme Court reviewed the same evidence and held that 

it did not. 

As stated by the Ninth Circuit in Atlas Scrapper & 
  

Engineering Co. v. Pursch, 357 F.2@ 296 (9th Cir. 1966), 
  

cert. genied, 385 U.S. 846:   

The [lower] court is bound by the decree 
of the law of the case; and must carry 
it into execution, according to the mandate. 
That court cannot vary it, or examine it 
for any other purpose than execution; or 
give any other or further relief; or review 
it, even for apparent error, upon any matter 

decided on appeal; or intermeddled with it . . . 

  

  

Id. at 298 (emphasis added). 

Or, as the court in Paull noted: 

That [lower] court is without power to 
do anything which is contrary to either 
the letter or spirit of the mandate 
construed in the light of the opinion 
of this court deciding the case. If a 
judgment or decree of this court which 

disposes of a case upon the merits has 
become final, no purpose can be served 
by considering whether it is right or 
wrong. A judgment which is wrong, but 
unreversed, is as effective as a judg- 

ment which is right. 

  

  

  

  

  

  

313 F.2d at 617 (emphasis added). 

Plaintiffs' additional argument that the Supreme Court 

went astray by failing to consider or properly interpret 

evidence outlined on pages 15-22 of their Brief, which they 

say proved discriminatory intent, fares no better. All of 

that evidence was in the record reviewed by the Court, a 

record which was held to fall "far short" of making the neces- 

sary showing. 48 U.S.L..HW. at 4440. In addition, most of their 

present argument was advanced by Plaintiffs in their brief to 

the Supreme Court, or at oral argument, or both. Compare 

Plaintiffs' Supreme Court brief pages 18-36 with pages 14-22 

of their Fifth Circuit brief, both of which, for example, contain 

a quotation of the testimony of Senator Robert Eddington so 

heavily relied upon by Plaintiffs. Much of this evidence was 

 



  

- 12 - 

expressly discussed by the plurality opinion, and implicitly 

considered by Justice Stevens, and found wanting. 11/ In 

light of the Supreme Court holding, this court is not free 

to disagree. 

- The Supreme Court, considering the evidence in support 

of the maintenance of the Commission form of government in 

Mobile (which requires the retention of at-large elections), 

also said: "[W]lhere the character of a law is readily explain- 

able on grounds apart from race, as would nearly always be true 

where, as here, an entire system of local governance is brought 

into question, disproportionate impact alone cannot be decisive, 

and courts must look to other evidence to support a finding 

of discriminatory purpose." 48 U.S.L.W. at 4440. This state- 

ment is then followed in the very next paragraph by the finding 

that "the evidence in the present case fell far short of [making 

the necessary} showing . . . ." 48 U.S.L.W. at 4440. 

It is our submission, then, that the Supreme Court 

considered all of the Plaintiffs' evidence and found it 

wanting absolutely. Moreover, a Plaintiff would have to 

produce substantially more evidence of discriminatory intent 

than was produced in this case to undo an entire form of ° 

government, and overcome what the Supreme Court concluded 

was the facial neutrality and apparent legitimacy of the 

Mobile system. 

G. There Is No Basis For Further Proceedings 
  

To summarize, a majority of the Supreme Court held both 

(1) that invidious intent must be shown to prove violation 

of the fourteenth amendment, fifteenth amendment, and § 2 of 

  

11/ The fact that some of the evidence argued in Plaintiffs’ 

brief was not expressly discussed in the majority opinion is 

irrelevant. Obviously, there is no requirement that the Supreme 

Court or any other court discuss in its opinion every single 

item of evidence in the record. When a court holds that the 

evidence in the case fails to prove an essential requirement, 

that holding covers every item in the record whether or not 

expressly discussed. And if the evidence was not in the record 

it is obviously improper for the Plaintiffs to argue it here. 

 



  

- 13 - 

the Voting Rights Act and (2) that the evidence in this case 

fails to prove such intent. Given those holdings, the only 

remaining question is what issues, if any, are left open to 

this court on remand. 

Where a plaintiff has put on his case, and where an 

appellate court subsequently holds that the evidence pre- 

sented fails to prove that case, the obvious next step is to 

enter judgment in Defendants' favor. Plaintiffs here have 

had their chance to prove their allegations, and they failed. 

Defendants know of no principle of law that entitles Plaintiffs 

who have failed to present sufficient evidence to support the 

allegations of their complaint to thereafter be given a second 

chance to prove what they failed to prove the first time. 

Plaintiffs do not get new trials when the evidence they present 

is held to be insufficient. 

