Defendants' Reply Brief to Plaintiffs' Motion for Remand Proceedings

    IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

  

WILEY L. BOLDEN, et al., 

Plaintiffs, : 

VS. CIVIL ACTION NO. 75-297~P 

CITY OF MOBILE, eft al., 

Defendants. 

DEFENDANTS' REPLY BRIEF TO PLAINTIFFS' 
MOTION FOR REMAND PROCEEDINGS 
  

Pursuant to this Court's Order of September 18, 1980, 

Defendants file this reply brief to Plaintiffs' previously 

filed Motion for Remand Proceedings and their brief in 

support thereof. 

Introduction 
  

Obviously, Plaintiffs and Defendants differ radically 

on what issues were left open, even what issues were decided, 

by the Supreme Court. Defendants will not repeat here the 

detailed analysis, contained in their earlier brief, of the 

issues presented to and decided by the Supreme Court. Defen- 

dants will, however, respond to several errors in the Plaintiffs’ 

Brief Supporting Motion for Remand Proceedings (hereinafter 

referred to as Plaintiffs' Brief) filed in this Court. 

A. Fourteenth Amendment Claims 
  

It now appears that Plaintiffs concede that whether the 

at-large commission form of government was established for 
  

discriminatory purposes is precluded from reconsideration by 

this Court but contend that whether it is maintained for such 
  

a purpose is not. This distinction is unsupported by any 

language in any of the opinions by the Supreme Court. 

 



  

To summarize briefly, the essence of the plurality 

holding is as follows. First, "Plaintiff must prove that 

the disputed [electoral] plan was 'conceived or operated as 

[a] purposeful device[] to further racial discrimination.'" 

48 U.S.L.W. at 4439, 64 L. Ed. 24 at 58. i/ Second, "the 

evidence in the present case fell far short of showing that 

appellants 'conceived or operated [a] purposeful device[] 

to further racial discrimination.'" 48 U.S.L.W. at 4440, 

64 L. Ed. 2d at 61. Third, neither the Zimmer analysis, 

the foreseeable consequences test, the lack of any elected 

blacks under the system, discrimination in city services, 

a history of past official racial discrimination, or the 

inherent submerging effect of at-large elections could them- 

selves supply the missing proof of intentional discrimination. 

48 U.S.L.W. at 4440-4441, 64 L. Ed. 2d at 61-63, including 

note 17. As stated by the Supreme Court this additional evidence 

is "far from proof that the at-large electoral scheme represents 

purposeful discrimination against Negro voters." 48 U.S.L.W. 

at 4441, 64 L. Ed. 2d at 63 (emphasis added). Justice Stevens's 

2/ test, of course, is even more stringent. = 

Thus, the legal test adopted by the Supreme Court indicates 

that an electoral plan can be challenged either as it "was 

conceived" or "is operated." "Conceived" is simply another 

word for "created" or "established." "Operated" has the same 

meaning as the phrase "maintained" or, as it is said in Plain- 

tiffs' Brief, "retained." 

It is clear that the plurality holding applied to both 
  

aspects; i.e., the plurality held that the evidence in the 

  

1l/ The plurality added that this "burden of proof is simply 
one aspect of the basic principle that only if there is purpose- 
ful discrimination can there be a violation of the Equal Protec- 
tion Clause of the Fourteenth Amendment." 48 U.S.L.W. at 4439, 

64 L. EG. 24d at 58. 

2/ In fact, a fair reading of Justice Stevens's concurrence is 

that in light of the objectively neutral reasons supporting the 
continued maintenance of Mobile's at-large commission government 
Plaintiffs could not prove a case of liability regardless of what 
additional evidence of discriminatory motive they could come up 
with. 48 U.S.L..W. at 4445-46, 64 L. E4. 24 at 74-75. 

 



  

case fell far short of showing that Mobile's at-large scheme 
  

was either "conceived" or "operated" as a purposeful dis- 

criminatory device. 48 U.S.L.W. at 4440, 64 L. Ed. 24 at 61. 

A review of Justice Stevens's concurring opinion (the fifth 

vote) shows that in reaching his opinion "that no violation 

of respondents' constitutional rights has been demonstrated" 

(48 U.S.L.W. at 4443, 64 1L. Ed. 24 at 69) he considered both 

the questions of the original establishment and the current A 

maintenance of the Mobile form of government. 48 U.S.L.W. at 

4446, 64 L. Ed. 24d at 74 (decision to "retain" present form 

of government cannot be invalidated by presence of some 

illicit motivation). 

