Defendants-Appellants' Memorandum in Opposition to Plaintiffs-Appellees' Motion for Order Restoring Injunction
Public Court Documents
April 25, 1977

13 pages
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Case Files, Bolden v. Mobile Hardbacks and Appendices. Defendants-Appellants' Memorandum in Opposition to Plaintiffs-Appellees' Motion for Order Restoring Injunction, 1977. 4212c55a-cdcd-ef11-b8e8-7c1e520b5bae. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/3265cd1f-fcc2-4813-96cc-6f9e6247ae3b/defendants-appellants-memorandum-in-opposition-to-plaintiffs-appellees-motion-for-order-restoring-injunction. Accessed July 13, 2025.
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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 —- 10 - 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. - 12 - 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 - 13 - 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.