Fikes v. Alabama Index
Public Court Documents
January 1, 1956

Cite this item
-
Case Files, Bolden v. Mobile Hardbacks and Appendices. Defendants' Reply Brief to Plaintiffs' Motion for Remand Proceedings, 1980. 5a0b1289-cdcd-ef11-8ee9-6045bddb7cb0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/343644c3-237e-49ee-b9b6-bf1a736bc998/defendants-reply-brief-to-plaintiffs-motion-for-remand-proceedings. Accessed August 19, 2025.
Copied!
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