For example, the Fifth Circuit in the companion case 

of Nevett v., Sides, 571 PFP.24 209 (5th Cir. 1978), cert.   

denied, 48 U.S.L.W. 3750 (May 20, 1980), affirmed a holding 

that plaintiffs had failed to prove the required discrimina- 

tory motivation. Neither the Fifth Circuit in affirming the 

district court nor the Supreme Court in denying certiorari. 

allowed plaintiffs in Nevett a new trial to attempt again to 

prove what they failed to prove at the first trial. 

The Nevett case is indistinguishable from this one, the 

fact that it was the Supreme Court rather than the Fifth 

Circuit which held that Plaintiffs' proof was insufficient 

being legally irrelevant. iz/ If Plaintiffs are entitled to 

a new trial in this case, why didn't the Supreme Court grant 

a new trial to the plaintiffs in Nevett by vacating that 

judgment and remanding for further proceedings in light of 

Bolden v. City of Mobile? The clear message of the Supreme 
  

  

12/ If anything, a district court is more constricted in 
granting a new trial in a case reversed by the Supreme Court 
than in one reversed by itself. 

 



  

- 14 - 

Court is that -- at least on the two records before it —— 

at-large elections were validly adopted and validly main- 

tained. The Supreme Court did not intend that the district 

court in this case be affirmed (or the district court in 

Nevett be reversed) on some post-hoc alternate ground. 

Contrary to Plaintiffs' assertion, there was no inter- 

vening change in the law involved in this case. Washington   

v. Davis was decided before this case was tried. The district 
  

court and the prior panel opinion may have misinterpreted the 

law, but the majority Supreme Court opinion makes clear that 

their decision is merely an application of the principles of 

Washington v. Davis and Arlington Heights. 
  

  

The "intervening change of law" cases relied on by 

Plaintiffs in their Fifth Circuit brief are inappropriate. 

For example, Williams involved a district court opinion that 
  

addressed an alleged violation of the Equal Protection Clause. 

In between the decision of the trial court and appellate 

review, Washington v. Davis was decided. Accordingly, the 
  

Fifth Circuit properly remanded the case to the trial court 

for reconsideration in light of Washington v. Davis. In the 
  

Myers case, a new Supreme Court opinion was issued subsequent . 

to the district court's judgment, but before appellate review. 

As in Williams, the Myers court remanded the case for reconsidera- 
  

tion in light of the new Supreme Court decision. 

Nor is this a case where the district court improperly 

or unfairly limited the proof which Plaintiffs were allowed 

to put on. Plaintiffs were not restricted from putting such 

evidence in at trial, and Plaintiffs have argued at every 

stage of this litigation that the evidence they presented 

in fact proved discriminatory intent. Plaintiffs can hardly 

now claim that the district court denied them an opportunity 

to prove the intent which they have previously consistently 

argued they did prove. 

 



  

- 15 - 

On page 22 of its Fifth Circuit brief Plaintiffs argued 

that the district court "should be instructed on remand not 

to ignore the plurality's admonition to rule on the § 2 claim." 

This is a mystifying contention since the plurality held that 

§ 2 was identical to Plaintiffs' fifteenth amendment claim 

which failed from a lack of proof. 

That the remand was "for further proceedings" is certainly 

not an instruction that a new trial or equivalent proceedings 

be undertaken. Entry of a judgment for the Defendants, in 

conformity with the Supreme Court's decision, is a further 

proceeding. See Coleman v. United States, 405 F.2d 72 (9th 
  

Cir. 1968), cert. denied, 394 U.S. 907 (1969). The Supreme 
  

Court knows how to leave questions open for determination on 

remand if it chooses to do so. See United States v. United 
  

Continental Tuna, 425 U.S. 164, 182 (1976). 
  

A recent opinion rendered by the Fifth Circuit Court of 

Appeals offers additional support for Defendants' position 

regarding further proceedings. United States v. Uvalde 
  

Consolidated Independent School District, F.2d 

  

  

(Slip Opinion September 2, 1980). Although Defendants do .not 

agree with all said in that opinion, it contains a detalled] 

consideration of the Supreme Courk's Bolden decision, and 

strongly supports the City of Mobile's position concerning 

its meaning and effect with regard to what further proceedings 

are appropriate in this case. 