Therefore, there is no basis for distinguishing between 

the original creation and the current maintenance of the Mobile 

form of government in deciding what issues, if any, are open 

at this stage. As a matter of fact, if Plaintiffs were correct 

that the statements by the plurality concerning the evidence 

falling "far short" are nothing more that a rejection of the 

Fifth Circuit's Zimmer analysis, then one issue should be 

just as open as the other. 

In short, Defendants adhere firmly to their position 

that, based on the clear and explicit language of both the 

plurality 2/ and Stevens's concurring opinion, 4/ the record 

in this case does not prove a violation of Plaintiffs' con- 

stitutional rights. 5/ Despite the Supreme Court holdings, 

the United States as amicus curiae made the startling argu- 

ment to the Fifth Circuit on remand that the evidence in 

this record would support factual findings of discriminatory 

  

3/ "[T]lhe evidence in the present case fell far short of show- 
ing that the appellants 'conceived or operated [a] purposeful 
device] to further racial discrimination.'" 48 U.S.L.W. at 
4440, 64 L. Ed. 2d at 61 (emphasis added). 

  

4/ "I agree with [the plurality] that no violation of respon- 
dent's constitutional rights has been demonstrated . n 

48 U.S.L.W. at 4443, 64 1. E44, 24 at 69. 

5/ Clearly both the plurality and Justice Stevens ruled on 
both the fourteenth and fifteenth amendment claims. 

 



  

intent. United States Fifth Circuit Amicus Curiae Brief at 

page 12. In other words, even though the four man plurality, 

and Justice Stevens concurring, said that the evidence in 

this case fell "far short" of making the necessary showing, 

it was argued that the Fifth Circuit and this Court could 

based on that same record find that the evidence did, after 

all, make the necessary showing. 

Recognizing the obvious unsoundness of this position, 

Plaintiffs now argue to this Court that the district court 

should not make such ultimate findings without first allowing 

additional evidence to be added to the record. As discussed 

in detail in Defendants' previous brief to this Court, Defen- 

dants know of no authority allowing Plaintiffs, against whom 

no error was committed by any court, such a second chance to 

prove what they failed to prove at the first trial. 8 

First, contrary to Plaintiffs' assertion at page 16, 

the Supreme Court did not "decline[] to consider" the evidence 

presented by Plaintiffs "over and beyond" Zimmer. To the 

contrary, the Supreme Court considered such evidence, and 

found it wanting. 48 U.S.L.W. at 4440-41, 64 L. Ed. 2d at 

60-63. 

Second, there is nothing "fundamentally unfair" in 

limiting the Plaintiffs to one day in court, instead of 

repeated opportunities if their first presentation is found 

insufficient. Only one full opportunity to present one's 

case is a fundamental principle of the American system of 

justice. 

Third, the requirement of the proof of discriminatory 

purpose is not a "new intent standard." Plaintiff's Brief 

at 4. To the contrary, Washington v. Davis was decided before 
  

this case was tried. Defendants argued strenuously in their 

  

6/ See footnote 2 supra. 

 



  

pre-trial pleadings that Washington v. Davis required such 
  

proof of intent and that Zimmer was no longer sufficient to 

prove liability. Plaintiffs argued strenuously to the con- 

trary, but they were wrong. 

Fourth, Plaintiffs cannot claim to have been surprised 

or unaware that they might have to meet the intent standard. 

As indicated, Defendants argued that very point strenuously 

before the case was tried. 

No pre-trial or trial ruling of the district court held 

that such proof was unnecessary or limited or discouraged 

Plaintiffs in any way from putting in whatever evidence they 

had of such discriminatory intent. Plaintiffs in fact put 

on proof going to that issue at trial and, presumably, put 

on all they had. In their post-trial pleadings Plaintiffs 

argued strenuously, as an alternative, that they had in fact 

proved discriminatory intent as required by Washington v. Davis. 
  

They made the same alternative argument to the Fifth 

Circuit. They made the same argument to the Supreme Court, 

although in the Supreme Court they switched tactics and made 

"we proved intent" their first argument, followed by the 

alternative argument that such proof was not necessary since 

proof of discriminatory effect alone was enough. In such 

circumstances Plaintiffs cannot honestly claim surprise or 

that they were mislead in any way or that if they had only 

known they could have put on evidence of discriminatory intent 

to supply what was later found missing by the Supreme Court. 

