Plaintiffs' Memorandum of Law Supporting Petition for a Permanent Injunction; Plaintiffs' Petition for a Permanent Injunction

    IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

WILEY |. BOLDEN, et al., ) 

Plaintiffs, ) 

VS. ) CIVIL ACTION NO. 75-297-p 
CITY OF MOBILE, ALABAMA, ) 
et al., 

Defendants. ) 

PLAINTIFFS' MEMORANDUM OF LAW SUPPORTING 
PETITION FOR A PERMANENT INJUNCTION 
    

At the hearing on Plaintiffs' Rule 59 motion on 

April 26, 1982, the Court asked the parties to make known 

their positions on the authority of the Court to issue 

immediately an appealable order or judgment. The Court also 

indicated that it will not be inclined to cut short the terms 

of the incumbent City Commissioners and order new elections 

sooner than Auqust 1985. Accordingly, by way of a response, 

Plaintiffs have filed a petition for a permanent injunction. 

 



; 
# 

  

This memorandum of law will address reasons why the 

injunction should be granted. However, should the Court deny 

the injunction, it is Plaintiffs' present intention 

immediately to appeal, so that there may be a timely 

resolution of their claim to expeditious relief. ’ 

An Injunction Should be Entered Where the Court Retains 

Jurisdiction For the Legislature to Enact a New Statute 
  

The Supreme Court has explicitly disapproved the 

procedure of withholding an injunction against an 

unconstitutional or unlawful State statute while inviting the 

Legislature to respond with its own remedy. Gunn Vv.   

University Committee to End the War in Viet Nam, 393 U.S. 
  

383 (1970). This is because "until a district court issues 

an injunction, or enters an order denying one, it is simply 

not possible to know with any certainty what the court has 

decided ..." 1d. at 383, Rule 65{(d), Fed.R.Civ.P., was 

designed to eliminate confusion when a federal court 

determines that a State statute is unconstitutional in 

certain respects. ld. at 389, 

 



That requirement [of Rule 65(d)] is 
essential in cases where private 
conduct is sought to be enjoined, 
as we did in [Longshoremen's Assn. 
Local 1291 v. Philadelphia Marine 
Yrade Assn., 359 U.5. 54, 7/9 (1957}]. 
Tt 1s absolutely vital in a case where 
a federal court is asked to nullify a 
law duly enacted by a sovereign State. 

  

  

The restraint and tact that evidently 

motivated the District Court in refrain- 
ing from the entry of an injunctive order 
in this case are understandable. But when 
a three-judge district court issues an 
opinion expressing the view that a State 
statute should be enjoined as unconsti- 
tutional -- and then fails to follow-up 
with an injunction -- the result is un- 
fortunate at best. For when confronted 
with such an opinion by a federal court, 
state officials would no doubt hesitate 
long before disregarding it. Yet in the 
absence of an injunctive order, they are 
unable to know precisely what the three- 

Judge court intended to enjoin and unable 
as well to appeal to this Court. 

Gunn supra, 399 U.S. at 389-91 (citation omitted). 
  

Garza v. Smith, 450 F.2d 790 (5th Civ. 1971), cited by the 
  

Defendants, failed to take notice of the Supreme Court's 

instructions in Gunn, which was decided a year earlier. More 

recently, the Fifth Circuit has distinquished Garza in a 

manner that directly implies disapproval of its precedential 

value. United States v, Mississippi Power & Light Co., 638 
     



  

F.2d 899, 903, n.4 (5th Cir. 1981). There the Court of 

Appeals accepted appellate jurisdiction over a decision of 

the district court, even though the lower court had failed to 

enter an injunction and had relied instead "on the 

wh
y declaratory force of [its] decisions and on the good faith o 

Sd
 

+
 the parties." Id. at 903. The Fifth Circuit refused to 

follow Garza, because the orders appealed from concerned 

issues that had been remanded to the district court after an 

appeal to the Supreme Court and were, therefore, "in effect a 

continuation of the first appeals." 1d. It concluded that 

the interests of justice and efficiency demanded immediate 

resolution of the case. 638 F.2d at 903, citing Gillespie v. 
  