In an opinion ‘authored by Judge Rubin, the majority of 

the Uvalde panel (the third member, Judge Hill, concurred in 

the result) clearly reads the Bolden Supreme Court majority 

as holding not only that incorrect legal principles had been 

applied by the lower courts, but also that under the correct 

legal principles the evidence presented by the Plaintiffs 

 



- 16 - 

  

failed as a matter of proof to make the necessary factual 

showing. For example, Judge Rubin said: 

Thus, the [Bolden] plurality's 
rejection of the fifteenth amendment 
and § 2 claims in Bolden may rest 
entirely upon the conclusion that 
no discriminatory motivation was 
shown. 

  

  

Slip Opinion at page 9084 (emphasis added). 

In fact, the Uvalde opinion goes even further, suggesting 

that the Supreme Court's ruling in Bolden is more properly 

viewed as an evidentiary decision rather than as a legal one. 

The Uvalde panel concluded that the Supreme Court majority 

essentially agreed with the legal principles enunciated by 

the Fifth Circuit in Bolden, but disagreed that plaintiffs 

presented sufficient evidence to satisfy those legal standards. 

Judge Rubin said: 

Although only Justice White appears 
to have wholly adopted this court's 
reasoning in Bolden, a majority appears 
to agree with the legal principles set 
forth in our Bolden opinion but not 
with their application to the evidence 
presented. 
  

  

Slip Opinion at 9085 n.8 (emphasis added). The Uvalde opinion 

thereby illustrates that the Bolden majority found as a factual 

“ge 
matter that the evidence presented in this case did not prove 

a violation of the constitutional or statutory rights iis. 

the fourteenth amendment. £ifteernth amendment, or § 2 of the 

Voting Rights Act) of the Plaintiffs. Plaintiffs having had 

their day in court and having failed to carry their burden of 

proving the essential factual elements of their claim, this 

action is due to be dismissed. 

Finally, contrary to Plaintiffs' assertion, footnote 21 

in Justice Stewart's opinion (at 4441) is not an instruction 

by the plurality to grant Plaintiffs a new trial. Rather, 

it is simply an observation that although Plaintiffs in this 

case failed to prove the requisite intent, some other plaintiffs 

in a future case would not be precluded from making such an 

 



  

- 17 - 

effort. Obviously, when dealing with the issue whether a 

particular election system is being maintained for a dis- 

criminatory purpose, a finding of no such intent in the 

past does not preclude the possibility of proving that such 

an illicit intent has interceded into future legislative 

actions. 

Certainly, this cryptic dictum embedded in a footnote 

cannot be considered the creation of a heretofore unknown 

principle of law that a plaintiff failing to prove essential 

elements of his claim gets a new trial when the evidence 

presented is held on appeal to be insufficient. 

JII. CONCLUSION 

Reduced to its essence, Plaintiffs' argument is that 

"we did prove intent -- the Supreme Court could not or would 

not see it -- but we proved it." But that argument has been 

made to and rejected by the Supreme Court. Plaintiffs have 

had a full, fair chance to prove their case but according to 

the Supreme Court. they have failed to do so. Therefore, 

.this case is over; and the only further appropriate proceeding 

is to enter judgment in favor of the Defendants. \ 

  (A900 ted 
B M ARENDALL ’ JR -/ 

LL leds CC ads if TT 
  

WILLIAM C. TIDWELL, IIX 
P. Os: Box 123 

Mobile, Alabama 36601 

OF COUNSEL: 

HAND, ARENDALL, BEDSOLE, 
GREAVES & JOHNSTON 

BARRY HESS 

City Attorney, City Hall 
Mobile, Alabama 36602 

LEGAL DEPARTMENT OF THE 

CITY OF MOBILE 

 



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CERTIFICATE OF SERVICE 
  

I certify that I have on this 10th day of October, 1980, 

served a copy of the foregoing brief on counsel for all parties 

to this proceeding by United States mail, properly addressed, 

first class postage prepaid, to: 

J. U. Blacksher, Esquire 
Messrs. Blacksher, Menefee & Stein 

P. O. Box 1051 

Mobile, Alabama 36601 

Edward Still, Esquire 
Messrs. Reeves and Still 
Suite 400, Commerce Center 
2027 lst Avenue, North 
Birmingham, Alabama 35203 

Jack Greenberg, Esquire 
Eric Schnapper, Esquire 
Suite 2030 
10 Columbus Circle ; 
New York, New York 10019 

Honorable Wade H. McCree, Jr. 

Solicitor General of the 

United States 
Department of Justice 
Washington, D. C. 20530 

Drews S. Days, III, Esquire 
Assistant Attorney General 
Department of Justice 
Washington, D. C. 20530 

  

. ARENDALL, JR. 
Asoc |