Neither did the Fifth Circuit in this remand proceeding 

rule as "Plaintiffs . . . had suggested" or direct this Court 

to allow the Plaintiffs a further evidentiary hearing. See 

Plaintiffs' Brief at 2. Rather, the Fifth Circuit, in lan- 

guage almost identical to that used by the Supreme Court, 

 



  

passed these questions back to this Court for initial deci- 

sion. Plaintiffs' argument that the Fifth Circuit meant for 

them to have a new trial to avoid an otherwise sure appeal 

by the Plaintiffs is one-sided since if such a new trial is 

directed by the district court Defendants will as surely 

seek appellate review of that ruling as would the Plaintiffs 

a contrary ruling. 74 

Finally, we note that however "extreme" 8/ Justice 

Stevens's opinion may seem to Plaintiffs, Justice Stevens 

8/ 
will most likely continue to adhere to it. = Thus, regard- 

less of how you attempt to explain it away, there are still 

five votes for the proposition that the evidence in this 

record does not prove a violation of any constitutional (four- 

teenth or fifteenth amendment) rights of the Plaintiffs. 

B. Fifteenth Amendment Claim 
  

Plaintiffs appear to continue to claim that the fifteenth 

amendment issue was not resolved by the Bolden decision. Defen- 

dants disagree. 

Clearly, the four justice plurality heard and decided 

the fifteenth amendment claim. In essence they held that 

Plaintiffs' vote dilution claims could not be maintained under 

that amendment since the district court had found that Negros 

in Mobile "register[ed] and vote[d] without hindrance." 48 U.S.L.W. 

at 4438, 64 L. Ed. 2d at 57. In reaching that conclusion the 

  

7/ Similarly unpersuasive is the contention at page 2 that the 
Fifth Circuit would have reversed this court's prior judgment 
if it had been persuaded by Defendants' arguments. Obviously, 
it is unnecessary to, and the Fifth Circuit cannot, reverse a 
judgment of this court that has already been reversed by the 
Supreme Court. 

8/ Plaintiffs’ Brief at 5. 

9/ Recall that in the Bolden decision itself Justice Stevens 
continued to adhere to his concurring position in Washington 
v. Davis despite the lack so far of support by any other justice 

  

  

for that concurring position. See 48 U.S.L.W. at 4446 n.l2, 
64 L. EA. 2d at 74 n.l2. 

 



  

plurality held "that action by a state that is racially 

neutral on its face violates the fifteenth amendment only 

if motivated by a discriminatory purpose." 48 U.S.L.W. at 
  

4438, 64 L. Ed. 2d at 55 (emphasis added). 

In his concurring opinion Justice Stevens adopted an 

even stricter rule, a rule which he applied to both the 

fourteenth and fifteenth amendment claims. This test, which 

appears to require a showing that discriminatory purpose was 

the sole motivation for the challenged action, is even stricter 

than the test adopted by the four justice plurality, as has 

been repeatedly recognized by both Plaintiffs and the United 

States as amicus curiae. Thus, it is clear that at least 

a five justice majority of the Supreme Court has held that 

in this case Plaintiffs failed to prove discriminatory purpose 

sufficient to constitute a violation of the fifteenth amendment. 

Even if Defendants were deemed incorrect in their analysis 

of the Supreme Court's fifteenth amendment holding, the panel 

opinion in this case held that proof of discriminatory purpose 

was required under the fifteenth amendment, and if the Supreme 

Court did not decide the issue, then that ruling remains the 

law of this case. See Bolden v. City of Mobile, 571 F.2d 238, 
  

241 n.l (5th Cir. 1978) (incorporating parts 1 and 2 of the 

opinion in Nevett v. Sides, 571 F.2d 209, 220-21, (5th Cir. 
  

1978)). 

C. Voting Rights Act Claims 
  

It is correct as Plaintiffs contend that the Supreme 

Court plurality admonished the lower courts for not follow- 

ing the normal rule and deciding the statutory claims before 

the constitutional claims. Such "error," however, is "harm- 

less" in the circumstances of this case because the plurality 

 



  

went ahead and decided that issue itself. Specifically, 

the plurality held that § 2 of the Voting Rights Act con- 

tained the same substantive standard for relief as the fif- 

teenth amendment. 48 U.S.L.W. at 4437, 64 L. Ed. 2d at 54. 

The fifteenth amendment claim having failed for lack of proof, 

the Voting Rights Act claim likewise failed. 

Except for Justice Marshall, no other justice discussed 

the Voting Rights Act claim. Justice Marshall agreed that 

the test under § 2 of the Voting Rights Act was the same as 

the test under the fifteenth amendment, but he disagreed with 

the plurality as to the substance of that test. 