United States Steel Corp., 379 U.S. 143, 152-53 (1964) 
  

(which dictates that the Court of Appeals should give the 

finality requirement a "practical rather than a technical 

construction" and that the chief countervailing 

considerations are "the inconvenience and costs of piecemeal 

review on the one hand and the danger of denying justice by 

delay on the other"). 

In any event, Plaintiffs have now acted to 

eliminate any uncertainty by petitioning for a permanent 

injunction. Without question, the dissatisfied parties may 

 



  

appeal under 28 U.S.C. §1292(a) (1) if the Court either 

grants or denies the injunctive relief asked for. United 

States v. Mississippi Power & Light Co., supra 638 F.2d at 
  

903. Where, as in the instant case, the timing of relief is 

a critical issue, the parties are entitled to a ruling that 

may be appealed immediately. 

Plaintiffs Are Entitled to Early Interim Elections 
    

If the Alabama Legislature fails or refuses to 

provide a constitutionally acceptable remedy after it next 

convenes, Plaintiffs and the class of black citizens they 

represent are entitled to immediate interim city elections by 

single-member districts, even though the terms of the 

incumbent commissioners must be cut short. Taylor v. Monroe 
      

County Board of Supervisors, 421 F.2d 1038 {5¢h Cir. 1970), 
  

is squarely on point. There the district court had entered 

an order in April 1969 that the Board of Supervisors must be 

reapportioned. The incumbents had begun new terms in January 

1968, which were due to expire in January 1972. The district 

wv
 court refused to order interim elections, the plaintiff 

 



  

appealed, and the Fifth Circuit, on January 14, 1970, 

reversed and remanded with instructions to hold interim 

elections on or before July 1, 1970, if possible. The 1967 

elections had taken place while the case was pending on an 

earlier appeal. Then the Supreme Court extended one person, 

one vote requirements to local governments in Avery v. 
  

Midland County, 390 U.S. 471 (1967), and the Fifth Circuit   

had reversed the judgment of the trial court and remanded 

with instructions that a reapportionment be ordered. ld. at 

1039. In the second appeal, the Fifth Circuit noted the 

teaching of Reynolds v. Sims, 377 U.S. 533 (1964), "that 
  

the holding of court ordered elections is undesirable at best 

caer? 421 F.2d at 1041, But, consistent with the mandate of 

Reynolds that "judicial relief becomes appropriate only when   

a legislature fails to reapportion according to federal 

constitutional requisites in a timely fashion after having 

had an adequate opportunity to do $0," 377 4.5. at 586, the 

Fifth Circuit concluded 

that the trial court should have 
ascertained "expeditiously" just how 
much time and effort would be involved 
in preparing for and holding a special 

 



  

election which would certainly have 

committed legally elected officials to 
have served at least more than half the 
current term of office. 

422 F.2d at 1041. The court noted that at the time the 

district court had denied interim elections 31 of 48 months 

of the incumbents' terms of office were still to run, whereas 

less than 24 of the 48 months remained at the time of the 

Fifth Circuit's decision. 421 F.2d at 1039, n.l. This made 

the choice of equities "more difficult perhaps than it might 

have been if the appeal had been expedited ...." 421 F.2d at 

1039. 

Of special relevance to the instant case is the 

following passage from Taylor: 

Much comfort, it seems, can be 

taken by Plaintiffs-Appelliants from 
the language of this Court in its 
prior decision. Where we spoke of 
“further proceedings expeditiously 
conducted consistently with the holdings 
of the Supreme Court and for appropriate 
relief grounded thereon," we surely 
meant something more than correcting the 
abuse in time for an election for a 
term to commence three and a half years 
in the future. 

421 F.2d at 1042, Surely, in light of the history of this 

case, blacks in Mobile are entitled to no less expeditious a 

 



  

remedy. The incumbent city commissioners began their new, 

four-year terms on October 5, 1981. As of now, they stil] 

have three years and five months of their present terms to 

serve. Jo delay Plaintiffs' relief any longer than the end 

of the next legislative session would be contrary to the 

importance placed on constitutional voting rights by the 

Supreme Court in Reynolds and by the Fifth Circuit in Taylor. 
  

