Defendants-Appellants' Memorandum in Opposition to Plaintiffs-Appellees' Motion for Order Restoring Injunction

    IN THE 

. UNITED. STATES COURT OF APPEALS 

FOR THE PIFTHE CIRCUIT 

No. 76-4210 

WILEY L. BOLDEN, et al., 

Plaintiffs—Appellees, 

VS. 

CITY OF MOBILE, et al., 

Defendants—-Appellants. 

  

On Appeal From The United States District Court 

For The Southern District Of Alabama 

  

DEFENDANTS-APPELLANTS' MEMORANDUM IN OPPOSITION TO 

PLAINTIFFS-APPELLEES' MOTION FOR ORDER RESTORING INJUNCTION 

I. INTRODUCTION 

Plaintiffs attacked the constitutionality of the at-large 

election of city commissioners to the Mobile, Alabama city 

confiisstion government. By order of October 1, 1976, and 

judgment entered October 22, 1976, the district court sustained 

the contentions of the Plaintiffs and declared the City's 

existing commission government unconstitutional. 

 



® id » 

On March 9, 1977, the district court entered its 

  

remedial order abolishing the commission government and 

ordering a change to a mayor-council- system with nine council 

members elected from single-member districts. In addition, 

the district court ordered mayor-council elections for the 

new government to be conducted at the regularly scheduled 

time for City elections in August of this summer. 

On March 18, 1977, the City moved the district court 

to stay its orders of October 21, 1976, and March 9, 1977, 

pending resolution of the City's appeal now pending in the 

United States Court of Appeals for the Fifth Circuit. A 

hearing was held on this motion on March 23, 1977, at which 

time the City argued that the district court should stay its 

order and allow city commission elections to be held in August 

as scheduled. Plaintiffs, on the other hand, argued that the 

district court should order mayor-council elections to proceed 

in August. Neither party argued the third alternative of 

staying all elections. 

Pursuant to the district court's suggestion, both parties 

submitted supplemental briefs. Plaintiffs, in contrast to 

their position at the hearing on March 23, 1977, suggested in 

their supplemental brief that the court should as an alternative 

stay all elections pending appeal. 

 



  

On April 7, 1977, the district court granted the stay 

as requested by the City allowing city commission elections 

to be held in August. However, the district court ordered 

the City to continue making preparations for mayor-council 

elections so that if its opinion is affirmed on appeal such 

elections can occur "within a reasonable time thereafter." 

District Court'!s Order of April 7, 1977, at 7. 

Plaintiffs now ask this Court to vacate the stay granted 

by the district court and reinstate the injunction ordering 

mayor—-council elections in August. Alternatively, Plaintiffs 

argue that all elections be stayed pending appeal. 

IT. ARGUMENT 

The District Court Did 
Not Abuse Its Discretion 
In Staying Its Injunctive 
Relief Pending Appeal. 
  

Whether injunctive relief granted by a district court 

should be stayed pending appeal is a decision entrusted to 

the sound discretion of the district court. Wright & Miller, 

Federal Practice and Procedure: Civil § 2904, at 316. The 
  

district court's decision on the stay will be reversed only 

for an abuse of discretion. Beverly v. United States, 468 F.2d 
  

  

 



  

732,740 n.13 {5th Cir. 1972). 

The traditional considerations guiding the court in 

the exercise of its discretion are (1) the likelihood of 

success on the merits on appeal, (2) irreparable injury to 

the applicant, (3) lack of substantial harm to other parties, 

and (4) the public interest. E.g., Pitcher v. Laird, 415 F.2d 
  

  

743 (5th Cir. 1969); Belcher v. Birmingham Trust National 

Bank, 395 F.2d 685 (5th Cir. 1968); Wright & Miller, supra 

§ 2904, at 316. "If the court is satisfied that these 

considerations or other relevant considerations indicate that 
  

an injunction should be stayed pending appeal, a stay will be 

granted." Wright & Miller, supra § 2904, at 317 (emphasis 

added) . 

Here, the district court, which is well versed in the 

"intensely local" factors of this case, exercised its discre- 

tion to grant the stay. The district court is intimately 

familiar with the facts and circumstances of this intricate 

and complex case, a case that has continued for almost 2 years 

and that required six full trial days. The political nature of 

this case along with the district court's own first-hand knowledge 

of the local political and governmental scene place it in a 

unique position to accurately judge the hardship, confusion, 

and disruption that would be occasioned by either granting or 

denying the stay. Consideration of these factors along with 

 



the district court's order granting the stay clearly show 

no abuse of discretion by the district court. 