Admittedly the failure of the other four justices to 

speak to the Voting Rights Act issue adds an element of con- 

fusion to the decision. However, the significant point remains 

this. The judgment in favor of the Plaintiffs below was 

reversed on the liability issues by at least a five to four 

vote. There is no legal requirement that a court in reviewing 

and reversing a lower court judgment specifically Biscuss in 

its opinion and rule on each and every legal theory presented 

below any more than it need comment on each piece of evidence 

in the record. 10/ 

Rather, the judgment of the court resolves all issues 

presented to the court and considered by it. See authorities 

discussed in paragraph II(a) of Defendants' previously filed 

Brief in Support of Defendants' Motion to Enter Judgment. Since 

Plaintiffs' Voting Rights Act claim was clearly presented to 

the Supreme Court (see issue three stated in Plaintiffs’ 

Supreme Court brief), the ruling by the Supreme Court against 

the Plaintiffs in reversing this Court's judgment necessarily 

disposed of all claims asserted by Plaintiffs whether or not 

specifically discussed by a majority of the court. 

  

10/ The Supreme Court is not, in fact, required to write any 
opinion at all. 

 



  

Finally, should that point be reached in these remand 

proceedings, Defendants will contend that section 2 of the 

Voting Rights Act contains the same substantive standard 

(a purpose or intent standard) as does the fifteenth amend- 

ment. The plain language of section 2 (and its legislative 

history), in contrast to the quite different "effects" language 

of section 5, so provides, and four justices in Bolden so held. 

Only one, Justice Marshall, and arguably a second, Justice 

Brennen, disagreed. 

D. Other Issues 
  

In their brief Plaintiffs made a number of arguments 

going to the "merits," raising issues which would become 

involved only if further proceedings were undertaken by this 

Court. Defendants do not understand that now is the time to 

address such issues since the Court has indicated that if 

further proceedings are warranted the "re-trial" stage would 

not be reached until after the occurrence of appropriate 

discovery and pre-trial proceedings. Defendants note the 

following points, however, for the Court's consideration. 

If the question of "discriminatory maintenance" has been 

left open by the Supreme Court, a number of issues are pre- 

sented concerning the exact nature of this legal question, 

the type of evidence relevant to it, and the relevant time 

period. For example, the question whether the Mobile city 

commission form of government was established (conceived) 

with the deliberate purpose of diluting black votes through 

the use of the at-large election procedure is relatively 

straightforward. But what is meant when the question is 

asked whether that system is currently "maintained" or "operated," 

or in Plaintiffs' words "retained," for such a discriminatory 

purpose? 

 



- 10 ~ 

  

Does it mean simply that the appropriate officials, 

although they have now recognized the inhibiting effect of 

that system on black votes, have failed to act to change it? 

Does it mean that although the appropriate officials once 

had pure motives they are now deliberately refraining from 

changing the systems on their own initiative, in order to 

have the dilutive effect? Or does it mean that the appropriate 

officials have failed to enact a change requested of them 

because of such motivation? 

Defendants suggest that the first alternative has already 

been rejected by the Supreme Court in the Bolden opinion. See 

48 U.S.L.W. at 4440 n.17, 64 L. Ed. 2d at 61-62 n.l1l7. Where 

there are neutral legitimate reasons for continuing to adhere 

to a system of government the failure to affirmatively act to 

change that system just because the effect of that system on 

black voters has become recognized does not meet the Feeney 

standard of proof. 

Similarly, the second approach is inconsistent with the 

Washington v. Davis, Arlington Heights, Feeney standard. 
  

There is no constitutional right to proportional representa- 

tion. Hence, state officials do not have an affirmative duty 

to, on their own, change an electoral system to ensure or 

make easier proportional representation, even if it be assumed 

that the original valid reason for that system has now dissipated 

and been replaced by an illicit, hidden motivation. The con- 

trary rule would create an affirmative duty on the part of the 

appropriate governmental officials to continually monitor their 

own hearts and, if and when illicit motivation interceded, to 

affirmatively act on their own initiative to change the system 

which has existed for that many years solely because of the 

appearance in their heart of illicit motivation known only to 

themselves. 