Rodgers v. Commissioners Court of San Augustine 
  

County, 483 F.Supp 779 (E.D.Tex. 1980) (J. Robert HM. 

Parker), summarized the teaching of Taylor v. Monroe County 
  

Board of Supervisors: 
  

Where a Court approved reapportionment 
1s implemented, the general rule is that 
the Plaintiffs do not have a right to an 
immediate election under the newly drawn 
precincts; similarly, the present County 
Commissioners are not entitled to complete 
their terms as a matter of right. Rather, 
the Court is to weigh several factors where 
the Plaintiffs move for a special election 
under the new apportionment scheme, including 
the extent of malapportionment existing under 
the invalid boundary lines: tl he expense, 

Co
d 

rx 

S| 
sill 

time, and effort that would be expended by 
the County Commissioners Court if a special 
election were held; the number of citizens 
that will be deprived of an opportunity to 

he Court declines to shorten the 
ounty Commissioner's term; and 

vote if t 

present C 

 



the basic equities of the respective posi- 
tions of the parties. 

483 F.Supp at 781, citing Taylor and Dollinge: Jefferson sm em — 
  

  

County Commissioners Court, 335 F.S\ r 40, 3 (E.D.Tex.   

1971). 

In the weighing of equities, special elections 

11 should more readily be ordered "in the context of racial 

inequalities or hinderances." Graves v. Barnes, 343 F.Supp. 
    

704, 736 { 1972}, aff'd in part sub nom.White v,. 
    

Regester, 4] S 755 (1973), citing Connor v. Johnson, 
  

  

  

Sims v, Amos, 336 F.Supp 924 
  

(M.D. Ala. 1972), aff'd 409 u.s. ¢ (1972). In Sims v. 
  

Amos, the three-judge court acknowledged its power to order 

mid-term elections, 336 F.Supp. at 940 (see cases cited), 

but declined to do SO, because In the facts of that 

particular case, it would have ‘place[d] too great a burden 

on the State's election officials." There are no similar 

mechanical difficulties preventing the conduct 

elections for the City of Mobile. 

Undersigned counsel has been unable to} 

Cases where the federal appellate courts have approved 

postponement of a remedy for unconstitutional elections  



  

much as three years beyond the judgment of 

unconstitutionality. In Ely v. Kahr, 403 Y4.5. 108 (1971), 
  

the Supreme Court affirmed the district court's decision to 

allow 1970 legislative elections go forward in Arizona under 

the old, malapportioned plan, but the Court instructed the 

trial court to "make very sure that the 1972 elections are 

held under a constitutionally adequate apportionment plan.” 

403 U.S. at 114-15. More recently, the three-judge court in 

Cosner v. Dalton, 522 F.Supp 350, 364 (E.D.Va. 1981),   

permitted impending elections to go ahead as scheduled in 

1981 under the following conditions: 

Because Virginia's citizens are 
entitled to vote as soon as possible 
for their representatives under a 
constitutional apportionment plan, we 
will 1imit the terms of members 
of the House of Delegates elected in 
1981 to one year. We also will direct 
the state election officials to conduct 
a new election in 1982 for the House of 
Delegates under the General Assembly's 
new Act or our own plan. 

  

522 F.Supp at 364 (emphasis added). 

For all of the aforegoing reasons, Plaintiffs pray 

that the Court will grant their Petition for a permanent 

10 

 



  

injunction. 

. . ry ~ 
Respectfully submitted this “/ day of 

1982. 