Concerning the existence of vel non of irreparable 

injury, the district court said: 

The city claims the actual election and 
institution of the mayor-council form 
of government would create great confusion 
and disruption if the appellate court 
reverses. This court agrees. . . . 

Order of April 11, 1977, at 3-4 (stating in detail the 

reasons for its conclusion). 

It is apparent that less disruption will be caused by 

granting the stay than by denying it. As aptly stated by 

the district court: 

In the event of a reversal, a second election 
would not be required and the form of govern- 
ment would not have been changed from commis- 

sion to mayor-council and back to commission 
forms of government. In the event of an 
affirmance, a second election will be required 
but the city will be required to change only 
to a mayor-council plan from a commission form 
of government. 

Order of April 7, 1977, at 4. Clearly, one change (which 

cannot be avoided if the district court's opinion is affirmed) 

is far less disruptive than two changes, which can be avoided, 

even if the district court is affirmed,by upholding the stay.  



As recognized by the district court, the harm that would 

result to the City of Mobile and its people from denial 

of the stay simply cannot be undone" if the decision is 

reversed. Order of April 7, 1977, at 4. 

Despite this factual setting underlying the district 

court's order, Plaintiffs contend that the failure of the 

district court to go on record as stating that its decision 

will likely be reversed on appeal is an absolute bar to 

granting of the stay. This argument is patently frivolous. 

As recognized by the district court, it is unrealistic to 

expect any court to decide a case one way and then certify 

that it will likely be reversed on appeal. Order of April 7, 

1977, at 5-6. Such a rule would render Rule 62(c), F.R.C.P., 

virtually unusable. Accordingly, Likelihood of success on 

appeal, like the other factors, is not an ironclad require- 

ment, but rather is a consideration to guide the court in 

the exercise of its sound discretion. 

Cases dealing with this petnainle often speak in terms 

of an exception or significant relaxation of the "likelihood 

of success on appeal” element in cases involving novel or 

unsettled questions. Professor Moore, recognizing that "it 

is perhaps unusual" that a district judge could formally find 

a "likelihood" 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- 
tive order +. « « 

7 MOORE'S FEDERAL PRACTICE {62.05 n.l5c. 

Professor Moore cites as examples of stays granted in 

novel cases Bradley v. School Board of the City of Richmond, 
  

456 F.2d 6 (4th Cir. 1972) (school district merging case) 

and Rodriguez v. San Antonio Independent School District, 
  

337 FP. Supp. 280 (W.D. Tex. 1972) (school property tax 

equalization case). Cases specifically recognizing the 

existence of an exception or significant relaxation of the 

first consideration where novel issues are involved include 

Marr v. Lyon, 377 F. Supp. 1146 (W.D. Okla. 1974) and Stop 
  

H-3 Association v. Volpe, 353 F. Supp. 14 (D. Hawaii 1972). 
  

In Marr v. Lyon the court said: 
  

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. . . . 

377 ¥., Supp. at 1148. 

 



  

Several factors bring this case within the novel 

case rule. First, this case, along with the Shreveport 

case, is the first to apply voter dilution principles to 

at-large elections that are an integral part of a commission 

form of government. Second, this case is the first to consider 

in detail the applicability of Washington v. Davis, 426 U.S. 
  

229 (1976), to voter dilution cases and the changes in the 

law, if any, resulting from that Supreme Court decision. The 

correctness of the district court's substantive holding that 

Washington v. Davis does not apply to voter dilution cases 
  

cannot be said to be beyond doubt, particularly in light of 

Supreme Court decisions rendered after that of the district 

court in this case. See the brief of Defendants-Appellants 

on the merits,already on file. 

Third, the district court has ordered a unique remedy; 

it is the first court, as far as Defendants are aware, to 

order a city to change its form of government to remedy the 

existence of (alleged) unconstitutional dilution resulting 

from at-large election of city commissioners. The district 

court itself recognized the uniqueness of this remedy and 

the existence of substantial ground for difference of opinion 

as to its validity by certifying its October 21, 1976, order 

for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). 