 



  

- 11 - 

Now, would the third question be the proper one? Should 

the question be whether state officials have refused to act; 

i.e., refused an appropriate request for action, because of 

race or some other invidious motivation? This was, of course, 

the situation in Village of Arlington Heights where the challenged 
  

action was the city council's refusal to approve a zoning change 

requested by the plaintiff developers in that case. In other 

words, the duty not to be motivated by race in refusing a 

requested change (i.e., the duty to not maintain the system 

because of racial considerations) did not arise until an appro- 

priate request for a change in that system was made. 

These same issues become involved in consideration of 

questions such as the appropriate statute of limitations to 

apply and the relevant time period for evidence of motivation. 

If the Alabama state legislature refuses a requested change 

in the at-large system of government in 1920 because of racial 

motivation, is that decision challengable in 1980? Is such 

evidence even admissible in 1980? If the bare "maintenance" 

of the at-large system by itself is challengable, do Plaintiffs 

have to challenge the maintenance in 1976 when the case was 

hp 
tried or now, in 1980? — 

It would seem that Plaintiffs would have to show at this 
  

time a current purposeful discriminatory maintenance of that 

system. Proof that the system had been maintained for invidious 

purpose at a certain period in the past, without proof of such 

a current purpose, should be insufficient since there would be 

no causation between the prior illicit purpose and the current 

maintenance of the system. 

  

11/ In United Airlines v. Evans, 431 U.S. 553 (1977), the 
  

Supreme Court, although acknowledging that the effect of 
an action taken some time ago may very well exist today, 
the question posed for the statute of limitations was not 
whether there was a present effect, but whether there was 
a present violation. 

  

 



- 10 - 

  

At page 18 of their brief Plaintiffs state that Supreme 

Court precedent "does not require or even encourage the trial 

court to focus on any single legislative event; rather, invi- 

dious intend should be found or not found only after careful 

consideration of the whole series of events, historical and 

contemporary, that underlie the present electoral scheme." 

While Defendants are unsure of the meaning intended for this 

language, they disagree with the idea that the Court could or 

should attempt to answer the abstract question of whether in 

general the current system of government is "maintained" or 

"retained" for an invidiously discriminatory purpose as though 

the system of government were a living organism with motivation 

of its own. The Alabama legislature does not have a motivation, 

only its individual members do. 

Therefore, one cannot simply ask whether a form of govern- 

ment is being maintained for an illicit purpose. The question 

must focus on one or more individual acts of the legislators 

alleged to have been motivated by unlawful purpose. 

Other difficult issues are presented concerning the 

proper scope of evidence relevant to the purpose issue. The 

Supreme Court has already indicated that evidence of the 

responsiveness of city officials to the particularized needs 

of blacks is of "questionable relevance" to the motivation of 

state legislators. Do Plaintiffs contend that the whole area 

of responsiveness of city officials, or at least responsive- 

ness since the original trial, should be gone into again? 

Are racial campaign tactics in local Mobile elections proba- 

tive of the motivation for actions of state legislators? What 

about elections elsewhere in Alabama? Does it matter whether 

the candidates resorting to racial campaign tactics are the 

winners or the losers? Of what relevance are the actions of 

the legislature in years gone by as proof of motivation for 

current legislative action or inaction? 

 



  

- 13 - 

Further, there is the question of whose motive is con- 

trolling on this question. Is it that of a majority of the 

141 legislators in the Alabama House and Senate, and at 

what time? Or is it the motives of those actually voting 

on a particular governmental change bill? What happens if 

the bill was blocked in committee? What if a bill was passed 

(as has happened twice) and the people of Mobile turned it A 

down in a city-wide election? 

No doubt there are many other questions which would arise 

and require resolution if the Court were to grant Plaintiffs’ 

request for further proceedings. This case has gone far enough. 

The Court need not, and should not, embark on an exploration of 

uncharted seas in order to give Plaintiffs a second bite at 

the apple. 

Conclusion 
  

A majority of the Supreme Court both articulated the 

correct legal standards applicable to this case and held 

that the evidence presented by Plaintiffs did not satisfy 

any of those standards. No error disfavoring Plaintiffs 

having been committed by any court, and Plaintiffs having 

had a full, fair opportunity to present at the trial what- 

ever arguments and evidence they had, no additional "second- 

chance" proceedings are warranted. Judgment for the Defen- 

dants should be entered. 

  

C bs 5 /5 / kez do gwd 

Ce. B. ARENDALL, JR. 

Witla, dit 
WILLIAM C. TIDWELL, 

P. O. 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 

CERTIFICATE OF SERVICE 
  

I certify that I have on this 24th 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. 0. 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 

BA / ” 
or 74 ( lr ins a 
  

C. B. ARENDALL, JR./ io