BLACKSHER, MENEFEE & STEIN, 
405 Van Antwerp Bidg. 
P. 0. Box 1051 

Mobile, Alabama 36633 

! ‘4 / £7 /) 

BY XY IL hold 7A fA 

Y3 2 
Lhe » 

J 

  

IFA £5 U. BLACKSHER 

\/ LARRY T. MENEFEE 

EDWARD STILL 

Reeves & Still 

Suite 400, Commerce Center 
2027 First Avenue, North 
Birmingham, Alabama 3520 

JACK En sanERS 
NAPOLEON B. ILLIAMS 
Legal tose Fund 
Suite 2030 

10 Columbus Circle 
wv New York, New York 10019 

Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 
            

I do hereby certify that on May 7, 1982 a copy 

11 

3 

 



  

foregoing document was served upon counsel of record: 

Charles B. Arendall, Jr., Esquire, William C. Tidwell, 

~ 
[+] Jedsole, Greaves & Johnston, P. 

Esquire, Hand, Arendall, 

Box 123, Mobile, Alabama 36601, Roderick P. Stout, Esquire, 

City Attorney, City Hall, Mobile, Alabama 36602, Charles 

Rhyne, Esquire, and William S. Rhyne, Esquire, 1000 

Connecticut Avenue, N.W., Suite 800, Washington, D.C. 2003 J ’ 

Paul F. Hancock, Esquire and J. Gerald Hebert, Esquire, 

Civil Rights Division, Department of Justice, 10th and 

Constitution Avenue, N.W., Washington, D.C. 20530. b ] y DY 

iil, 

0. 

S. 

depositing same in the United States mail, postage prepaid or 

by hand. 

  

A TE : / 
7 [Ly / ) If 

JV AV ¢ fig Ul A 
ATTORNEY FOR PLATHTIFF T - 
\ 

12 

 



  

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY L. BOLDEN, ef al., ) 

Plaintiffs, ) 

VS. ) CIVIL ACTION NO. 75-297-P 

CITY OF MOBILE, ALABAMA, ) 
et al., 

Defendants. ) 

PLAINTIFFS' PETITION FOR A PERMANENT INJUNCTION 
  

Plaintiffs Wiley L. Bolden, et al., through their 

undersigned counsel, would show unto the Court as follows: 

1. On April 15, 1982, this Court entered its 

Opinion and Order making findings of fact and conclusions of 

law as directed by the Court of Appeals, which vacated and 

remanded this Court's earlier judgment of October 22. 1976. 

In said Opinion and Order the Court held that the present 

at-large plan for electing Mobile City Commissioners violates 

Section 2 of the Voting Rights Act of 1965 and the fourteenth 

and fifteenth amendments. It withheld entry of a remedial 

order to provide the State an opportunity to enact a 

constitutional election plan "reasonably prior to a city 

election in August, 1983." The Court further announced that 

it will develop and implement its own remedial plan, upon 

motion of one of the parties or on its own motion, if it 

appears that the legislature will not respond in time for the 

1983 elections. 

2. On April 20, 1982, Plaintiffs filed a motion 

pursuant to Rule 59, Fed.R.Civ.P., asking the Court to 

1 
: | 

 



  

certify pursuant to Rule 54(b) that its ruling on the 

unconstitutionality and unlawfulness of the at-large system 

was final and appealable, notwithstanding the pendency of 

other claims in this action. 

3. On April 26, 1982, the Defendants filed a 

response to Plaintiffs' Rule 59 motion, urging that said 

motion be denied and that this Court not enter a final and 

appealable judgment until it becomes necessary for it to 

enter a remedial injunction. 

4. A hearing on Plaintiffs' Rule 59 motion was 

held on April 26, 1982, at which time this Court gave both 

sides additional time to respond to the aforesaid arguments 

of the Defendants regarding this Court's authority to issue 

an appealable order. At this hearing, undersigned counsel 

understood the Court to repudiate our interpretation of the 

April 15 Opinion and Order to the effect that the Court would 

require mid-term city elections in August 1983. We 

understood the Court to say that it had no intention of 

cutting short the terms of the present city commissioners, 

which do not expire until 1985, that in 1983 the Court will 

only specify the type of election plan it will order, and 

that the Court will likely stay such order pending the final 

outcome of an expected appeal by the .Defendants. The Court 

further indicated, at least tentatively, that it will not be 

inclined to issue an appealable order on the merits until it 

issues a remedial order in 1983. 