The nature and scope of this remedy raise serious issues of 

 



  

federalism and comity that require careful consideration. 

A review of the case law indicates that the district 

court has ample discretion in the circumstances of this case 

to grant the stay requested. In Corpus Christi School District 
  

v., Cisneros, 404 U.S. 1211 (1971), the district court ordered 
  

extensive desegregation of a school district but stayed its 

order pending appeal to the Fifth Circuit. The court of 

appeals vacated the stay even through the appeal had not yet 

been heard. On petition by the school district, Justice 

Black of the Supreme Court reversed the Fifth Circuit and 

reinstated the district court's stay, saying: 

It is apparent that this case is in an 
undesirable state of confusion and presents 
questions not heretofore passed upon by 
the full court, but which should be. Under 
these circumstances, which present a very 
anomalous, new, and confusing situation, 
I decline as a single Justice to upset the 
district court's stay and, therefore, I 

reinstate i€ . . . 
The stay will be reinstated pending action 
on the merits in the Fifth Circuit or 

action by the full court. 

404 U.S. at 1212. 

In Bradley v. School Board of the City of Richmond, 
  

supra, the district court ordered extensive merger of school 

districts to eliminate segregation. The Fourth Circuit granted 

 



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a stay of the district court's order pending resolution of 

the appeal on the merits. The court of appeals ordered the 

defendants to continue planning and preparation for a merger 

of the school districts "to the end that there will be no 

unnecessary delay in the implementation of the ultimate step . . . 

in the event that the order is affirmed on appeal," but 

stayed actual implementation of the merger. 456 F.2d at 7. 

The district court here has taken the same course. 

Finally, the cases discussing the propriety of granting 

stays indicate implicitly, if not explicitly, that a district 

court's finding that it will likely be reversed on appeal is not 

the sine qua non for determining whether to grant a stay. 
  

P.g., Long v. Robertson, 432 F.2d 877 (4th Cir. 1970); Pitcher 
  

  

v. Laird, supra; Belcher v. Birmingham Trust National Bank, 
  
  

supra. In each of these cases the court found that there had 

not been a showing that the applicant was likely to prevail on 

appeal, but it nonetheless continued to examine the presence or 

absence of the other three considerations. It would have been 

pointless for these and other courts to continue to examine the 

other three considerations if a failure to establish the likeli- 

hood of success on appeal was an absolute bar to the issuance 

of a stay. Indeed, in Long v. Robertson, supra, the court 
  

specifically recognized that the decision whether to issue a 

 



FY 

stay required "a balancing of the factors which govern 

the granks. . «+ "432 7.24 at 931. 

As To Plaintiffs' Argument 
That All Elections Should 
Be Stayed Pending Appeal 
  

At the hearing before the district court on March 23, 1977, 

Plaintiffs contended only that mayor-council elections should 

be ordered for August and disclaimed any support for staying 

all elections. However, in their supplemental memorandum 

Plaintiffs argued strenuously, as an alternative, that the 

district court should stay all elections. Plaintiffs continue 

to press that suggestion here. 

The unsupported assertions of Plaintiffs in advancing their 

alternative proposal do not show that the district court, with 

an intimate knowledge of the local political situation, abused 

its discretion in rejecting this alternative. 

ITI. CONCLUSION 

The district court did not abuse its discretion in 

staying its order of March 9, 1977, pending resolution of 

Defendants' appeal.  



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Respectfully submitted on this 25th day of April, 1977. 

OF COUNSEL: 

Hand, Arendall, Bedsole, C. B. Arendall, 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 

City of Mobile Fred G. Collins, City Attorney 
Mobile, Alabama 36602 City Hall 

Mobile, Alabama 36602 
Rhyne & Rhyne 
400 Hill Building Charles  S. Rhyne 
Washington, D. C. 20006 William S. Rhyne 

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

By: SY Ao iledd 2. 
  

Attorneys for Deigndants 

 



  

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CERTIFICATE OF SERVICE 
  

I do hereby certify that I have on this 28 day of 

April, 1977, served a copy of the foregoing Defendants- 

Appellants' Memorandum In Opposition To Plaintiffs-Appellees’ 

Motion For Order Restoring Injunction on counsel for all 

parties to this proceeding, by mailing the same by United 

States mail, properly addressed, and first class postage 

prepaid.