5. To delay relief by way of single-member 

district elections until August 1985 would be inequitable and 

unjust to the class of black citizens whose fundamental 

constitutional and statutory voting rights are presently 

being denied. It would also work an intolerable inversion of 

 



  

constitutional priorities. Deference to the State 

Legislature in the remedial process must be properly balanced 

against the equally important requirement of providing a 

speedy remedy for constitutional wrongs. 

6. Plaintiffs and the class they represent are 

entitled to mid-term elections in August 1983, whether those 

elections are held pursuant to a plan adopted by the 

Legislature or one adopted by the Court. Plaintiffs filed 

this lawsuit on June 9, 1975. A judgment that the at-large 

city election system was unconstitutional was originally 

entered on October 22, 1976. That judgment has now survived 

a lengthy appeal, a fundamental change in the standard of 

proof announced by the Supreme Court, and lengthy remand 

proceedings. This Court's Opinion and Order of April 15, 

1982, reaffirms that black citizens were entitled to 

single-member district elections in 1977. 

7. The provision of speedy relief from the 

existing unconstitutional and unlawful election system is an 

urgent matter. According to principles established by the 

Supreme Court, this Court should withhold that remedy only 

long enough to give the Legislature a reasonable opportunity 

to adopt its own constitutional election plan. There will 

Tikely be at least one Special Session of the Legislature in 

1982. 

8. The concern announced by this Court for 

preserving the full terms in office of the incumbent city 

commissioners, in light of the history of this case and in 

light of the fundamental importance of the constitutional 

wrong, is not an adequate justification for postponing 

remedial elections to August 1985. Plaintiffs did not oppose 

the conduct of at-large elections in 1981 pending the outcome 

 



  

of trial proceedings on remand because they shared the belief 

that the citizens of Mobile should not be unduly denied the 

opportunity to vote on their city officials. Plaintiffs were 

not informed by the Court at that time that the Court would 

be inclined to allow the at-large elected officials to serve 

out their full terms. If Plaintiffs had known that they were 

faced with a choice of opposing elections in 1981 or 

postponing the opportunity for remedial elections until 1985, 

they would have reluctantly sought a stay of the 1981 

elections. 

9. There is another important reason why this 

Court should enter a permanent injunction immediately against 

the existing at-large system. The Supreme Court has said 

repeatedly that, when State statutes are declared 

unconstitutional, it is critically important that the 

provisions of Rule 65(d), Fed.R.Civ.P., be fully complied 

with: 

Every order granting an injunction 
and every restraining order shall set 
forth the reasons for its issuance; 
shall be specific in terms; shall 
describe in reasonable detail, and 
not by reference to the complaint 
or other document, the act or acts 
sought to be restrained 

Without a permanent injunction specifying in what particulars 

the present Mobile city form of government and its election 

system are objectionable, the Defendants and the Alabama 

Legislature will not be provided adequate notice of what 

legislative response is constitutionally required. For 

example, there has already been speculation whether the 

necessary implication of this Court's April 15 Opinion is 

that the entire commission form of government is 

unconstitutional and unlawful. It has never been Plaintiffs’ 

 



  

contention that the commission form of government itself must 

be changed in order to provide black citizens adequate 

relief. Only the at-large election system needs to be 

changed to single-member districts. The Court's expression 

& 

of concern on p. 60 of its Opinion that imposing 

single-member districts on the commission form might cause 

One person, one vote problems can be remedied simply by 

enjoining that feature of the commission form of government 

which requires or permits the commissioners to assign 

themselves separate executive department head duties either 

before or after their elections. These questions illustrate 

the need for a specific permanent injunction to provide the 

State a fair opportunity to produce an adequate remedy. 

10. In addition, the permanent injunction should 

specify that remedial elections must take place as soon as 

practicable and in no event later than August 1983. This 

would not only make it clear that Plaintiffs and the class of 

black citizens would receive timely constitutional relief, 

but it would provide the State with sufficiently specific 

notice of when it must make a legislative response and would 

provide the Legislature an opportunity to design 1982 or 1983 

elections into the law. 

11. In addition, the permanent injunction prayad 

for herein should specify, by reference to Rule 54(b), 

Fed.R.Civ.P., or otherwise that it is an appealable order in 

order to provide a prompt opportunity for review of all 

aspects of this Court's judgment by the Court of Appeals. 

Plaintiffs submit that this Case was remanded by the Court of 

Appeals with instructions for a prompt consideration of the 

issues left open by the Supreme Court with the intention that 

resolution of these issues by the trial court be promptly 

 



  

reviewable on appeal. 

WHEREFORE plaintiffs pray that the Court will 

immediately enter a permanent injunction in the form 

specified by Rule 65(d), Fed.R.Civ.P., restraining the 

Defendants, their successors, officers, agents, attorneys, 

employees, and those acting in concert with them or at their 

direction, from: 

(1) conducting any further elections of Mobile 

City Commissioners on an at-large basis; 

(2) assigning separate executive duties or 

responsibilities to individual City Commissioners, either 

prior to or following their election; 

(3) failing to conduct new elections for the 

government of the City of Mobile as soon as practicable 

after the first special session of the Alabama Legislature in 

1982, either utilizing a new method of election adopted by 

the State and approved by this Court as a constitutionally 

and legally adequate response to this Court's judgment or 

electing new city commissioners under the present form of 

government from three single-member districts. 

Plaintiffs further pray that said injunction 

contain provisions: 

(4) that on its own motion or the motion of the 

parties the Court will set a hearing at which the Court will 

consider proposals for the boundaries of three single-member 

commissioner districts, if after a reasonable time the Court 

has not approved a lawful and constitutional remedy adopted 

by the State; and 

(5) retaining jurisdiction of this action for 

subsequent consideration of the amount of attorneys' fees, 

 



  

costs and expenses to which plaintiffs are entitled and to 

insure full compliance with the orders and decrees of the 

Court. 

Plaintiffs further pray that the Court will 

promptly consider this Petition for a permanent injunction 

and, should it be inclined not to grant the relief requested 

herein, that it promptly enter an order denying this Petition 

in whole or in part, in order that Plaintiffs may promptly 

appeal and seek the speedy relief to which they are 

constitutionally and legally entitled. 

Respectfully submitted this 7/ day of May, 1982. 

BLACKSHER, MENEFEE & STEIN, P.A. 
405 Yan Antwerp Bldg. 
P. 0. Box 1051 
Mobile, Alabama 36633 

  

EDWARD STILL 
Reeves & Stil] 

Suite 400, Commerce Center 
2027 First Avenue, North 
Birmingham, Alabama 35203 

JACK GREENBERG 

NAPOLEON B. WILLIAMS 

Legal Defense.Fund 
Suite 2030 
10 Columbus Circle 

New York, New York 10019 

Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 
  

I do hereby certify that on _/ day of May, 1982 

a copy of the foregoing PLAINTIFFS' PETITION FOR A PERMANENT 

INJUNCTION was served upon counsel of record: Charles B. 

 



  

4 Arendall, Jr., Esquire, William C. Tidwell, }I1, Esquire, 

Hand, Arendall, Bedsole, Greaves & Johnston, P. 0. Box 123, 

Mobile, Alabama 36601, Roderick P. Stout, Esquire, City 

Attorney, City Hall, Mobile, Alabama 36602, Charles S. 

Rhyne, Esquire, and William S. Rhyne, Esquire, 1000 

Connecticut Avenue, N.W., Suite 800, Washington, D.C. 20036, 

Paul F. Hancock, Esquire and J. Gerald Hebert, Esquire, 

Civil Rights Division, Department of Jus tice, 10th and 

Constitution Avenue, N.W., Washington, D.C. 20530, and 

William Bradford Reynolds, Esquire, Assistant Attorney 

General, Department of Justice, Washington, D.C. 20530, by 

depositing same in the United States mail, postage prepaid or 

by hand. 

  

[dr iis 

i nti asta: